DES MOINES, Iowa (AP) — Lawyers for Iowa’s largest abortion provider argued in court documents Tuesday that there’s no precedent or legal support for bringing back a law banning most abortions, which a judge had permanently blocked in 2019.
Planned Parenthood’s lawyers from the American Civil Liberties Union of Iowa were responding in state court filings to arguments made by lawyers for Republican Gov. Kim Reynolds last month.
Reynolds contends that recent decisions by both the Iowa and U.S. Supreme Court have changed the legal landscape, and states must individually decide whether abortion is legal. The governor says these changes justify reversing a state court judge’s decision that the abortion ban law was unconstitutional — and therefore unenforceable. Reynolds did not appeal the decision at the time.
The judge based his opinion on U.S. Supreme Court precedent, as well as an Iowa Supreme Court decision in 2018 that declared abortion a fundamental right under the Iowa Constitution.
The 2018 law would block abortions once cardiac activity can be detected, usually around six weeks of pregnancy and before many women know they’re pregnant. The law contains exceptions for medical emergencies including threats to the mother’s life, rape, incest, and fetal abnormality.
Current Iowa law bans abortions after 20 weeks of pregnancy. Abortions up to that point remain legal in the state.
ACLU lawyers argue there is no precedent to reverse a case finalized years ago. They said that in Iowa, even though the state Supreme Court removed the fundamental abortion protections in its June decision, abortion remains legal under earlier court decisions that have not been reversed.
ACLU of Iowa Legal Director Rita Bettis Austen said the governor’s recourse should be to go back to the legislature and pass a new law instead of trying to resurrect one declared void years ago.
She said in court documents that if the state wants to ban abortion at six weeks “and believes it has the authority to do so consistent with the Constitution, it may instead petition the current Iowa Legislature to pass such a law now, rather than attempting to revive a law that was clearly unconstitutional and void at the time it was passed by an earlier legislature.”
The judge in the case has given Reynolds lawyers until Sept. 26 to file a response and has set a court hearing for Dec. 28.
Reynolds, who has made clear her intentions to end most abortions in Iowa, decided to turn to the courts to impose stricter abortion limits instead of calling a special session of the legislature to pass a new law.
The strategy was likely to avoid a noisy political debate weeks before the November election where she and GOP legislative leaders are seeking reelection. And abortion may not be a winning political issue for Republicans, since 60% of Iowans support keeping abortion legal in most or all cases, according to a Des Moines Register Iowa poll from July. The poll results indicated 34% favored making abortion illegal in most or all cases.
A statewide vote in traditionally conservative Kansas last month came down decisively in favor of abortion rights.
Laws such as Iowa’s ban abortion when a “fetal heartbeat” can be detected, though that does not easily translate to medical science. That’s because at the point where advanced technology can detect that first visual flutter, the embryo isn’t yet a fetus, and it doesn’t have a heart. An embryo is termed a fetus eight weeks after fertilization.