Planned Parenthood of the Heartland, Inc., and Jill Meadows, M.D. v. Kim Reynolds ex rel. State of Iowa and Iowa Board of Medicine

• Court: Supreme Court of Iowa
• Decided: June 17, 2022
• Docket: 21-0856
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 21–0856

Submitted February 23, 2022—Filed June 17, 2022 Amended August 24, 2022

PLANNED PARENTHOOD OF THE HEARTLAND, INC., and JILL MEADOWS, M.D.,

Appellees,

vs.

KIM REYNOLDS ex rel. STATE OF IOWA and IOWA BOARD OF MEDICINE,

Appellants.

Appeal from the Iowa District Court for Johnson County, Mitchell E.

Turner, Judge.

In a case challenging the constitutionality of a law mandating a 24-hour

waiting period for an abortion, the defendant state officials appeal the district

court’s grant of summary judgment to the abortion-provider plaintiffs.

REVERSED AND REMANDED.

Mansfield, J., delivered the opinion of the court, in which Waterman and

Oxley, JJ., joined, and in which McDonald and McDermott, JJ., joined as to

parts II, III, and IV.A–E, and in which Christensen, C.J., joined as to parts II, III,

and IV.A–B. McDermott, J., filed an opinion concurring in part and dissenting in

part, in which McDonald, J., joined. Christensen, C.J., filed an opinion 2

concurring in part and dissenting in part, in which Appel, J., joined as to parts

I–II. Appel, J., filed a dissenting opinion.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, Samuel P. Langholz (argued) and Thomas J. Ogden, Assistant Attorneys

General, for appellants.

Rita Bettis Austen (argued) of American Civil Liberties Union of Iowa

Foundation, Des Moines, Alice J. Clapman, Camila Vega, and Christine Clarke

(until withdrawal) of Planned Parenthood Federation of America, Washington,

D.C., for appellees.

Alan R. Ostergren, Des Moines, for amici curiae Kirkwood Institute, Inc.

and Members of the 89th General Assembly of Iowa.

Christopher P. Schandevel (argued) of the Alliance Defending Freedom,

Ashburn, Virginia, Kevin H. Theriot and Elissa Graves of the Alliance Defending

Freedom, Scottsdale, Arizona, and Chuck Hurley of the Family Leader,

Urbandale, for amici curiae 60 Members of the Iowa Legislature.

W. Charles Smithson, West Des Moines, Robert J. Bird, Jr., Dexter, and

Jake Heard, Urbandale, for amici curiae Ten Iowa State Senators. 3

Michael Streit and Colin C. Smith of Sullivan & Ward, P.C., West Des

Moines, for amicus curiae League of Women Voters (Iowa Chapter).

Elizabeth A. Battles, Des Moines, and Joshua Opperman, Des Moines, for

amici curiae Iowa Coalition Against Domestic Violence and Iowa Coalition

Against Sexual Assault.

Thomas W. Foley of RSH Legal, Cedar Rapids, for amici curiae University

of Iowa and Drake University Law Professors.

James C. Larew and Deborah K. Svec-Carstens of Larew Law Office, Iowa

City, for amici curiae 33 Iowa State Legislators.

Kimberly A. Parker, Lesley Fredin McColl, and Nickole Medel of Wilmer

Cutler Pickering Hale and Dorr, LLP, Washington D.C., Alan Schoenfeld of

Wilmer Cutler Pickering Hale and Dorr, LLP, New York, New York, and Paige

Fiedler of Fiedler Law Firm, PLC, Johnston, for amici curiae the American College

of Obstetricians and Gynecologists, the American College of Physicians, the

American Gynecological & Obstetrical Society, the American Medical

Association, the Iowa Medical Society, the American Medical Women’s

Association, the American Psychiatric Association, the Council of University

Chairs of Obstetrics and Gynecology, Iowa Chapter of the American Academy of

Pediatrics, the North American Society for Pediatric and Adolescent Gynecology, 4

the National Association of Nurse Practitioners in Women’s Health, the Society

of Family Planning, the Society of Gynecological Oncology, the Society for

Maternal-Fetal Medicine, and the Society of OB/GYN Hospitalists. 5

MANSFIELD, Justice.

I. Introduction.

In this case, we again consider the right to an abortion under the Iowa

Constitution. The right to an abortion under the Federal Constitution is framed

by two landmark cases: Roe v. Wade, 410 U.S. 113 (1973), and Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Roe first

recognized a federal constitutional right to an abortion. 410 U.S. at 153. Casey,

in a plurality opinion, held that regulations and restrictions on abortion before

viability should be evaluated under an undue burden test. 505 U.S. at 878–79.

In 2015, this court applied the federal Casey undue burden test under the

Iowa Constitution. See Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of

Med. (PPH I), 865 N.W.2d 252, 269 (Iowa 2015). We found that a statewide ban

on telemedicine medication abortions, adopted by the board of medicine when it

was otherwise approving the use of telemedicine, violated the Iowa Constitution.

Id. Notably, Planned Parenthood had wanted us to recognize a state

constitutional right to abortion that was broader than the federal constitutional

right. Id. at 262 n.2. We did not reach that issue because we found the

telemedicine ban was unconstitutional even under the federal undue burden

test, a test that the State had conceded was applicable under the Iowa

Constitution. Id. at 262–63.

Three years later, in Planned Parenthood of the Heartland v. Reynolds

(PPH II), we confronted a mandatory 72-hour waiting period for abortion that the

legislature had enacted in 2017. 915 N.W.2d 206, 220–21 (Iowa 2018). This time 6

we rejected the undue burden test. Id. at 240. Instead, we found that the Iowa

Constitution—specifically, the due process clause—protected abortion as a

fundamental right. Id. at 237–38. We determined that the waiting period could

not survive strict scrutiny under that test and struck it down as

unconstitutional. Id. at 244.

In 2020, in the waning hours of a legislative session that had been

disrupted by COVID-19, the general assembly added a mandatory 24-hour

waiting period for abortion to pending legislation limiting courts’ ability to

withdraw life-sustaining procedures. The 24-hour waiting period involved the

same period of time that the United States Supreme Court had upheld in Casey.

505 U.S. at 844. Yet Planned Parenthood sued successfully in district court to

block the statute from taking effect. The district court granted summary

judgment to Planned Parenthood on two alternative grounds. First, it reasoned

that the 2020 legislation violated the single-subject rule of the Iowa Constitution

(article III, section 29) and, second, it concluded that our decision in PPH II

invalidating a 72-hour waiting period had issue preclusive effect.

The State appeals. It argues that the 2020 legislation did not embrace more

than “one subject, and matters properly connected therewith.” Iowa Const.

art. III, § 29. It also argues that issue preclusion doesn’t apply and doesn’t bar

the State from seeking to overrule PPH II.

Today, we decide only the issues that the parties have presented to us in

the current procedural posture of the case. On the single-subject rule, we

conclude that a limit on abortion and a limit on withdrawing life-sustaining 7

procedures both pertain to the subject of “medical procedures,” as stated in the

bill’s title. Therefore, no violation of the single-subject rule took place.

As to issue preclusion, we agree with the State that a 72-hour waiting

period and a 24-hour waiting period are not identical. We also agree that issue

preclusion does not bar a state’s highest court from revisiting its decision on a

broad question of constitutional law such as the right to an abortion. And,

finally, we hold that any subsidiary fact-findings we made in PPH II occurred

within a constitutional framework that placed every burden of persuasion and

proof on the State. If we overrule that broad constitutional framework, as the

State urges, the findings cannot have preclusive effect. Accordingly, after

carefully considering the parties’ arguments, we decide that PPH II can and

should be overruled.

Although we overrule PPH II, and thus reject the proposition that there is

a fundamental right to an abortion in Iowa’s Constitution subjecting abortion

regulation to strict scrutiny, we do not at this time decide what constitutional

standard should replace it. As noted, in PPH I, we applied the undue burden test

under our constitution when the State conceded that it applied. An amicus

curiae argues that we should hold that the rational basis test applies to abortion

regulations. But the State takes no such position; it simply asks that PPH II be

overruled and stops there. Moreover, the State did not seek summary judgment

below (except as to the single-subject rule); it argued only that Planned

Parenthood should not prevail as a matter of law based on issue preclusion. 8

In addition, we are not blind to the fact that an important abortion case is

now pending in the United States Supreme Court. See Dobbs v. Jackson Women’s

Health Org., 141 S. Ct. 2619 (2021) (Mem.) (granting certiorari). That case could

alter the federal constitutional landscape established by Roe and Casey.1 While

we zealously guard our ability to interpret the Iowa Constitution independently

of the Supreme Court’s interpretations of the Federal Constitution, the opinion

(or opinions) in that case may provide insights that we are currently lacking.

Hence, all we hold today is that the Iowa Constitution is not the source of

a fundamental right to an abortion necessitating a strict scrutiny standard of

review for regulations affecting that right. For now, this means that the Casey

undue burden test we applied in PPH I remains the governing standard. On

remand, the parties should marshal and present evidence under that test,

although the legal standard may also be litigated further.

Accordingly, we reverse the district court’s grant of summary judgment to

Planned Parenthood and remand for further proceedings consistent with this

opinion.2

1The Supreme Court has granted certiorari on “Question1 presented by the petition.” Dobbs, 141 S. Ct. at 2620. That question presented the issue of “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” Petition for Writ of Certiorari, Dobbs v. Jackson Women’s Health Org., ___ S. Ct. ___, ___ (2022) (No. 19–1392), 2020 WL 3317135, at *i. The petitioners ask that Roe and Casey be overruled. See id. at ___ n.1, 2020 WL 3317135 at *5 n.1. 2In parts IV.A–B, this opinion speaks for a six-justice majority of this court. In parts

IV.C–E, this opinion speaks for a five-justice majority of this court. Part IV.F is joined by a plurality of three justices. Two justices dissent from part IV.F because they would rule at this time that the 24-hour waiting period should be considered under a rational basis test. Two other justices would reaffirm PPH II and find that the 24-hour waiting period does not survive strict scrutiny. 9

II. Background Facts and Proceedings.

A. Legislative History of House File 594. House File 594 (HF 594) was

introduced in the Iowa House of Representatives on March 4, 2019. Bill History

for House File 594, The Iowa Legislature [hereinafter Bill History HF 594],

https://www.legis.iowa.gov/legislation/billTracking/billHistory?ga=88&billNa

me=HF594 [https://perma.cc/WJ9A-SU2U]. The original version of the bill,

designated as “House File 233” at the time, was entitled, “An Act relating to

limitations regarding the withdrawal of a life-sustaining procedure from a minor

child.” H.F. 233, 88th G.A., 1st Sess. (Iowa 2019). It stated the following:

A court of law or equity shall not have the authority to require the withdrawal of life-sustaining procedures from a minor child over the objection of the minor child’s parent or guardian, unless there is conclusive medical evidence that the minor child has died and any electronic brain, heart, or respiratory monitoring activity exhibited to the contrary is a false artifact. For the purposes of this section, “Life-sustaining procedure” means the same as defined in section 144A.2.

Id. § 1. This language passed the house on March 11, 2019, by a vote of 58–36.

H. Journal, 88th G.A., 1st Sess., at 492 (Iowa 2019).

The bill then went to the senate and was assigned to the judiciary

committee. Bill History HF 594. The judiciary committee recommended the bill’s

passage on April 2. Id. But shortly afterward, the bill was placed on the

Under the narrowest grounds doctrine, part IV.F sets forth the disposition of this case. For example, in Godfrey v. State, where three justices joined the lead opinion to reverse the district court, and three justices dissented and would have affirmed the district court, the dispositive opinion was that of the Chief Justice, whose opinion reversed the district court but did so on a narrower basis than the lead opinion. See 898 N.W.2d 844, 880–81 (Iowa 2017) (Cady, C.J., concurring in part and dissenting in part); see also Wagner v. State, 952 N.W.2d 843, 858 (Iowa 2020) (describing the Chief Justice’s opinion in Godfrey as “dispositive”). 10

unfinished business calendar, where it remained for over a year until June 13,

2020. Id.

The 2020 legislative session was an unusual one because of COVID-19.

On March 16, as the pandemic was sweeping the nation, the house and senate

suspended proceedings. See S. Journal, 88th G.A., 2d Sess., at 620–22 (Iowa

2020) [hereinafter S.J.]; H. Journal, 88th G.A., 2d Sess., at 605 (Iowa 2020)

[hereinafter H.J.]. On June 3, the general assembly resumed its abbreviated

session with certain health precautions in place. S.J. at 633; H.J. at 606. It was

anticipated that the remainder of the session would be brief.

In the afternoon of June 13, the senate floor manager for HF 594 proposed

a technical amendment, S–5151, to break the bill into subparts and add a

definition of the term “minor.” S.J. at 811–12, 1133–34. During floor debate on

the amendment, three senators questioned the need for these changes. Senate

Video HF 594 – Life Support for Minor, Iowa Legislature, at 4:03:35–4:13:20 PM

(June 13, 2020) [hereinafter Senate Video], https://www.legis.iowa.gov/

dashboard?view=video&chamber =S&clip=s20200613085856120&dt=2020-06-

13&offset=25405&bill=HF%2059 4&status=i. One of those senators predicted

the house would make abortion-related changes to the bill and send it back to

the senate later that night. Id. at 4:10:50 PM. The technical amendment passed,

32–17. S.J. at 812.

HF 594 returned to the house, where another amendment, H–8314, was

proposed. H.J. at 758. This amendment made two changes. First, it amended

Iowa Code section 146A.1(1) (2019) so as to require a 24-hour rather than a 11

72-hour waiting period for performing an abortion. H.J. at 1391–92. The 72-hour

waiting period had been found unconstitutional by our court in 2018. See PPH II,

915 N.W.2d at 246. Second, the amendment revised the title of the underlying

legislation to read: “An Act relating to medical procedures including abortion and

limitations regarding the withdrawal of a life-sustaining procedure from a minor

child.” H.F. 594, 88th G.A., 2d Sess. (Iowa 2020) (emphasis added); H.J. at 1392.

A representative raised a point of order that, under the house rules, the

amendment was not germane, stating, “I’m very confused on this amendment.

Somehow, we ended up with an abortion amendment on a limitations on life-

sustaining procedure [bill]. I’d ask the Speaker if this amendment is in fact

germane because it doesn’t appear to even relate to anything in the bill.” House

Video HF 594 – Life Support for Child, Iowa Legislature, at 10:20:41 PM (June 13,

2020) [hereinafter House Video], https://www.legis.iowa.gov/dashboard?view=

video&chamber=H&clip=h20200613100758317&dt=2020-06-13&offset=598&

bill=HF%20594&status=i. The acting speaker of the house agreed: “[Y]our point

is well taken, the amendment is not germane.” Id. at 10:21:08 PM. The

amendment’s sponsor moved to suspend the house rules. H.J. at 758. This

motion passed 52–43. H.J. at 758–59. After approximately thirty-five minutes of

debate, amendment H–8314 passed 53–42. House Video at 10:24:00–10:59:35

PM; H.J. at 759–60. HF 594, as amended, later passed by the same 53–42

margin. H.J. at 762.

The senate took up amended HF 594 with the waiting-period language

approximately five hours later. Senate Video at 04:22:01 AM. By now, it was early 12

morning on June 14. After debating the bill for over an hour, the senate passed

it around 5:40 a.m. by a vote of 31–16. Id. at 04:23:50–05:41:23 AM. The

Governor signed the bill into law two weeks later, on June 29. H.F. 594, 88th

G.A., 2d Sess. (Iowa 2020).3

B. Current Requirements of the Challenged Statute. Iowa Code section

146A.1 (2021) now requires the following steps to occur at least 24 hours before

a physician may perform an abortion:

146A.1 Prerequisites for abortion — licensee discipline.

1. A physician performing an abortion shall obtain written certification from the pregnant woman of all of the following at least twenty-four hours prior to performing an abortion:

a. That the woman has undergone an ultrasound imaging of the unborn child that displays the approximate age of the unborn child.

b. That the woman was given the opportunity to see the unborn child by viewing the ultrasound image of the unborn child.

c. That the woman was given the option of hearing a description of the unborn child based on the ultrasound image and hearing the heartbeat of the unborn child.

d. (1) That the woman has been provided information regarding all of the following, based upon the materials developed by the department of public health pursuant to subparagraph (2):

(a) The options relative to a pregnancy, including continuing the pregnancy to term and retaining parental rights following the child’s birth, continuing the pregnancy to term and placing the child for adoption, and terminating the pregnancy.

3It may be worth noting that in 2021, both the house and the senate approved a constitutional amendment as follows: “[W]e the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.” 2021 Iowa Acts ch. 187, § 26. To go into effect, this amendment would have to be approved by both houses of the next general assembly that takes office after the 2022 general election and by the voters of Iowa. See Iowa Const. art. X, § 1. 13

(b) The indicators, contra-indicators, and risk factors including any physical, psychological, or situational factors related to the abortion in light of the woman’s medical history and medical condition.

These requirements do not apply in the case of a medical emergency. Id.

§ 146A.1(2).

A physician who violates this section is subject to licensee discipline. Id.

§ 146A.1(3). But the section “shall not be construed to impose civil or criminal

liability on a woman upon whom an abortion is performed.” Id. § 146A.1(4).

In Casey, as noted, the Supreme Court had upheld a similar 24-hour

waiting period against a federal constitutional challenge. 505 U.S. at 887. The

plurality explained that the State may “further its legitimate goal of protecting

the life of the unborn by enacting legislation aimed at ensuring a decision that

is mature and informed, even when in so doing the State expresses a preference

for childbirth over abortion.” Id. at 883.

PPH II pointed out that there does exist a published, peer-reviewed study

on waiting periods. See Sarah C.M. Roberts et al., Utah’s 72-Hour Waiting Period

for Abortion: Experiences Among a Clinic-Based Sample of Women,

48 Perspectives on Sexual & Reprod. Health 179 (2016). According to that study,

after undergoing the 72-hour waiting period mandated by Utah law, “Eight

percent of women [in the sample] reported changing their minds.” Id. at 185. The

PPH II majority and dissent disagreed on the significance of the eight percent

number. Compare PPH II, 915 N.W.2d at 241–42, with id. at 255–56 (Mansfield,

J., dissenting). In any event, Iowa law has waiting periods for other important

decisions that implicate fundamental rights, including marriage, adoption, and 14

divorce. See Iowa Code § 595.4 (three-day waiting period for marriage); id.

§ 598.19 (90-day waiting period for divorce); id. § 600A.4(2)(g) (72-hour waiting

period after birth for adoption).

C. District Court Proceeding and Record. On June 23, 2020, before

HF 594 was actually signed into law, Planned Parenthood of the Heartland and

its medical director, Dr. Jill Meadows, filed a petition in Johnson County District

Court challenging the 24-hour waiting period. They named as defendants the

Governor and the Iowa Board of Medicine.4 The petition sought declaratory

judgment and injunctive relief based on four alleged violations of the Iowa

Constitution: (1) the single-subject clause in article III, section 29; (2) the due

process clause in article I, section 9; (3) the rights of equal protection set forth

in article I, sections 1 and 6; and (4) the inalienable rights clause in article I,

section 1. The petition also maintained that the State was “precluded and

collaterally estopped from re-litigating” the issues decided in PPH II.

Planned Parenthood filed an emergency motion for temporary injunctive

relief on the same day, accompanied by materials from the PPH II record and

supporting affidavits from physicians, a psychologist, a sociologist, a lobbyist,

and an Iowa legislator. The physician affidavits largely reiterated points that had

been made in the earlier PPH II litigation. A central concern is that the waiting

period requires a woman who wishes to have an abortion to make two separate

trips and results in additional travel time, travel expense, time away from work,

4We will refer to the plaintiffs collectively as “Planned Parenthood” and to the defendants

collectively as “the State.” 15

and childcare expenses. It also causes scheduling difficulties and creates health

risks as the timing of the abortion itself is pushed back. In some instances, a

woman would be unable to go through the safer and less invasive medication

abortion, which is available only through the eleventh week.

The physician affidavits also pointed out that during the COVID-19

pandemic, waiting periods necessitating a second in-person visit would lead to

increased medical risk for patients and healthcare workers.

A telephonic hearing on this motion took place on June 29. One day later,

before the law went into effect, the district court granted the motion and

temporarily enjoined the State from enforcing the 24-hour waiting period in Iowa

Code section 146A.1(1).

On January 22, 2021, Planned Parenthood moved for summary judgment

based on the single-subject rule and issue preclusion. Planned Parenthood urged

that HF 594 constituted unconstitutional “log rolling” and that the State was

precluded from relitigating issues it had lost on in 2018 when this court decided

PPH II. The State resisted and cross-moved for partial summary judgment on the

single-subject rule.

On June 21, the district court entered an order that granted summary

judgment to Planned Parenthood and declared the 24-hour waiting period to be

unconstitutional based on both grounds asserted by Planned Parenthood.

First, the court “wholeheartedly” agreed with Planned Parenthood that a

single-subject violation had occurred. It noted that HF 594 was “passed under

highly unusual circumstances” because there was little debate on “a polarizing 16

and highly controversial topic” when “most Iowans would have been asleep.” The

court found “the Amendment was clearly logrolled with other legislation, since

[it] was attached to a non-controversial provision regarding withdrawal of

life-sustaining procedures from a minor child.” The court concluded that this

was an “extreme case” in which “the Amendment [wa]s indisputably not germane

to the underlying bill.”

Second, the district court also granted summary judgment on the

alternative ground that issue preclusion from the 2018 PPH II decision barred

the State from defending an abortion waiting period, even one shorter in duration

than the 72 hours involved in PPH II.

Reviewing our decision in PPH II, the district court indicated that our court

had found mandatory delay laws do not benefit women seeking an abortion and

do not change their minds. The district court further observed that PPH II found

significant burdens associated with a waiting period that required two trips to

an abortion clinic. The court reasoned that these factual findings applied equally

to a 24-hour waiting period. Therefore, the district court concluded that PPH II

was dispositive of the result in this case:

The Court finds, upon review of the entire PPH[II] decision, that these same parties had a full and fair opportunity to litigate the issue of mandatory delay laws and patient decision-making in the first action. The Court finds that issue preclusion bars Respondents from re-litigating certain matters within PPH[II], which includes the issue of whether “mandatory waiting periods” (whether it is 72-hour, 24- hour, or any time frame contrary to “PPH’s current same-day regime”) between women’s informational and procedural abortion appointments “will impact patient decision-making,” as these identical issues were raised and litigated in, and were material and 17

relevant to, the determination of issues by the Iowa Supreme Court that were essential to its ultimate opinion.

The State filed a timely appeal, which we retained. On appeal, the State

challenges the district court’s determination that HF 594 violated the

single-subject rule set forth in article III, section 29 as well as the court’s

application of issue preclusion based on PPH II to a shorter 24-hour waiting

period. The State also asserts that PPH II was wrongly decided and should be

overruled.

III. Standard of Review.

We review summary judgment rulings for correction of errors at law.

Bandstra v. Covenant Reformed Church, 913 N.W.2d 19, 36 (Iowa 2018).

“Whether the elements of issue preclusion are satisfied is a question of law.” Id.

(quoting Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016)).

Constitutional claims are reviewed de novo. Planned Parenthood of the

Heartland, Inc. v. Reynolds (PPH III), 962 N.W.2d 37, 45 (Iowa 2021). “In reviewing

constitutional challenges to statutes, ‘we must remember that statutes are

cloaked with a presumption of constitutionality. The challenger bears a heavy

burden, because it must prove the unconstitutionality beyond a reasonable

doubt.’ ” Id. at 46 (quoting AFSCME Iowa Council 61 v. State, 928 N.W.2d 21, 31

(Iowa 2019)); see also Godfrey v. State, 752 N.W.2d 413 (Iowa 2008) (“We review

claims based on a violation of our state constitution de novo.”).

“In determining whether the single subject requirement has been complied

with, we construe the enactment liberally in favor of its constitutionality.” State

v. Iowa Dist. Ct., 410 N.W.2d 684, 686 (Iowa 1987). 18

IV. Analysis.

A. Does HF 594 Violate the Single-Subject Rule? Iowa’s single-subject

rule is found in article III, section 29. It states,

Every Act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be expressed in the title.

Iowa Const. art. III, § 29.

Planned Parenthood contends—and the district court found—that HF 594

did not “embrace but one subject, [or] matters properly connected therewith.” Id.

In the district court’s view, it was improper for the general assembly to couple a

mandatory abortion waiting period with a limitation on the removal of life

support because those matters involved different subjects. As we explain herein,

we respectfully disagree.

Simply stated, both provisions of HF 594 related to a single subject as set

forth in the bill’s title—“medical procedures.” In fact, their connection was closer

than that. Not only did both provisions relate to medical procedures, but they

also related to governmental regulation of medical procedures in the interest of

promoting human life.

Consider what Planned Parenthood says in its brief: “These

provisions are at odds in both substance and purpose: the first protects private

medical decision-making from state interference, while the second explicitly

enacts such state interference in individual medical decision-making.” We

recognize that Planned Parenthood disagrees with the policies behind the second 19

provision. But as their quoted summary of HF 594 shows, both provisions related

to state regulation of individual medical decision-making. And both provisions

were designed to preserve human life.5

In addition, considerations of history, precedent, and policy bolster our

conclusion that the general assembly’s enactment of HF 594 did not violate the

1. Historical background on the adoption of article III, section 29. Iowa’s

original constitution had a different version of the single-subject rule, which was

actually a “single object” rule. See Iowa Const. art. III, § 26 (1846). It stated,

“Every law shall embrace but one object, which shall be expressed in the title.”

Id. In State ex rel. Weir v. County Judge of Davis County, our court took a

deferential approach to interpreting this constitutional requirement. 2 Iowa

(Clarke) 280, 284 (1855). That case involved an omnibus road bill that

established, vacated, or relocated dozens of different roads across the state. Id.

at 281–82. We needed to determine whether this act was directed at “one object”

(as required by the former constitution) or multiple objects because it dealt with

many different roads. Id.

We decided that the word “object” did not refer to particulars like specific

roads, but rather referred to the goal of the legislation in a more general sense.

Id. at 283 (“The unity of object is to be looked for in the ultimate end, and not in

the detail or steps leading to the end.”). Ultimately, we held that the act in

5The location of these provisions in the Iowa Code suggests a connection as well. They were codified within six pages of each other in Title IV, Subtitle 2, governing “Health-Related Activities.” See Iowa Code chs. 144G–146A (Vol. II, pgs. 1119–25). 20

question did not violate the constitution’s single-object rule, stating, “There is,

undoubtedly, great objection to uniting so many particulars in one act, but so

long as they are of the same nature, and come legitimately under one general

denomination or object, we cannot say that the act is unconstitutional.” Id. at

284.6

Santo v. State was decided on the same day in 1855 as Weir, and it reached

the same result in another context. 2 Iowa (Clarke) 165, 188 (1855). Santo

involved “An Act for the Suppression of Intemperance” that sought to curb

drunkenness in various ways, including, for example, “the prohibition of the

manufacture and sale of intoxicating drinks” and “declaring buildings a public

nuisance.” Id. at 174. The court found this to be constitutional, stating, “The

whole act has reference to but one subject, viz: ‘The prohibition of the traffic in

liquors.’ . . . All the provisions of the law, from section one to section eighteen,

refer to the same object.” Id. at 188.

6Notably, even though the 1855 court was less than ten years removed from the original

constitution’s ratification, it still looked to actions taken by the general assembly shortly after ratification as clues to the constitution’s meaning. The court observed that the legislature had established multiple roads in a single act less than a year after the constitution was adopted. It noted, This is exactly like the one in the case at bar. Some weight is due to the fact that in this first General Assembly, were many men who were members of the convention which formed the constitution, and inserted this new provision. This consideration is not conclusive, by any means, it is true; but it assists us in arriving at the intent of the constitution. Weir, 2 Iowa at 284. This suggests that we—165 years removed from the adoption of our constitution—can look to contemporaneous acts of the legislature and the judiciary to discern what the constitution was understood to mean at the time it was adopted. See, e.g., King v. State, 818 N.W.2d 1, 14 (Iowa 2012) (pointing out that an 1859 case was a valuable interpretive tool because it was decided “at a time when the 1857 constitution was quite fresh in people’s minds”). 21

As it turned out, a constitutional convention would be held two years later,

and these two cases would play a role in the single-subject rule debate. Rather

than retain the language from the 1846 constitution, the delegates proposed new

language that changed the phrase “embrace but one object” to “embrace but one

subject, and matters properly connected therewith.” See 1 The Debates of the

Constitutional Convention of the State of Iowa 530 (W. Blair Lord rep., 1857)

[hereinafter The Debates], http://publications.iowa.gov/7313/. A delegate from

Davis County, Mr. Palmer, moved to strike the word “subject” and replace it with

“object,” which he understood to be the narrower word. Id. He explained, “It

appears to me that if we can embrace so many different provisions under the

word ‘subject,’ it ought to be stricken out, and some other word substituted for

it, which would confine the action of the legislature within some more limited

range.” Id.

A delegate from Johnson County, Mr. Clark, disagreed. Id. at 531. While

arguing against Mr. Palmer’s motion, he recounted the supreme court’s opinion

on the omnibus road bill at issue in Weir:

[A] decision was rendered by two judges, sustaining the law as constitutional; that though it embraced a variety of objects, it embraced but one subject. From that decision the chief justice dissented. That decision now stands, though there are two judges in favor of it, and two against it. I think the construction put upon the act by the majority of the court was a correct one.

Id. Mr. Clark favored the court’s broader construction, and he favored using the

word “subject” in the new constitution because he understood it to allow more

legislative flexibility. Id. He explained, “[T]he word ‘subject’ is a broader word,

and more extensive in its application, than the word ‘object.’ ” Id. 22

After this exchange, the convention rejected Mr. Palmer’s motion. Id. Both

sides of this debate at the convention understood the word “subject” to be

broader—and that word won the day. See id. at 530–31.7

Aside from the debate regarding that specific word choice, other textual

deviations from the earlier constitution weigh in favor of legislative deference.

Most notably, article III, section 29 allows for “matters properly connected” to a

bill’s subject to be included in legislation without resulting in a constitutional

violation. Iowa Const. art. III, § 29. The text does not require a single subject in

the strictest sense; instead, it allows legislation to include connected matters,

even if not the same subject per se. Miller v. Bair, 444 N.W.2d 487, 489 (Iowa

1989) (“[I]n order for a violation of the single-subject requirement to exist, the

challenged legislation must embrace ‘two or more dissimilar and discordant

subjects that by no fair intendment can be considered as having any legitimate

connection with or relation to each other.’ ” (quoting Long v. Bd. of Supervisors,

142 N.W.2d 378, 381 (Iowa 1966))); Christie v. Life Indem. & Inv. Co., 48 N.W. 94,

96 (Iowa 1891) (“It is not true that an act may not embrace more than one

subject. The act shall embrace but one subject, and matters properly connected

therewith.” (citation omitted)).

Given the text of article III, section 29 and its history, a flexible application

of the single-subject rule is appropriate. See Iowa-Neb. Light & Power Co. v. City

7In Weir, the court stated in that there is “reason to believe” that the word “subject” is narrower than the word “object.” 2 Iowa at 285. But at the constitutional convention, Mr. Palmer stated that he understood “subject” to be broader than “object.” And Mr. Clark agreed that “subject” was broader. We do not wade into this debate. We merely note that the delegates ultimately chose what they intended to be the broader word. 23

of Villisca, 261 N.W. 423, 425 (Iowa 1935) (describing the “obvious . . . intention

on the part of the framers . . . to give [the single-subject rule] a liberal

construction” and collecting early cases that support that conclusion). While the

rule is not entirely without teeth, the legislature should be afforded considerable

deference. See Long, 142 N.W.2d at 381 (“All that is necessary is that the act

should embrace some one general subject, and by that is meant, merely, that all

matters treated therein should fall under some one general idea and be so

connected with or related to each other, either logically or in popular

understanding, as to be part of or germane to one general subject.”).

2. Caselaw on article III, section 29. Our caselaw has generally adhered to

this flexible approach. In State v. Mabry, we summarized our single-subject

precedent as follows:

There are longstanding rules for determining whether an act meets the constitutional mandate of article III, section 29. First and foremost, we construe “the [act] liberally in favor of its constitutionality.” [Iowa Dist. Ct., 410 N.W.2d at 686]. Before we can say the act is invalid we must find that the act “encompass[es] two or more dissimilar or discordant subjects that have no reasonable connection or relation to each other.” Id.; see also Western Int’l [v. Kirkpatrick], 396 N.W.2d [359,] 364 [(Iowa 1986) (en banc)]. Even if the “matters grouped as a single subject might more reasonably be classified as separate subjects, no violation occurs if these matters are nonetheless relevant to some single more broadly stated subject.” Id.

....

Under this test “[l]egislation will not be held unconstitutional unless clearly, plainly and palpably so.” [Long, 142 N.W.2d at 381]. And “[i]f the constitutionality of an act is merely doubtful or fairly debatable, the courts will not interfere.” Id. So “[i]t is only in extreme cases, where unconstitutionality appears beyond a reasonable doubt, that this court can or should act. . . .” [Id. at 381–82]. 24

460 N.W.2d 472, 474 (Iowa 1990) (first, third, seventh, ninth, and tenth

alterations and second omission in original) (citation omitted).

This court has consistently rejected single-subject challenges to legislation

when there is a common denominator consisting of an overall subject matter.

See, e.g., State v. Soc. Hygiene, Inc., 156 N.W.2d 288, 289, 292 (Iowa 1968)

(finding that a bill with the stated purpose of “suppress[ing] the vending of

articles of indecent and immoral use” that had a section criminalizing the sale of

contraceptives in vending machines did not violate the single-subject rule

because “the listing by the legislature of what it considers indecent and immoral

is within the limitations of the Constitution”); Rains v. First Nat’l Bank of

Fairfield, 206 N.W. 821, 822 (Iowa 1926) (holding that provisions governing

appellate procedure in the supreme court and other provisions setting

qualifications to be admitted to practice law in Iowa were both “clearly [] matter[s]

connected with the subject of procedure in the Supreme Court”).

And broad subject matters are acceptable. See, e.g., Utilicorp United Inc. v.

Iowa Utils. Bd., 570 N.W.2d 451, 454–54 (Iowa 1997) (en banc) (finding no

violation because “[t]he act encompasse[d] one general topic—public utilities—

and amend[ed] nothing other than various provisions in the public utility chapter

of the Code”); Iowa Dist. Ct., 410 N.W.2d at 685, 687 (determining that a

provision removing magistrates’ jurisdiction over first offense operating while

intoxicated did not violate the single-subject rule even though the rest of the bill

addressed the transportation of alcohol, the Sunday sale of alcohol, and the topic

of minors and alcohol because all provisions were “rationally related to the 25

regulation of alcohol and its consumption or possession”); Webster Realty Co. v.

City of Fort Dodge, 174 N.W.2d 413, 418 (Iowa 1970) (finding that “planning,

achieving, and financing urban renewal” was one subject); Frost v. State, 172

N.W.2d 575, 580 (Iowa 1969) (finding that the “acquisition, purchase,

construction, and financing of interstate bridges” was one subject); Long, 142

N.W.2d at 380 (finding that a courthouse hour provision did not violate the

single-subject rule when it was added to a bill “relating to the compensation of

county officers, deputies and clerks”).

In fact, our cases have found a single-subject violation on only three

occasions. As the following discussion demonstrates, all three differ from the

present case in significant ways.8

In Western International Insurance v. Kirkpatrick, the general assembly

passed a law entitled, “An act relating to code corrections which adjust and

correct earlier omissions and inaccuracies, remove inconsistencies, and reflect

or alter current practices, and providing penalties.” 396 N.W.2d at 361. The

primary goal of this legislation was technical: it was designed to make sixty-one

8Over the years, our court has seen claims based on article III, section 29 raised more

than ninety times. See State v. Nickelson, 169 N.W.2d 832, 833–34 (Iowa 1969); William J. Yost, Note, Before a Bill Becomes a Law—Constitutional Form, 8 Drake L. Rev. 66, 67 (1958) [hereinafter Yost]. Among those cases, only thirteen statutes have been found to be invalid. See State v. Taylor, 557 N.W.2d 523, 526–27 (Iowa 1996); Giles v. State, 511 N.W.2d 622, 625 (Iowa 1994); W. Int’l Ins. v. Kirkpatrick, 396 N.W.2d 359, 365–66 (Iowa 1986) (en banc); Nickelson, 169 N.W.2d 832, 837; Nat’l Benefit Acc. Ass’n v. Murphy, 269 N.W. 15, 19 (Iowa 1936); Smith v. Thompson, 258 N.W. 190, 201 (Iowa 1934), overruled on other grounds by Carlton v. Grimes, 23 N.W.2d 883, 903–04 (Iowa 1946); Chi., R.I. & P. Ry. v. Streepy, 224 N.W. 41, 44 (Iowa 1929); In re Breen, 222 N.W. 426, 428 (Iowa 1928); State v. Manhattan Oil Co., 203 N.W. 301, 303 (Iowa 1925); Des Moines Nat. Bank v. Fairweather, 181 N.W. 459, 462 (Iowa 1921); State v. Bristow, 109 N.W. 199, 200 (Iowa 1906); Rex Lumber Co. v. Reed, 77 N.W. 572, 574 (Iowa 1898); Williamson v. City of Keokuk, 44 Iowa 88, 92 (1876). All thirteen of those statutes had a faulty title; only three statutes were deemed to violate the single-subject clause as well. See Taylor, 557 N.W.2d at 526; Giles, 511 N.W.2d at 625; W. Int’l Ins., 396 N.W.2d at 365. 26

“code corrections” to various parts of the Iowa Code that were “conflicting,

redundant or ambiguous.” Id. at 364. But the act also included substantive

amendments to the workers’ compensation statutes that permitted direct

appeals from administrative decisions to this court. Id. at 361.

We found the substantive parts of the law to be constitutionally deficient

on several grounds. First, they impermissibly tried to confer original jurisdiction

on this court in violation of article V, section 4. Id. at 363–64. Also, the title of

the act, which purported to “reflect or alter current practices,” was insufficient

to give notice of the changes to the workers’ compensation laws, violating the

article III, section 29 requirement that an act’s subject be expressed in its title.

Id. at 361, 365. Finally, we stated that the act violated the single-subject rule “by

providing for substantive changes in a code corrections bill.” Id. at 365.

Eight years later, in Giles v. State, we again dealt with a modification of

appellate jurisdiction that had been included in a larger code-corrections bill.

511 N.W.2d 622, 625 (Iowa 1994). We tracked our earlier decision in Western

International and again held that substantive legislation within a

code-corrections bill violates the single-subject rule: “When [a code-correction]

bill incorporates substantive changes, however, the portions that violate article

III, section 29 must be stricken.” Id. We found that the legislation had violated

the title requirement as well. Id. (“Incorporating such a change in a Code

correction bill violates the single subject and title requirement of the Iowa

Constitution.”). 27

Notably, both Western International and Giles involved technical

corrections affecting many disparate areas of the Iowa Code. That in itself wasn’t

a problem. We indicated that the technical nature of the changes could be viewed

in itself as the single subject of the legislation. See Western International, 396

N.W.2d at 365; Giles, 511 N.W.2d at 625. However, once substantive changes

were woven into the same legislation, there ceased to be only one subject. See

Western International, 396 N.W.2d at 365; Giles, 511 N.W.2d at 625. Our case

does not involve a lengthy, wide-ranging code-corrections bill. Neither Western

International nor Giles bears lessons for the present case.

State v. Taylor, 557 N.W.2d 523 (Iowa 1996), marked the third and only

other time this court has found a violation of the single-subject rule. Taylor

involved an adult defendant who was convicted of trafficking in stolen weapons.

Id. at 524. That crime had been enacted as part of a much larger juvenile justice

bill, and the defendant argued the legislation as a whole violated article III,

section 29. Id. at 526–27. “The bill contain[ed] seventy-four sections embracing

a variety of initiatives, all but six of which expressly relate[d] to juveniles.” Id. at

526. We described the primary contents of the bill as follows:

The legislation calls for training gang-affected youth in racial and cultural awareness; prohibits supplying or distributing alcohol, tobacco, and drugs to juveniles; sets up procedures for enforcing juvenile offenses; establishes community programs to support at- risk juveniles through intervention, prevention, and education; combats child abuse and sexually predatory acts; creates weapon- free school zones, prohibits selling guns and ammunition to minors, and provides punishment for juveniles using firearms; appropriates money to fund juvenile programs and services; and calls for a study of juvenile delinquency, including patterns of recidivism and rehabilitation. 28

Id. at 526 (citations omitted). The part of the act that criminalized trafficking in

stolen weapons made no reference to juvenile justice. Id.

The State argued “that any weapons law could have an impact on

juveniles.” Id. But we rejected this argument because “[s]uch reasoning would

bring within its orbit virtually any new crime whether germane to the subject of

juvenile justice or not.” Id. Also, as in the other cases where we have found an

article III, section 29 violation, the title in Taylor was deficient. Id. at 527. It failed

to convey that the bill enacted a new criminal offense. Id. The title suggested that

the legislation would only affect juvenile delinquency. See id.

Taylor is the high-water mark for challenges to legislation under the single-

subject rule. Even so, it is distinguishable. As in Western International and Giles,

we were dealing in Taylor with a lengthy piece of legislation that contained a

stray, out-of-place item: a large juvenile justice bill dwarfed the challenged adult

criminal law that went unmentioned in the title. See Taylor, 557 N.W.2d at

526–27. And the State’s suggested point of commonality between the criminal

offense and juvenile justice could conceivably have applied to every criminal law.

Id. at 526. Here, in contrast, the legislation made two conceptually related

substantive changes to laws governing medical decision-making that were both

mentioned in the bill’s title. Neither of the provisions at issue is an alien wayfarer

in some larger bill.

To summarize, both sections of HF 594 pertained to the identified subject

of “medical procedures,” specifically government regulation of medical

procedures in the interest of preserving human life. That differs from the 29

situation in Western International, Giles, and Taylor and does not violate the

3. Circumstances of HF 594’s passage. We also believe that the

circumstances of HF 594’s passage—although not directly relevant to whether

the legislation violated the single-subject rule—support the State’s position that

no constitutional violation occurred.

Contrary to the views of the district court, HF 594’s passage did not occur

through logrolling. We have explained,

Logrolling occurs when a provision unrelated to the core of a bill and not itself capable of obtaining majority support is tied to a popular bill having majority support. Logrolling also occurs when several matters, none of which individually has majority support, are joined in one bill and passage procured by combining the minority in favor of each into a majority willing to enact them all.

Iowa Dist. Ct., 410 N.W.2d at 686.

That is not what happened here. The 24-hour waiting period was

separately approved by a house majority. HF 594 in its final form was then

approved by majorities in both the house and the senate, where the debate

focused exclusively on the merits of the 24-hour waiting period. See Senate Video

at 04:23:50–05:41:23 AM; House Video at 10:24:00–10:59:35 PM. No legislator

who voted for HF 594 contends they would have voted against the 24-hour

waiting period as a standalone provision. No legislator contends they did not

understand the contents of HF 594 or were misled as to what they were voting

on.

In Mabry, we explained that article III, section 29 serves three purposes: 30

First, it prevents logrolling. Logrolling occurs when unfavorable legislation rides in with more favorable legislation. Second, it facilitates the legislative process by preventing surprise when legislators are not informed. Finally, it keeps the citizens of the state fairly informed of the subjects the legislature is considering.

460 N.W.2d at 473 (citations omitted).9 The single-subject requirement is

primarily aimed at the first of these purposes: avoiding logrolling. Iowa Dist. Ct.,

410 N.W.2d at 686 (“The single subject requirement is primarily intended to

prevent ‘logrolling.’ ” (quoting Western Int’l, 396 N.W.2d at 364)); see also Long,

142 N.W.2d at 382 (“The primary and universally-recognized purpose of the one-

subject rule is to prevent ‘log-rolling’ in the enactment of laws . . . .”). The other

two purposes, avoiding surprise to legislators and avoiding surprise to citizens,

are primarily achieved through the title requirement. Iowa Dist. Ct., 410 N.W.2d

at 686 (“The title requirement of article III, section 29, serves a separate purpose.

By mandating the act’s subject be expressed in its title, legislators and citizens

alike are given notice of its contents, reducing the possibility of legislation by

surprise or fraud.”); Long, 142 N.W.2d at 383 (“The primary purpose of the title

requirement is to prevent surprise and fraud upon the people and the

9Mabry said that “single-subject rule” served these three purposes. 460 N.W.2d at 473. We note, however, that Mabry referred to the single-subject requirement and the title requirement together as the “single-subject rule.” See id. (“Most state constitutions require that ‘no [legislative] act shall contain more than one subject, which shall be expressed in its title. . . .’ This constitutional mandate is known as the ‘single-subject’ rule.” (omission in original) (quoting 1A Norman J. Singer, Sutherland Statutory Construction § 22.08, at 187 (C. Sands 4th ed. 1985))). Also, in discussing the three purposes, Mabry cited to and relied on a Drake Law Review note that was referring to article III, section 29 as a whole. See id. (citing Yost, 8 Drake L. Rev. at 67). To avoid confusion in this opinion, we refer to the single-subject requirement and title requirement separately. 31

legislature.”).10 The single-subject rule and the title requirement are related, but

they “have independent operation, have an independent historical base, and a

separate purpose.” Long, 142 N.W.2d at 383.

Ultimately, we should decide whether a violation of article III, section 29

occurred based on the text of HF 594, not the process of its enactment. But the

process does not suggest that the purposes of the single-subject rule were

thwarted. Our constitution does not prohibit the legislature from burning the

midnight oil or passing significant legislation with relatively little public debate,

as they often do at the end of a legislative session.

Article III, section 29 is not merely aspirational. We do not share the views

of one amicus that the single-subject clause of article III, section 29 is totally

nonjusticiable. But just as we would bristle at the legislature telling us how we

should conduct our business internally, so should we be hesitant to pass

judgment on how the legislature conducts theirs.

Finally, we turn to Planned Parenthood’s contention that the acting house

speaker’s ruling on germaneness means that HF 594 as approved violated the

single-subject rule. We disagree. The issue of whether

H–8314 was germane to the bill it was amending is different from the issue of

whether the final bill, once enacted, embraced a single, broader subject. See

88th G.A., House Rules (House Resolution 11) r. 38 (2019) (“An amendment must

10“The single subject limitation of article III, section 29, also facilitates an orderly legislative process. As we wrote in Long: ‘By limiting each bill to a single subject, the issues presented by each bill can be better grasped and more intelligently discussed by [] legislators.’ ” Iowa Dist. Ct., 410 N.W.2d at 686 (quoting Long, 142 N.W.2d at 382) (citation omitted). 32

be germane to the subject matter of the bill it seeks to amend. An amendment to

an amendment must be germane to both the amendment and the bill it seeks to

amend.”). The frame of reference matters. Suppose you have pending legislation

authorizing the building of a road in eastern Iowa. An amendment proposing to

close a road in western Iowa may not be germane to the subject matter of that

existing piece of legislation. But the combined legislation can be fairly said to

deal with the single subject of “roads.” Cf. Weir, 2 Iowa at 284. It logically follows,

therefore, why the house can vote to suspend its own rules (and did so in this

case), but the Iowa Constitution cannot be suspended. The rule requirements

are more stringent than those of our constitution.

B. Does Issue Preclusion Bar the State from Defending a 24-Hour

Waiting Period on the Merits? Planned Parenthood argues that the doctrine of

issue preclusion forecloses the State from litigating the merits of the 24-hour

waiting period that the legislature enacted in 2020 as part of HF 594.

Specifically, Planned Parenthood contends it must be accepted for purposes of

this litigation that “mandatory delay laws do not change people’s minds” and

that multiple trips to an abortion provider “impose[s] a range of medical,

financial, emotional and social burdens.”

As we have discussed, in 2018, our court struck down as unconstitutional

a longer 72-hour waiting period. There, for the first time, we identified a

fundamental right to an abortion as part of the Iowa Constitution. PPH II, 915

N.W.2d at 234–37 (majority opinion). Having found that such a right existed, we

concluded that abortion-related legislation must be evaluated under the strict 33

scrutiny standard rather than the Casey undue burden standard. Id. at 240–41.

Then, utilizing that strict scrutiny framework, we struck down the 72-hour

waiting period for two independent reasons. First, it would not “result in a

measurable number of women choosing to continue a pregnancy they otherwise

would have terminated without the mandatory delay.” Id. at 243. Second, “[e]ven

if the Act did confer some benefit to the State’s identified interest, it sweeps with

an impermissibly broad brush.” Id. at 243. We reasoned that it “takes no care to

target patients who are uncertain when they present for their procedures but,

instead, imposes blanket hardships upon all women.” Id.

In short, PPH II decided one pure question of law, namely, that there is a

fundamental right to abortion in the Iowa Constitution. Working from that legal

determination, PPH II went on to find the 72-hour waiting period

unconstitutional on two alternative (and arguably factual) grounds.

We have said that a party invoking issue preclusion must establish four

elements:

(1) the issue in the present case must be identical, (2) the issue must have been raised and litigated in the prior action, (3) the issue must have been material and relevant to the disposition of the prior case, and (4) the determination of the issue in the prior action must have been essential to the resulting judgment.

Emps. Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012) (quoting

Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 104 (Iowa 2011)); see also Winger,

881 N.W.2d at 451. Also, when issue preclusion is invoked offensively, as in the

present case, two additional considerations are present:

(1) whether the opposing party in the earlier action was afforded a full and fair opportunity to litigate the issues . . ., and (2) whether 34

any other circumstances are present that would justify granting the party resisting issue preclusion occasion to relitigate the issues.

Van Haaften, 815 N.W.2d at 22 (quoting Soults Farms, 797 N.W.2d at 104).

Our law of issue preclusion has drawn on the work of the Restatement

(Second) of Judgments. See, e.g., Barker v. Iowa Dep’t of Pub. Safety, 922 N.W.2d

581, 588 (Iowa 2019); Winger, 881 N.W.2d at 451; In re Pardee, 872 N.W.2d 384,

391 (Iowa 2015); Van Haaften, 815 N.W.2d at 23.

We do not believe issue preclusion applies here. To begin, our decision in

PPH II depended on our resolution of a single legal issue: whether there is a

fundamental right to an abortion in the Iowa Constitution. We do not believe a

court of last resort can be hemmed in by the doctrine of issue preclusion from

deciding what our constitution means. This would have meant, for example, that

the United States Supreme Court in the 1930s would have been precluded from

altering its prior approach to economic regulation and upholding the legislation

of Franklin D. Roosevelt’s New Deal.

The Restatement (Second) of Judgments section 28(2) explains that

relitigation of an issue is not precluded where “[t]he issue is one of law and . . .

a new determination is warranted in order to take account of an intervening

change in the applicable legal context or otherwise to avoid inequitable

administration of the laws.” Restatement (Second) of Judgments § 28(2), at 273

(Am. L. Inst. 1982) [hereinafter Restatement (Second) of Judgments]. Section 29,

which concerns issue preclusion in subsequent litigation with others, goes

further. Id. § 29, at 291–92. In addition to the section 28 circumstances, it lists

other reasons for not applying issue preclusion. Id. These include when “[t]he 35

issue is one of law and treating it as conclusively determined would

inappropriately foreclose opportunity for obtaining reconsideration of the legal

rule upon which it was based.” Id. § 29(7), at 292. Comment i to section 29

elaborates on this ground:

When the issue involved is one of law, stability of decision can be regulated by the rule of issue preclusion or by the more flexible rule of stare decisis. See § 28, Comment b. If the rule of issue preclusion is applied, the party against whom it is applied is foreclosed from advancing the contention that stare decisis should not bind the court in determining the issue. Correlatively, the court is foreclosed from an opportunity to reconsider the applicable rule, and thus to perform its function of developing the law. . . . [I]t is also pertinent that the party against whom the rule of preclusion is to be applied is a government agency responsible for continuing administration of a body of law applicable to many similarly situated persons. When any of these factors is present, the rule of preclusion should ordinarily be superseded by the less limiting principle of stare decisis.

Id. § 29 cmt. i, at 297.

True, Planned Parenthood was the plaintiff in 2018 and is the plaintiff

today. In that sense, the parties are technically identical in both cases. But this

overlooks the fact that Planned Parenthood is not asserting its own

constitutional rights. See PPH III, 962 N.W.2d at 56–57. The rights at issue are

those of individual women who are not actually before this court as parties and

who would not be bound under claim or issue preclusion principles by the

decision in either case. So, in that respect, there is no mutuality. See United

States v. Mendoza, 464 U.S. 154, 162–64 (1984) (holding that nonmutual

collateral estoppel does not apply against the federal government). Both the 36

section 28(2)(b) and the section 29(7) exceptions to issue preclusion in the

restatement come into play here.11

There is also authority that issue preclusion does not apply to pure

questions of law. As a leading treatise has put it, “It is reasonably clear that

preclusion does not extend to principles of law formulated in abstract terms that

could apply to completely separate fact settings.” 18 Charles Alan Wright, Arthur

R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4425, at 696 (2d

ed. 2016).

In 2018, we decided such an abstract question of law: we held for the first

time that there is a fundamental right to an abortion under the Iowa

Constitution. PPH II, 915 N.W.2d at 237. The rest of our opinion in PPH II flowed

directly from that single, broad legal determination: strict scrutiny, compelling

state interest, and narrow tailoring automatically came next. Id. at 238–41. We

found that the 72-hour period was unconstitutional because it would not have

a “measurable” effect on reducing abortions, and thus would not promote human

life. Id. at 242. We also found that the 72-hour waiting period was

unconstitutional because that waiting period was not narrowly tailored but

instead applied to all women in Iowa who were interested in terminating a

pregnancy, even those whose decisions would not be affected by a 72-hour

waiting period. Id. at 243.

11Also,Planned Parenthood “performs 95% of the abortions in the State of Iowa.” PPH III, 962 N.W.2d at 50. If issue preclusion applied as between Planned Parenthood and the State on the broad legal question of whether there is a fundamental right to an abortion in the Iowa Constitution, that could freeze constitutional interpretation on abortion rights based on the happenstance that one organization has a near-monopoly on providing abortions in Iowa. 37

Having found that issue preclusion does not bar us from reconsidering the

basic legal question of the constitutional status of abortion, this removes any

ground for affording issue preclusion to the rest of our 2018 opinion. Any

fact-finding we did in 2018 was done under a legal standard—strict scrutiny—

that put all the burden of justification on the State. See PPH III, 962 N.W.2d at

47–48 (“Under strict scrutiny, a law is presumptively invalid, and the burden is

on the government to show that the law is ‘narrowly tailored to serve a compelling

state interest.’ ”); Mitchell County v. Zimmerman, 810 N.W.2d 1, 16 (Iowa 2012)

(noting that under strict scrutiny, the government “has the burden to show that

the ordinance serves a compelling state interest and is the least restrictive means

of attaining that interest”). If that burden of proof were to change, issue

preclusion could not apply. See Restatement (Second) of Judgments § 28(4), at

273 (noting that issue preclusion does not apply when “[t]he party against whom

preclusion is sought had a significantly heavier burden of persuasion with

respect to the issue in the initial action than in the subsequent action; the

burden has shifted to his adversary; or the adversary has a significantly heavier

burden than he had in the first action”).12

12We note that in Planned Parenthood of Middle Tennessee v. Sundquist, the Tennessee Supreme Court held for the first time that there was a fundamental right to terminate a pregnancy under the Tennessee Constitution and struck down Tennessee’s mandatory waiting period. 38 S.W.3d 1, 25 (Tenn. 2000). The court also concluded that Planned Parenthood was not barred by collateral estoppel from relitigating the constitutionality of that waiting period, an issue on which it had previously lost in federal court. Id. at 23 n.12. In the Tennessee Supreme Court’s view, the two cases involved “different issues” because the first case was decided under an undue burden standard rather than a fundamental rights/strict scrutiny standard. Id. Here, the converse is true. If we find that there is no fundamental right to an abortion in the Iowa Constitution, then the constitutionality of a mandatory waiting period becomes a different issue than it was under a fundamental rights/strict scrutiny analysis. 38

Moreover, neither of the two potentially factual determinations we made in

PPH II were “essential” to the judgment. See Van Haaften, 815 N.W.2d at 22;

Restatement (Second) of Judgments § 27, at 250 (stating that the determination

must be “essential to the judgment”). Rather, our court made alternative

determinations. See PPH II, 915 N.W.2d at 242–43. And we made them as a court

of first instance since the lower court had ruled otherwise. See id. at 231. Such

alternative determinations cannot have issue preclusive effect. See Restatement

(Second) of Judgments § 27 cmt. i, at 259 (“If a judgment of a court of first

instance is based on determinations of two issues, either of which standing

independently would be sufficient to support the result, the judgment is not

conclusive with respect to either issue standing alone.”).

Additionally, a 24-hour waiting period is not identical to a 72-hour waiting

period. Common sense would say that a 24-hour waiting period imposes less of

a burden on women seeking an abortion than a 72-hour waiting period, yet also

may be less likely to change minds. In Planned Parenthood of Montana v. State,

the Montana Supreme Court declined to give preclusive effect to a prior decision

invalidating an earlier version of an abortion parental notification law. 342 P.3d

684, 688–89 (Mont. 2015). The new laws had the same basic components—a

required parental notification with a judicial bypass—but contained differences.

Id. That was sufficient to foreclose the use of issue preclusion. Id. at 688 (“The

question before us is only whether the issues in the two cases are identical.”).

In its briefing in PPH II, Planned Parenthood argued that the 72-hour

waiting period involved in that case was “triple the mandatory [24-hour] delay 39

period upheld in Casey, and the evidence at trial confirmed the obvious fact that

a longer required delay is more burdensome.”

In support of its motion for summary judgment on issue preclusion,

Planned Parenthood submitted an affidavit of a physician who said, “[A]lthough

a 24-hour mandatory delay law in theory imposes less automatic delay than a

72-hour mandatory delay law, in practice, it will still cause substantial delay and

other harms.” Planned Parenthood submitted an affidavit from another

physician who said, “A 24-hour mandated delay is no less harmful in practical

terms than a 72-hour requirement.” This strikes us as an unusual approach to

issue preclusion. If the issues are identical, it should not be necessary to submit

affidavits like this at all. And offering an opinion that two different waiting

periods result in the same practical harm does not establish an identity of issues.

In the end, therefore, Planned Parenthood must argue that the doctrine of

issue preclusion freezes the State from ever seeking to overturn the legal

postulate that terminating a pregnancy is a fundamental right under our state

constitution. Our court has never applied issue preclusion in that context.

Planned Parenthood cites to Penn v. Iowa State Board of Regents, 577 N.W.2d

393 (Iowa 1998) (per curiam), and Burns v. Board of Nursing of the State of Iowa,

528 N.W.2d 602 (Iowa 1995), as cases applying issue preclusion in constitutional

litigation. But Penn simply applied issue preclusion to the subordinate question

of when the plaintiff’s constitutional claims accrued for statute of limitations

purposes. 577 N.W.2d at 399–400. And Burns applied issue preclusion when the

plaintiff, within the same case, sought to relitigate constitutional issues it had 40

already litigated and lost before us in an earlier stage of the same case. 528

N.W.2d at 605. Perhaps the issue in Burns was wrongly titled; the constitutional

claims should have been rejected under “law of the case” rather than issue

preclusion. Regardless, Burns bears no resemblance to the present proceeding.

It would be unfathomable to say that issue preclusion prevents the State

from asking us to revisit a broad principle of constitutional law. For example,

earlier this term, three members of this court urged that we should overrule a

recent case and find that the Iowa Constitution does not bar police from

removing trash from trash cans put out for collection. See State v. Kuutila, 965

N.W.2d 484, 487–90 (Iowa 2021) (Waterman, J., dissenting, joined by

Christensen, C.J., and Mansfield, J.). Last term, we overruled a case requiring

law enforcement to obtain a search warrant before conducting a breath test on

a boater whom they have probable cause to believe is intoxicated. State v. Kilby,

961 N.W.2d 374, 383 (Iowa 2021) (overturning State v. Pettijohn, 899 N.W.2d 1

(Iowa 2017)). If Planned Parenthood were right, then constitutional adjudication

in Iowa would be a one-way ratchet. Once we decided that a right existed under

the Iowa Constitution, the State could never ask us to reconsider that right in a

later case.

For all these reasons, we conclude that issue preclusion does not apply in

this case.

C. Should Stare Decisis Prevent Us From Reconsidering PPH II? We

next turn to whether PPH II’s holding that there is a fundamental right to

terminate a pregnancy in the Iowa Constitution should be revisited. The State 41

has asked that we overrule PPH II. Planned Parenthood resists both on stare

decisis and on the ground that PPH II was correctly decided.

Stare decisis—“to stand by things decided”—cautions us against

overturning our past decisions. See State v. Feregrino, 756 N.W.2d 700, 708

(Iowa 2008) (“The doctrine of stare decisis counsels caution before we overturn

prior precedent of this court.”).

But stare decisis is not an “inexorable command.” Bd. of Water Works Trs.

of City of Des Moines v. Sac Cnty. Bd. of Supervisors, 890 N.W.2d 50, 86 (Iowa

2017) (Appel, J., concurring in part and dissenting in part) (“In close cases, the

determination of whether to apply stare decisis is a matter of judgment, not

inexorable command.”). “Within a system of justice, courts cannot blindly follow

the past. Instead, we are obligated to depart from past cases when they were

erroneously decided.” Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 849 (Iowa

2014). “[I]t is our obligation to revisit a prior decision of our court if we conclude

the previous decision is unsound.” Doe v. New London Comm. Sch. Dist., 848

N.W.2d 347, 360 (Iowa 2014) (Wiggins, J., dissenting). “Of course, stare decisis

is a factor to consider. At the same time, we recognize that stare decisis is not

always determinative. Otherwise, the law would be like a fly imprisoned in

volcanic rock.” State v. Short, 851 N.W.2d 474, 500 (Iowa 2014) (citation omitted).

There are several reasons why stare decisis has less force here than it

might in other contexts. First, PPH II was a constitutional decision. “Stare decisis

has limited application in constitutional matters.” Kilby, 961 N.W.2d at 386

(McDonald, J., concurring specially). “Constitutional cases tend to invoke a weak 42

or less strict form of stare decisis, on the theory that only the courts can correct

bad constitutional precedent, absent constitutional amendments. In other

words, courts must be free to correct their own mistakes when no one else can.”

Tyler J. Buller & Kelli A. Huser, Stare Decisis in Iowa, 67 Drake L. Rev. 317, 322

(2019) [hereinafter Buller & Huser] (footnote omitted).

Also, an empirical study indicates that our court has overruled precedents

at a rate of approximately four per year between 1990 and 2018, and that

between 2011 and 2018 our court “overruled comparatively more constitutional

decisions than [in] any other period in the history of the Iowa Supreme Court

since 1857.” Id. at 345, 356. As the authors put it, “This suggests comparatively

weak constitutional stare decisis by [the court during the 2011–18 period], at

least compared to its predecessors.” Id. at 356. So, our court has been more

willing to revisit constitutional precedents in recent years.

Second, PPH II was decided only four years ago. It is certainly not

“long-standing.” Cf. Venckus v. City of Iowa City, 930 N.W.2d 792, 802 (Iowa

2019) (“Venckus offers no compelling justification to overrule our long-standing

precedents . . . .”). It is not “well-established” or “settled.” Cf. Schmidt v. State,

909 N.W.2d 778, 818 (Iowa 2018) (Mansfield, J., dissenting) (“I would not

abandon our settled precedent, unanimously reaffirmed eight years ago . . . .”).

Precedents generally grow deeper roots as they age. “A court that overturns much

older cases arguably undermines the predictability and stability of the law more

than a court that overturns primarily newer cases because litigants and citizens 43

have come to rely on the long-standing decisions.” Buller & Huser, 67 Drake L.

Rev. at 346.

Stare decisis should be less of an obstacle when the decision to be

overruled is recent and itself overruled other precedent. See State v. Williams,

895 N.W.2d 856, 867–69 (Iowa 2017) (Mansfield, J., concurring specially)

(analyzing how the decision being overruled broke from precedent).

Third, PPH II was overtly based on the notion of a “living” constitution. See

PPH II, 915 N.W.2d at 236. We “consider[ed] current prevailing standards that

draw their ‘meaning from the evolving standards . . . that mark the progress of

a maturing society.’ ” Id. (omission in original) (quoting Griffin v. Pate, 884

N.W.2d 182, 186 (Iowa 2016)). To the extent PPH II viewed constitutional

interpretation as an evolutionary process rather than a search for fixed meaning,

it is hard now to argue that the evolutionary process had to end as soon as PPH II

was decided. Does the Iowa Constitution get to “live” until 2018, at which point

it must stop living?

A group of distinguished law professors from the University of Iowa and

Drake filed an amicus brief in this case on the subject of stare decisis. We respect

their views, but we disagree with them.

The professors argue that a precedent should only be overruled when

“stare decisis has lapsed”—that is, a sufficient time period has passed. In the

professors’ view, four years is not enough. Overruling a four-year-old precedent

“would suggest that this Court had not deliberated adequately in 2018.” 44

To be clear, we do not contend that the court failed to deliberate adequately

in 2018. But we do not agree that every state supreme court decision is entitled

to some minimum try-out period before it can be challenged. In the same month

that our court decided PPH II, we also decided TSB Holdings, L.L.C. v. Board of

Adjustment for City of Iowa City, 913 N.W.2d 1, 11–14 (Iowa 2018), which

unanimously overruled a case decided only one year prior. In TSB Holdings, we

explained at some length why the prior decision was wrong. See id. And that

decision was joined both by all members of the PPH II majority (except for two

justices who took no part) and by the PPH II dissenters. Id. at 19.

The professors urge that adhering to a precedent when the membership of

a court changes “refutes the cynical view that a supreme court is a political

institution guided by the justices’ personal values, rather than the law.” But we

know that the professors do not share that cynical view, so why do they ask us

to act in fear of it? Shouldn’t we instead follow our solemn oaths to uphold the

Iowa laws and constitution? In the end, court decisions should be—and we

believe are—judged by the strength of their reasoning, not by the identity of the

persons who wrote or joined them.13

The professors maintain that “[o]n appropriate occasions, a supreme court

may overrule a prior case to bring the law up to date.” Yet, constitutional law

isn’t just a matter of bringing the law up to date; sometimes it also involves

restoring original principles. “Constitutional interpretation is not Darwinian

13The professors implicitly acknowledge this point. They defend PPH II by making the modest claim that “[t]he reasoning in [PPH II] is as good as or better than the reasoning in many cases.” 45

evolution, and a decision of this court today is not superior to the decisions that

preceded it just because it is more recent.” Schmidt, 909 N.W.2d at 817.14

The professors also refer to a reliance interest, but their reference is to

Roe, which is forty-nine years old, rather than PPH II, which is four years old and

goes well beyond Roe. Reconsideration of Roe is not before us, nor could it be.

We believe the views of Justice Amy Coney Barrett, who was writing at the

time as a law professor, are worth quoting:

To be sure, partisan politics are not a good reason for overturning precedent. But neither are they a good reason for deciding a case of first impression. One who believes that an overruling reflects votes cast based on political preference must believe that all cases (or at least all the hot-button ones) are decided that way, for there would be no reason for politics to taint reversals but not initial decisions. If all such decisions are based on politics, there is no reason why the precedent-- itself thus tainted--is worthy of deference. (Nor, for that matter, would there be reason to accept the legitimacy of judicial review.) Basic confidence in the Supreme Court requires the assumption that, as a general matter, justices decide cases based on their honestly held beliefs about how the Constitution should be interpreted. If one is willing to make that assumption about the decision of cases of first impression, one should also be willing to make it about the decision to overrule precedent.

14Brown v. Board of Education, 347 U.S. 483 (1954), is a good example of a case that overruled precedent and restored the rightful meaning of our Federal Constitution. The Fourteenth Amendment had enacted to prevent state governments from discriminating against Black Americans, yet it had been distorted so that it had become a license to discriminate. As Professor Charles Black memorably said,

[I]f a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated “equally,” I think we ought to exercise one of the sovereign prerogatives of philosophers—that of laughter.

Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 424 (1960). 46

Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev.

1711, 1729 (2013).

In conclusion, we think any stare decisis considerations are relatively

weak here because PPH II was a constitutional decision, it was decided only four

years ago, it has not been reaffirmed, and it was consciously based on the notion

that constitutional interpretation is subject to change.

D. Should PPH II Be Overruled? We now come to the question of whether

PPH II should be overruled. Perhaps a good place to start is with the plurality

opinion in Casey, where the Supreme Court declined to overrule Roe. The

plurality in Casey focused on several considerations. 505 U.S. at 855–59.

Although Roe had engendered opposition, it had in no sense proved practically

“unworkable.” Casey, 505 U.S. at 855. Also, over nearly two decades, people had

“ordered their thinking and living around that case.” Id. at 856. Additionally, Roe

had been expressly reaffirmed in 1983, ten years after it had been decided.

Casey, 505 U.S. at 858. And Roe doctrinally fell within a larger group of cases

that recognized the need to balance a State’s interest in the protection of human

life with individual liberty. Casey, 505 U.S. at 857.

None of those observations applies to PPH II. To begin with, we question

the workability of PPH II. The issue isn’t whether the result in PPH II is workable.

Clearly, it is possible to administer a rule that a 72-hour waiting period is not

allowed. The issue is whether the doctrine set forth in PPH II is workable. Here

we have doubts. 47

As used in PPH II, “fundamental right” means that any regulation of

abortion must target only women who would benefit from that particular

regulation—for example, in that case, “patients who are uncertain when they

present for their procedures.” PPH II, 915 N.W.2d at 243. Otherwise, the

regulation “sweeps with an impermissibly broad brush.” Id.

That’s an impossible-to-meet standard unless the point is to eliminate all

regulations governing abortion. It is exceedingly difficult to tailor any regulation

so it applies only to those who would benefit from that specific regulation. For

example, how would you know which gun purchasers might fail a background

check until you run the background check? Likewise, how do you know who is

truly uncertain and could benefit from additional information about pregnancy,

childbirth, and abortion until you have provided that information and given them

time to review it? Under PPH II, even a simple informed consent requirement

would be unconstitutional if it applied to all women seeking an abortion.

Needless to say, PPH II also calls into question the constitutionality of Iowa’s

parental notification law. See Iowa Code ch. 135L.

Normally, we allow laws to take effect, and then allow persons who are

adversely affected by those laws to bring “as applied” challenges. But PPH II

involved a facial challenge. 915 N.W.2d at 232. “[T]o succeed on a facial

challenge, the petitioner must prove a statute is ‘totally invalid and therefore,

“incapable of any valid application.” ’ ” Id. (quoting Santi v. Santi, 633 N.W.2d

312, 316 (Iowa 2001)). Thus, under PPH II, any abortion regulation is facially

unconstitutional for all purposes unless as drafted it contains every conceivable 48

necessary exception that the court can think of. See id. at 243 (listing various

exceptions missing from the 72-hour waiting period). That’s rational basis

deference in reverse.15

PPH II has no discernible endpoint until childbirth. See id. at 237 (defining

the fundamental right, without qualification, as “the ability to decide whether to

continue or terminate a pregnancy”). Any burden on abortion—even very late in

the pregnancy—must be narrowly tailored to promote a compelling state interest.

See id. at 244. Whereas Roe and Casey make clear that the constitutional right

to terminate a pregnancy ends at viability, PPH II dismisses that approach with

the statement, “We do not, and could not, endeavor to discern the precise

moment when a human being comes into existence.” Id. at 243.

Yet, after our court had said all these things in PPH II, we also proclaimed,

“[W]e do not today hold, that a woman’s right to terminate a pregnancy is

unlimited.” Id. at 239. But how then is it limited? PPH II doesn’t say, or even

suggest, a possible answer.16

Such an internally contradictory approach is unworkable.

15As discussed below, Florida also subjects abortion regulations to strict scrutiny based on a specific privacy right that was added to the Florida Constitution in 1980. See Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1246 (Fla. 2017). But in practice, Florida does not follow PPH II’s approach of invalidating a law on its face unless every potential application of that law furthers a compelling state interest. See State v. Gainesville Woman Care, LLC, 278 So. 3d 216, 222 (Fla. Dist. Ct. App. 2019) (reversing a summary judgment invalidating a 24-hour notice requirement and explaining that “[f]or this facial challenge, the correct legal test is not whether the 24-hour Law violates the constitutional rights of some women in some circumstances, but whether it violates the rights of all women in all circumstances”). 16Today’s dissent defending PPH II offers no reassurance, either. Unlike PPH II, today’s dissent does not even acknowledge that the State has a compelling interest in promoting human life. See PPH II, 915 N.W.2d at 239 (“[T]he state has a compelling interest in promoting potential life.”). No such language appears in today’s dissent. 49

Furthermore, one cannot say that people in Iowa have “ordered their

thinking and living” around PPH II. Casey, 505 U.S. at 856. In fact, as one of the

amici supporting Planned Parenthood writes, PPH II “did not change the status

quo.” PPH II invalidated a recently enacted 72-hour waiting period. That left the

situation for women seeking an abortion in Iowa as it had been before.

Also, PPH II has not been reaffirmed. That is not surprising since it was

decided only four years ago.

Doctrinally, PPH II stands virtually alone, both inside and outside Iowa.

PPH II found a fundamental right to an abortion where others had not: in the

due process clause as a right “implicit in the concept of ordered liberty.” PPH II,

915 N.W.2d at 237. While some other state supreme courts have found a

fundamental right to an abortion within their state constitution, as is discussed

below, they have done so based on one or more substantive constitutional

guarantees. Conversely, states that find a right to an abortion in a state

constitutional due process clause have gone no further than the undue burden

test. See id. at 254 (Mansfield, J., dissenting) (“[S]tates relying on the due process

clauses of their state constitutions typically have applied the undue burden

test.”).

In 2019, one year after PPH II, the Kansas Supreme Court recognized a

fundamental constitutional right to an abortion. Hodes & Nauser, MDs, P.A. v.

Schmidt, 440 P.3d 461, 502 (Kan. 2019) (per curiam). However, unlike our court,

it relied on the inalienable rights clause while specifically declining to rely on the

due process clause. See id. at 485–86. The Kansas Supreme Court explained its 50

hesitation to rely on the due process clause, highlighting the distinction between

substantive and procedural rights:

A final and notable language distinction between section 1 [the inalienable rights clause] and the Fourteenth Amendment arises from another phrase found in the Amendment but not in section 1: “without due process of law.” In other words, the text of section 1 demonstrates an emphasis on substantive rights—not procedural rights. In contrast, the Fourteenth Amendment’s use of “the term ‘due process’ seem[s] to speak of procedural regularity.” Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888, at 272 (1985). Thus, section 1’s focus on substantive rights removes from our calculus one of the criticisms of Roe and other decisions of the United States Supreme Court relying on substantive due process rights under the Fourteenth Amendment.

Id. at 626–27.

Elsewhere, the story is similar. Minnesota has recognized a fundamental

right to an abortion under a combination of guarantees in the Minnesota

Constitution. Women of State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 19 (Minn.

1995). California has found a fundamental right to an abortion under California’s

constitutional privacy clause. Am. Acad. of Pediatrics v. Lungren, 940 P.2d 797,

819 (Cal. 1997). Likewise, Alaska has found a fundamental right to an abortion

encompassed within the right to privacy in the Alaska Constitution. Valley Hosp.

Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997); see Alaska

Const. art. I, § 22 (“The right of the people to privacy is recognized and shall not

be infringed.”). Montana has found a fundamental right to an abortion based on

a constitutional guarantee of individual privacy that has no counterpart in the

Iowa Constitution. Armstrong v. State, 989 P.2d 364, 382 (Mont. 1999); see Mont.

Const. art. II, § 10 (“The right of individual privacy is essential to the well-being 51

of a free society and shall not be infringed without the showing of a compelling

state interest.”). Tennessee, until the court’s decision was overturned by a

constitutional amendment, likewise relied on various grants of rights within the

Tennessee Constitution “more particularly stated than those stated in the federal

Bill of Rights.” Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1,

13–15 (Tenn. 2000), superseded by constitutional amendment, Tenn. Const.

art. I, § 36. New Jersey has found a fundamental right to an abortion within the

“natural and unalienable rights” clause of the New Jersey Constitution. Planned

Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620, 629, 638 (N.J. 2000). Florida

has pinpointed a fundamental right to an abortion within Florida’s constitutional

right to privacy, which was added to the Florida Constitution in 1980 and which

establishes the right of every person to “be let alone and free from governmental

intrusion into [one’s] private life.” Gainesville Woman Care, LLC v. State, 210

So. 3d 1243, 1246, 1252 (Fla. 2017) (alteration in original); see Fla. Const. art. I,

§ 23.17

Meanwhile, state courts focusing specifically on the due process clause

have overwhelmingly found that the right to an abortion in the state constitution

is no broader than the federal right (if it exists at all). See, e.g., Hope Clinic for

Women, Ltd. v. Flores, 991 N.E.2d 745, 757, 760 (Ill. 2013) (finding a due process

right to an abortion in the Illinois Constitution congruent with the federal right

17In Hope v. Perales, the New York Court of Appeals found a fundamental right to an abortion under the due process clause of the New York Constitution. 634 N.E.2d 183, 186 (N.Y. 1994). But the court did not hold that the right was any broader than the right to an abortion under the United States Constitution. See id. So as a practical matter, it was not “fundamental” in the sense that PPH II used that term. 52

and rejecting the existence of a right to an abortion within the privacy clause);

Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 185

S.W.3d 685, 691–92 (Mo. 2006) (en banc) (per curiam) (applying the due process

clause of the Missouri Constitution as giving the same protection to a pregnant

woman recognized by Casey); Pro-Choice Miss. v. Fordice, 716 So. 2d 645, 655

(Miss. 1998) (en banc) (applying the undue burden test under the Mississippi

Constitution and noting that “[t]he abortion issue is much more complex than

most cases involving privacy rights”); Preterm Cleveland v. Voinovich, 627 N.E.2d

570, 584 (Ohio Ct. App. 1993) (“[W]e find no reason under the circumstances of

this case to find that the Ohio Constitution confers upon a pregnant woman a

greater right to choose whether to have an abortion or bear the child than is

conferred by the United States Constitution, as explained in the plurality opinion

of [Casey].”); see also Planned Parenthood Ariz., Inc. v. Am. Ass’n of Pro-Life

Obstetricians & Gynecologists, 257 P.3d 181, 188–90 (Ariz. Ct. App. 2011)

(applying the federal undue burden test under the Arizona Constitution even

though it contains an express privacy clause); Clinic for Women, Inc. v. Brizzi,

837 N.E.2d 973, 983–84 (Ind. 2005) (holding that Indiana’s inalienable rights

clause provides protection similar to the Casey undue burden test); Planned

Parenthood League of Mass., Inc. v. Att’y Gen., 677 N.E.2d 101, 103–04 (Mass.

1997) (explaining that Massachusetts does not follow federal abortion precedent

under the Massachusetts due process clause which has different wording, but

the reviewing court does engage in balancing and does not require the state to

advance a compelling state interest); State v. Koome, 530 P.2d 260, 263 (Wash. 53

1975) (en banc) (applying federal abortion precedent to strike down a Washington

statute under both federal and state due process).

So, our point is: State courts recognizing broader, “fundamental” abortion

rights have at least had textual grounds for doing so other than the due process

clause.

Not only does PPH II deviate from the approach taken by other states, but

it also departs from the approach taken by our court prior to 2018. Previously,

even when we deemed a right related to parenting fundamental and “implicit in

the concept of ordered liberty” for purposes of substantive due process, we

analyzed whether the governmental restriction “directly and substantially

intrude[d] upon” it. Hensler v. City of Davenport, 790 N.W.2d 569, 581, 583 (Iowa

2010) (recognizing that the right to control the parenting of a child is

fundamental). We explained that such fundamental rights are “not absolute.” Id.

at 583. As we put it, “Not every government action that relates in any way to a

fundamental liberty must be subjected to strict-scrutiny analysis.” McQuistion v.

City of Clinton, 872 N.W.2d 817, 833 (Iowa 2015) (stating that there is a

fundamental right to procreate). Instead, the alleged infringement would be

unconstitutional only if it had “a direct and substantial impact” on the

fundamental right. Id. (quoting State v. Seering, 701 N.W.2d 655, 663 (Iowa

2005), superseded by statute on other grounds, 2009 Iowa Acts ch. 119, § 3

(codified at Iowa Code § 692A.103 (Supp. 2009)), as recognized in In re T.H., 913

N.W.2d 578, 587–88 (Iowa 2018)); see also In re K.M., 653 N.W.2d 602, 608–09

(Iowa 2002) (using a blend of tests to uphold a statute that shifted the balance 54

in parental termination cases in favor of the best interests of the child and

against reunification).

In other words, what we followed pre-2018 with respect to rights to family,

procreation and child-rearing was something like the undue burden test of

Casey. The government could not unduly burden those rights; that would trigger

strict scrutiny. But it could take actions that affected the right without triggering

strict scrutiny so long as the action did not have a direct and substantial impact.

Cf. Casey, 505 U.S. at 877 (“A finding of an undue burden is a shorthand for the

conclusion that a state regulation has the purpose or effect of placing

a substantial obstacle in the path of a woman seeking an abortion of a nonviable

fetus.”).

Constitutional interpretation should begin with the constitutional text

itself. See State v. Wright, 961 N.W.2d 396, 402–04 (Iowa 2021) (interpreting the

Iowa Constitution by starting with the text and using “precedent, history,

custom, and practice” as aids to determine its meaning). We note that on the

specific topic of abortion, the Iowa Constitution is silent: if one were to search

the constitution’s text for terms such as “abortion” and “pregnancy,” it would

yield no results.18 Therefore, if a right to have an abortion is in our state’s

constitution, it must be encompassed in some more general textual source. In

PPH II, we named the due process clause as that broader source. 915 N.W.2d at

18The Roe Court, which found abortion to be a protected right because of a general right to privacy, acknowledged, “The Constitution does not explicitly mention any right of privacy.” 410 U.S.113, 152 (1973); see also State v. Hartog, 440 N.W.2d 852, 855 (Iowa 1989) (noting that “rights of privacy have been found in the shadows of specific constitutional provisions”). 55

232–33 (majority opinion). But, upon examination, the language of that provision

does not support PPH II’s ultimate holding.

Textually, there is no support for PPH II’s reading of the due process clause

as providing fundamental protection for abortion. Article I, section 9 states, “[N]o

person shall be deprived of life, liberty, or property, without due process of law.”

Iowa Const. art. I, § 9. Section 9 doesn’t speak in terms of absolutes. If liberty

cannot be limited without due process of law, the logical implication is that

liberty can be limited with due process of law. Certainly that conclusion seems

correct when there are important interests—such as life itself—on both sides.

Only one opinion in PPH II discussed the ratification debates on article I,

section 9. That was the dissenting opinion:

The Chairman of the Committee on the Bill of Rights, Mr. Ells, explained to the convention that this clause had been “transcribed . . . from” the United States Constitution, and that due process means “no person shall be deprived of life, liberty or property, without a legal proceeding based upon the principles of the common law, and the constitution of the United States.” [The Debates at 101–02.] The due process clause, in other words, guarantees certain procedures. The idea of substantive due process would have made no sense to our framers.

PPH II, 915 N.W.2d at 247 (Mansfield, J., dissenting).

Historically, there is no support for abortion as a fundamental

constitutional right in Iowa.19 As the PPH II dissent pointed out, abortion became

19PPH II did not even attempt to find historical support for a fundamental right to abortion. The Kansas Supreme Court, to its credit, at least made an effort to articulate a “historical and philosophical basis” for its fundamental-right holding. Hodes & Nauser, MDs, P.A., 440 P.3d at 480. Its opinion quoted John Locke, Edward Coke, and William Blackstone as evidence for natural rights to personal autonomy and bodily integrity. See, e.g., id. (quoting Locke’s statement that “every Man has a Property in his own Person” and Edward Coke’s observation “that an ordinance setting requirements on the clothes that certain merchants could 56

a crime in our state on March 15, 1858—just six months after the effective date

of the Iowa Constitution—and remained generally illegal until Roe v. Wade was

decided over one hundred years later. Id.

Planned Parenthood doesn’t dispute this. Instead, it notes that the

common law only recognized abortion as a criminal offense after “quickening”—

when the mother first feels fetal movement. See Roe, 410 U.S. at 132; Abrams v.

Foshee, 3 Iowa (Clarke) 274, 278–80 (1856) (finding that an accusation that a

woman had an abortion could not be slander because pre-quickening abortions

were not a crime at common law and, in 1856, Iowa had no law prohibiting

abortion). But abortion at any stage of pregnancy had been criminalized by

statute in Iowa as early as 1843. See Iowa Rev. Stat. ch. 49, § 10 (Terr. 1843)

(“[E]very person who shall administer to any woman, pregnant with a child, any

medicine, drug, or substance whatever, or shall employ any other means with

intent thereby to destroy such child, and thereby cause its death, unless the

same shall be necessary to preserve the life of the mother, shall be deemed guilty

of manslaughter.”).

wear was against the law of the land ‘because it was against the liberty of the subject, for every subject hath freedom to put his clothes to be dressed by whom he will’ ”). But further digging into these sources reveals that the quoted jurists and philosophers that heavily influenced American law would almost certainly not have considered abortion to be included in an individual’s natural rights. See Skylar Reese Croy & Alexander Lemke, An Unnatural Reading; The Revisionist History of Abortion in Hodes v. Schmidt, 32 U. Fla. J.L. & Pub. Pol’y 71, 82–86 (2021). Locke, a physician, “explicitly condemned abortion.” Id. at 82. From a medical ethics perspective, he considered abortion to be in the same vein as suicide. Id. at 82–83. Coke stated that an abortion after quickening was a serious misdemeanor. Id. at 84. Blackstone believed an abortion after quickening to be manslaughter and stated, “An infant . . . in the mother’s womb, is [s]uppo[s]ed in law to be born for many purpo[s]es.” Id. at 85–86 (alterations in original) (quoting 1 William Blackstone, Commentaries on the Laws of England 129–30 (1765)). 57

For whatever reason, the 1843 statute criminalizing abortion in Iowa did

not carry over in the codification that occurred in 1851. See Iowa Code ch. 138

(1851) (listing “offenses against the lives and persons of individuals” without

including an abortion-related crime). But in March 1858, as noted, the Iowa

legislature once again passed a law outlawing abortion. See 1858 Iowa Acts ch.

58, § 1 (codified at Revs. of 1860, Stats. of Iowa § 4221 (1860)). That law provided

criminal penalties for willfully using any means to procure a miscarriage at any

stage of pregnancy. Revs. of 1860, Stats. of Iowa § 4221. It stated,

[E]very person who shall willfully administer to any pregnant woman, any medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever, with the intent thereby to procure the miscarriage of any such woman, unless the same shall be necessary to preserve the life of such woman, shall upon conviction thereof, be punished by imprisonment in the county jail for a term of not exceeding one year, and be fined in a sum not exceeding one thousand dollars.

Id.20

Planned Parenthood argues that this early ban on abortion simply

maintained the common law distinction between abortions before and after

quickening. But our first and only case to address this issue, State v. Fitzgerald,

interpreted the law to apply throughout pregnancy. 49 Iowa 260, 261 (1878). In

Fitzgerald, the defendant challenged the district court’s refusal “to instruct the

jury that the crime could not be committed upon a woman who was not quick

20Afew years after this law took effect, our court had to decide whether a woman performing her own abortion could be convicted under section 4221. Hatfield v. Gano, 15 Iowa 177, 178 (1863). Although the prohibition applied to “every person,” we determined “that it was the person who used the means with the pregnant woman to procure the abortion, and not the woman herself, that the Legislature intended to punish.” Id. 58

with child.” Id. We rejected this argument, stating, “The statute makes no such

qualification. . . . The crime is complete if the attempt be made at any time during

pregnancy.” Id.

Planned Parenthood also makes the valid point that women’s rights were

quite limited in 1857 and have expanded since then. But even as women’s rights

expanded, the ban on abortion remained in place until Roe superseded it. See

Iowa Code § 701.1 (1973) (“If any person, with intent to produce the miscarriage

of any woman, willfully administer to her any drug or substance whatever, or,

with such intent, use any instrument or other means whatever, unless such

miscarriage shall be necessary to save her life, he shall be imprisoned in the

penitentiary for a term not exceeding five years, and be fined in a sum not

exceeding one thousand dollars.”).

Beyond its textual and historical flaws, PPH II is also flawed in its core

reasoning. Constitutions—and courts—should not be picking sides in divisive

social and political debates unless some universal principle of justice stands on

only one side of that debate. Abortion isn’t one of those issues. “Each side in the

debate is motivated by a serious, legitimate concern: on the one hand, a woman’s

ability to make decisions regarding her own body; on the other, human life.”

PPH II, 915 N.W.2d at 246 (Mansfield, J., dissenting). PPH II has a one-sided

quality to it. According to the majority, abortion advocates speak for “the very

heart of what it means to be free.” Id. at 237 (majority opinion). On the other 59

hand, abortion opponents are raising mere “moral scruples.” Id. at 244.21

Therefore, unsurprisingly, under the fundamental rights/strict scrutiny

approach taken in PPH II, there is no effort to balance: Having an abortion

without delay is deemed more important than preserving unborn life.

One remarkable characteristic of our society is that courts have been

successful leaders at times. By invoking first principles, they have spurred social

and political changes that received consensus support only after they were

mandated by court decisions. Brown v. Board of Education, 347 U.S. 483 (1954),

is one example of this phenomenon. In our state, Varnum v. Brien, 763 N.W.2d

862 (Iowa 2009), may be another. But no one suggests that any of the abortion

rulings have achieved this status. Our country remains as divided as ever on

abortion.

Consider also a defense of PPH II published in America’s most prestigious

law review. See Recent Case, State Constitutional Law—Abortion Law—Iowa

Supreme Court Applies Strict Scrutiny to Abortion Restriction.—Planned

Parenthood of the Heartland v. Reynolds, 915 N.W.2d 206 (Iowa 2018), 132 Harv.

L. Rev. 795, 799–802 (2018). What is striking is how little of substance the

21The dissent in PPH II further explained the majority’s one-sidedness: [T]he majority uses the word “life” at times, but typically as part of the phrase “promoting potential life.” This anodyne phrasing treats restrictions on abortion as if they were analogous to tax credits for having more children. Elsewhere, the majority characterizes Senate File 471 as based on “moral scruples” against abortion. Here again, the majority’s language minimizes the anti-abortion position. As a practical matter, it equates opposition to abortion with opposition to gambling. To be clear, many if not most abortion opponents view it as ending a life. 915 N.W.2d at 249 (Mansfield, J., dissenting). 60

authors can say on behalf of the PPH II decision. In the end, they praise PPH II

as a “laudable example of a state court’s contribution to the constitutional

discourse” because it “untethers Iowa from a weak and vulnerable federal

standard and provides a stronger layer of protection for abortion rights in a state

where abortion access is already limited.” Id. at 802. This is not an analytical

defense, it is a defense based purely on outcomes.

In summary, PPH II lacks textual and historical support. It is doctrinally

inconsistent with prior Iowa jurisprudence concerning family rights that followed

a balancing approach. Its rhetoric is one-sided. Its constitutional footing is

unsound. While it is true that some other states have provided heightened

protection for abortion rights, they have done so by invoking more relevant

substantive constitutional guarantees—such as the right of privacy—not a

procedural clause like due process.22

E. Is PPH II’s Equal Protection Discussion a Basis for Upholding the

Decision? PPH II also found that the 72-hour waiting period violated the equal

protection clause in article I, section 6. 915 N.W.2d at 244–46.23 Our treatment

22See PPH II, 915 N.W.2d at 254 (Mansfield, J., dissenting) (“Yet a crucial distinction is

that those states typically have explicit guarantees of privacy in their constitutions. And for the most part, those privacy guarantees have been adopted only recently.”). 23PPH II also quoted article I, section 1, Iowa’s inalienable rights clause, and seemed to

characterize it as part of our equal protection clause. 915 N.W.2d at 244. Typically, we use the term “equal protection clause” to refer to article I, section 6. See, e.g., LSCP, LLLP v. Kay-Decker, 861 N.W.2d 846, 858 n.6 (Iowa 2015). Regardless, with the exception of one case involving a limit on common law nuisance claims, Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004), we have not recognized in any case decided in the last century that the inalienable rights clause carries any independent force. Instead, we have said that it replicates the rational basis test: Where liberty or property rights are allegedly infringed by a statute or ordinance, our inalienable rights cases have held that, even if the plaintiff’s asserted interest is within the scope of the inalienable rights clause, the rights 61

of equal protection was brief. We discussed two cases from 1872 and 1910 that

took a primeval view of women’s rights. See id. at 244–45. We then discussed

two cases from 1982 and 1996 that took a more modern view. See id. at 245. We

quoted from Justice Ginsburg’s famous law review article on Roe, written before

she became a justice. See id. (quoting Ruth Bader Ginsburg, Some Thoughts on

Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985)).

We then concluded that restrictions on abortion deny women “the right . . . to be

equal participants in society.” Id. “Without the opportunity to control their

reproductive lives, women may need to place their educations on hold, pause or

abandon their careers, and never fully assume a position in society equal to men,

who face no such similar constraints for comparable sexual activity.” Id.

On reflection, there are flaws in this analysis. The text of article I, section 6

requires that general laws “shall have a uniform operation” and the general

assembly “shall not grant to any citizen or class of citizens, privileges or

immunities, which, upon the same terms shall not equally belong to all citizens.”

Iowa Const. art. I, § 6. By its terms, this language is directed at laws that on

their face treat some citizens differently than others. The favorable cases on

which the majority relied dealt with laws that could have treated men and women

the same and didn’t. See PPH II, 915 N.W.2d at 244–45 (citing a case that

guaranteed by the provision are subject to reasonable regulation by the state in the exercise of its police power. This formulation, of course, is virtually identical to the rational-basis due process test or equal protection tests under the Federal Constitution. City of Sioux City v. Jacobsma, 862 N.W.2d 335, 352 (Iowa 2015) (citations omitted). 62

involved a military academy that did not admit women, United States v. Virginia,

518 U.S. 515 (1996), and a case that involved a nursing program that did not

admit men, Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982)).

PPH II skipped a step in the equal protection analysis—the first one. Under

our well-established equal protection precedent, before finding a violation, we

first needed to find that women were similarly situated to men as it related to

the purposes of the law. See, e.g., State v. Treptow, 960 N.W.2d 98, 104 (Iowa

2021) (“The first step in our equal protection analysis is to determine whether

the challenged law makes a distinction between similarly situated individuals

with respect to the purposes of the law.”). Women undeniably are not. Planned

Parenthood’s brief acknowledges as much, stating, “Women and men are not

similarly situated in terms of the biological capacity to be pregnant . . . .”

As the PPH II dissent put it,

Equal protection requires treating similarly situated people alike, see, e.g., Tyler v. Iowa Dep’t of Revenue, 904 N.W.2d 162, 166 (Iowa 2017), yet the very gist of the majority’s argument is that women are situated differently from men. They alone bear the burdens of pregnancy. The majority cites no other court that has accepted this line of thinking—i.e., that an abortion restriction per se discriminates against all women while unconstitutionally favoring men.

915 N.W.2d at 258 (Mansfield, J. dissenting).

The relationship between abortion and women’s quest for equal

participation in society is more complicated than PPH II recognized. See, e.g.,

Kristina M. Mentone, When Equal Protection Fails: How the Equal Protection

Justification for Abortion Undercuts the Struggle for Equality in the Workplace, 70

Fordham L. Rev. 2657, 2659 (2002) (“The equal protection argument for abortion 63

fails to truly equalize women by intimating that, for women to be fully equal

members of society and to participate more fully in the professions, they must

be able to choose not to bear children. This reasoning may help to equalize

women who choose not to be mothers, but it perpetuates the view that mothers

cannot be truly equal because motherhood interferes with their professional

success. Thus, the equal protection argument for abortion aggravates the

work/family conflict for mothers.” (footnotes omitted)).

Finally, PPH II’s equal protection discussion was to some extent an

afterthought that did no real work in the actual legal analysis. We applied the

fundamental rights/strict scrutiny branch of equal protection review. See PPH II,

915 N.W.2d 245–46 (majority opinion). And why did we do so? Because we had

already found that the right to an abortion was protected as a fundamental right

by substantive due process. See id.

For these reasons, we conclude that PPH II’s equal protection rationale

cannot independently sustain that decision and does not alter our determination

today to overrule it.

F. How Should We Dispose of This Appeal? The State moved for

summary judgment only on count I of the petition, which alleged that HF 594

violates the single-subject rule. For the reasons stated in part IV.A, we conclude

that this claim fails as a matter of law.

The State did not move for summary judgment on Planned Parenthood’s

claims in counts II, III, and IV of the petition. Those allege that the 24-hour

waiting period enacted by HF 594 violates article I, section 9 (due process); 64

article I, sections 1 and 6 (equal protection); and article I, section 1 (inalienable

rights) respectively. In lieu of moving for summary judgment itself, the State

simply resisted Planned Parenthood’s motion for summary judgment on counts

II and III based on issue preclusion.

On appeal, the State does ask that PPH II be overruled. That issue is fully

briefed by the State and by Planned Parenthood. As we have explained in

part IV.B, that issue is intertwined with the question of whether issue preclusion

applies here. If the basic legal holding of PPH II does not stand, there is no basis

to apply issue preclusion in this case.

For the reasons we have discussed in parts IV.C–E, we conclude that PPH

II should be overruled and that the grant of summary judgment based on issue

preclusion should be reversed as to counts II and III.

The State does not take a position on whether the undue burden test or

the rational basis test should replace PPH II’s fundamental rights/strict scrutiny

standard. In the only paragraph of its briefing devoted to this issue, the State

says that when strict scrutiny is not appropriate, the Iowa Constitution

“typically” requires that a statute need only meet the rational basis test but then

adds that “this Court could choose to follow Casey.” Quoting Casey, the State

observes that “[t]he undue-burden test could provide an ‘appropriate means of

reconciling the State’s interest with the woman’s constitutionally protected

liberty.’ ” Casey, 505 U.S. at 876. Notably, we applied the undue burden test in

PPH I based on the State’s concession for purposes of that case that the Iowa 65

Constitution afforded a right to abortion consistent with the federal standard.

865 N.W.2d at 254.

We conclude that we should not go where the parties do not ask us to go.

See Feld v. Borkowski, 790 N.W.2d 72, 78 (Iowa 2010) (“Our obligation on appeal

is to decide the case within the framework of the issues raised by the parties.”).

That is, we should not engage in “freelancing under the Iowa Constitution

without the benefit of an adversarial presentation.” See PPH II, 915 N.W.2d at

255 n.11 (Mansfield, J., dissenting) (quoting State v. Tyler, 830 N.W.2d 288, 299

(Iowa 2013)).

It is true that an amicus curiae asks us to specifically hold that the

24-hour waiting period is subject to rational basis review. But normally we do

not allow amici curiae to raise new issues. Iowa Assn. of Bus. & Indus. v. City of

Waterloo, 961 N.W.2d 465, 476 (Iowa 2021). Planned Parenthood has not briefed

the issue, so there is no adversarial briefing. Cf. id. (reaching an argument raised

by an amicus where the opposing party also briefed it so there was “a fully

developed adversarial presentation on the issue”).24 Also, because of the

24The 2017 Godfrey case is another recent example where we declined to reach a legal issue that an amicus urged us to decide, instead leaving that issue in the first instance for briefing by the parties before the district court, for district court consideration and determination, and ultimately for our review. 898 N.W.2d 844. There, we held that the Iowa Constitution allowed direct claims for violations of due process rights. Id. at 847, 880. Amici curiae urged us to decide whether the plaintiff even had a viable due process claim under the law of Iowa. See id. at 898 (Mansfield, J., dissenting). We declined to decide that issue, stating that “we take no view on the merits of any due process claim raised in this case.” Id. at 876 (majority opinion). As we put it, “We emphasize our holding is based solely on the legal contentions presented by the parties.” Id. at 880. Four years later, after the district court had ruled that the plaintiff had a legally viable due process claim and a jury had awarded damages, we reached the legal question we had deferred and reversed the district court unanimously. See Godfrey v. State, 962 N.W.2d 84, 117 66

substantive differences between the undue burden test and the rational basis

test, deciding this issue could result in granting the State more relief than it

requested on appeal. It is one thing to consider an additional argument, another

to grant additional relief not sought by the appellant.

Lastly, the United States Supreme Court is expected to decide an

important abortion case this term. See Dobbs, 141 S. Ct. 2619. That case could

decide whether the undue burden test continues to govern federal constitutional

analysis of abortion rights. We expect the opinions in that case will impart a

great deal of wisdom we do not have today. Although we take pride in our

independent interpretation of the Iowa Constitution, often our independent

interpretations draw on and contain exhaustive discussions of both majority and

dissenting opinions of the United States Supreme Court.

We do not prejudge the position our court will take. We agree with the

PPH II majority that “[a]utonomy and dominion over one’s body go to the very

heart of what it means to be free.” 915 N.W.2d at 237 (majority opinion). We also

agree that “being a parent is a life-altering obligation that falls unevenly on

women in our society.” Id. at 249 (Mansfield, J., dissenting). Yet, we must

disapprove of PPH II’s legal formulation that insufficiently recognizes that future

human lives are at stake—and we must disagree with the views of today’s dissent

that the State has no legitimate interest in this area.

(Iowa 2021). We held that the plaintiff as a matter of law had no due process claim and vacated the award of damages. Id. at 113–14, 117; see also id. at 149–50 (Appel, J., concurring in part and dissenting in part). 67

V. Conclusion.

For the foregoing reasons, we reverse the judgment of the district court

and remand for further proceedings consistent with this opinion.

Waterman and Oxley, JJ., join this opinion, McDonald and McDermott,

JJ., join this opinion as to parts II, III, and IV.A–E, and Christensen, C.J., joins

this opinion as to parts II, III, and IV.A–B. McDermott, J., files an opinion

concurring in part and dissenting in part, in which McDonald, J., joins.

Christensen, C.J., files an opinion concurring in part and dissenting in part, in

which Appel, J., joins as to parts I–II. Appel, J., files a dissenting opinion. 68

#21–0856, Planned Parenthood of the Heartland, Inc. v. Reynolds

McDERMOTT, Justice (concurring in part and dissenting in part).

I join almost all parts of the court’s opinion, including its resolution of the

plaintiffs’ single-subject challenge and issue preclusion claim, and its overruling

of Planned Parenthood of the Heartland v. Reynolds (PPH II), 915 N.W.2d 206,

220–21 (Iowa 2018). But I dissent from my colleagues’ remand directing the

district court to apply an “undue burden” standard, subject (apparently) to the

standard being “litigated further” by the parties. In my view, we should

emphatically reject—not recycle—Casey’s moribund undue burden test and

instead direct the district court to apply the rational basis test to the plaintiffs’

constitutional challenge.

Lest we forget, we already have well-established tiers of constitutional

scrutiny for the type of challenge presented in this case. When someone brings

a claim alleging a violation of a due process right as the plaintiffs do in this case,

the nature of the individual right at stake dictates the constitutional test that

the court applies. If the government action implicates a “fundamental” right or

classifies people “on the basis of race, alienage, or national origin,” we apply the

strict scrutiny test and determine whether the government’s action is narrowly

tailored to serve a compelling government interest. Sanchez v. State, 692 N.W.2d

812, 817 (Iowa 2005). But if the right at stake is not a fundamental right, then

we apply the rational basis test and determine whether the law is “rationally

related to a legitimate state interest.” Id. at 817–18 (quoting City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). 69

A “fundamental right,” as we apply that term in our constitutional

analysis, doesn’t simply mean “important.” King v. State, 818 N.W.2d 1, 26 (Iowa

2012). To qualify as a fundamental right, the alleged right at issue must

objectively be “deeply rooted” in our “history and tradition” and “implicit in the

concept of ordered liberty.” Hensler v. City of Davenport, 790 N.W.2d 569, 581

(Iowa 2010) (quoting Chavez v. Martinez, 538 U.S. 760, 775 (2003)). Whether

abortion is deeply rooted in our history and tradition determines whether it’s a

fundamental right and thus whether it’s protected by the Iowa Constitution. It

isn’t for us, as justices on a court, to decide whether the Iowa Constitution should

provide a right to abortion; we must decide whether the Iowa Constitution in fact

does provide a right to abortion. “[T]he rule of law is in unsafe hands when courts

cease to function as courts and become organs for control of policy.” Justice

Robert H. Jackson, The Struggle for Judicial Supremacy 322 (1941).

As the majority opinion thoroughly describes, abortion rights weren’t

rooted at all in our state’s history and tradition, let alone “deeply” rooted. The

deep roots that exist are, in fact, of common law and statutory prohibition in

favor of protecting all life. As this court explained around the time of Iowa’s

founding:

The common law is distinguished, and is to be commended, for its all-embracing and salutary solicitude for the sacredness of human life and the personal safety of every human being. This protecting, paternal care, enveloping every individual like the air he breathes, not only extends to persons actually born, but, for some purposes, to infants in ventre sa mere. The right to life and to personal safety is not only sacred in the estimation of the common law, but it is inalienable. . . . The common law stands as a general 70

guardian holding its ægis to protect the life of all. Any theory which robs the law of this salutary power is not likely to meet with favor.

State v. Moore, 25 Iowa 128, 135–36 (1868) (citation omitted). Abortion is not a

fundamental right protected under the Iowa Constitution.

Yet having declared this, and thus that the strict scrutiny test that the

district court applied under PPH II isn’t the correct constitutional standard, my

colleagues remand the case with directions to the district court to apply “the

Casey undue burden test.” This test, of course, originates from the United States

Supreme Court’s plurality opinion in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 845–46 (1993) (plurality opinion). In

Casey, the Supreme Court reaffirmed several propositions of the holding in Roe

v. Wade, 410 U.S. 113 (1973), including that the Constitution protects a right to

an abortion before “fetal viability” (referring to the date the unborn can survive

outside the womb) “without undue interference from the State.” Id. at 846. Casey

further declares that the state, from the start of the pregnancy, possesses a

legitimate interest in protecting the health of the mother and the life of the

unborn, and that the state may restrict abortions after viability if the abortion

regulation contains exceptions for pregnancies endangering the mother’s life or

health. Id. Under Casey’s undue burden test, an abortion regulation will be held

unconstitutional if “its purpose or effect is to place a substantial obstacle in the

path of a woman seeking an abortion before” viability. Id. at 878.

The three-justice plurality in Casey attempted to salvage the “essential

holding” in the Court’s opinion in Roe that abortion ranks as a fundamental right

while distancing itself from much of Roe’s actual constitutional analysis. Id. at 71

869–78. In Roe, the Court stitched together several rights in the Bill of Rights

that the Court described as having created “zones of privacy” and then held that

a right to an abortion fell within these “zones.” Roe, 410 U.S. at 152–53. Roe’s

constitutional analysis has received criticism from academics and jurists across

the ideological spectrum. See, e.g., Akhil Reed Amar, Foreward: The Document

and the Doctrine, 114 Harv. L. Rev. 26, 110 (2000) (noting “it is hardly a state

secret that Roe’s exposition was not particularly persuasive, even to many who

applauded its result”); John Hart Ely, The Wages of Crying Wolf: A Comment on

Roe v. Wade, 82 Yale L.J. 920, 947 (1973) (concluding that Roe “is bad because

it is bad constitutional law, or rather because it is not constitutional law and

gives almost no sense of an obligation to try to be”); Ruth Bader Ginsberg, Some

Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev.

375, 376 (1985) (concluding that the Roe Court “presented an incomplete

justification for its action”). The Casey plurality abandoned Roe’s “zones of

privacy” analysis in favor of a “liberty” interest arising under the due process

clause of the Fourteenth Amendment. 505 U.S. at 846. The federal constitutional

test that arose from the Casey plurality’s efforts—the undue burden test—is thus

a creature of unusual and contentious origin.

As the Casey dissenters predicted, the undue burden test has vexed courts

trying to apply it. The undue burden test requires judges to determine whether

the abortion regulation will “prevent” or “deter” a “significant number of women

from obtaining an abortion.” Id. at 893–94. But the test offers no guidance on

how much prevention or deterrence will cause an abortion regulation to violate 72

the Constitution. Many states have passed abortion regulations in the years

since Casey endeavoring to achieve the enigmatic balance of “due” and “undue”

burdens. Scores of court battles with frequently varying outcomes have followed.

See, e.g., Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 171 (4th Cir. 2000)

(holding that abortion clinic licensing requirements did not impose an undue

burden); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2318 (2016)

(holding that surgical center requirements for abortion providers imposed an

undue burden); A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d

684, 692 (7th Cir. 2002) (holding that a mandatory second visit did not impose

an undue burden); Planned Parenthood of Del. v. Brady, 250 F. Supp. 2d 405,

410 (D. Del. 2003) (holding that a mandatory 24-hour waiting period imposed

an undue burden where the statute didn’t explicitly provide an exception for

maternal medical emergencies); Whole Woman’s Health v. Paxton, 10 F.4th 430,

451 (5th Cir. 2021) (holding that a 24-hour waiting period caused by a drug

injection intended to ensure “a less brutal pregnancy termination” did not

impose an undue burden). In Stenberg v. Carhart, members of Casey’s own

plurality that created the undue burden standard disagreed about how to apply

the test to a partial-birth abortion regulation. 530 U.S. 915, 947–51 (2000)

(O’Connor, J., concurring); id. at 956–79 (Kennedy, J., dissenting). The undue

burden test has proved, from its inception, to be an unworkable standard for

courts to apply.

The “inherently standardless nature” of the undue burden test opens wide

the gate for judges to inject their own policy preferences in deciding whether a 73

particular restriction creates an undue burden to getting an abortion. Casey,

505 U.S. at 992 (Scalia, J., concurring in the judgment in part and dissenting in

part). How “undue” a burden might be “depends heavily on which factors the

judge considers and how much weight” the judge assigns them. June Med.

Servs., L.L.C. v. Russo, LLC, 140 S. Ct. 2103, 2180 (2020) (Gorsuch, J.,

dissenting) (quoting Crawford v. Washington, 541 U.S. 36, 63 (2004)). An undue

burden standard inevitably leaves courts unable to provide predictability,

consistency, or coherence in its application. Regardless of outcome, the rule of

law inevitably loses when courts are made to attempt the undue burden test’s

balancing act. We need not adopt it in Iowa, and we should not adopt it in Iowa.

Again, we already have coherent, well-established tiers of review that we

routinely apply when analyzing whether a regulation infringes constitutional due

process rights. The waiting period statute challenged in this case implicates no

suspect classifications such as race, alienage, or national origin. See Sanchez,

692 N.W.2d at 817. And as discussed, abortion is not a fundamental right. When

“no suspect class or fundamental right is at issue, we apply the rational basis

test.” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 458 (Iowa

2013). The court should apply the rational basis test in analyzing the plaintiffs’

challenge to the abortion regulation in this case.

Statutes are presumed constitutional, and we will not declare something

unconstitutional under the rational basis test unless it “clearly, palpably, and

without doubt infringe[s]” a constitutional right. Residential & Agric. Advisory

Comm., LLC v. Dyersville City Council, 888 N.W.2d 24, 50 (Iowa 2016) (alteration 74

in original) (quoting Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 8

(Iowa 2004)). Plaintiffs who challenge a statute under the rational basis test bear

“a heavy burden” to show that the state’s action is unconstitutional. Racing Ass’n

of Cent. Iowa, 675 N.W.2d at 8. The state “is not required or expected to produce

evidence to justify its legislative action.” Ames Rental Prop. Ass’n v. City of Ames,

736 N.W.2d 255, 259 (Iowa 2007). A court need only find a “realistically

conceivable” basis for the statute advancing a legitimate state interest.

McQuistion v. City of Clinton, 872 N.W.2d 817, 831–32 (Iowa 2015). And that

basis need not be supported by evidence in the traditional sense:

“[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record.

Baker v. City of Iowa City, 867 N.W.2d 44, 57–58 (Iowa 2015) (alterations in

original) (quoting Heller v. Doe by Doe, 509 U.S. 312, 319–21 (1993)). Contrary

to the view expressed by the dissent, respect for and preservation of prenatal life

at all stages of development is a legitimate state interest. See Moore, 25 Iowa at

135–36.

Rather than directing the district court to apply our well-established

rational basis test, a plurality of this court directs the district court to apply the

undue burden test. Yet even as to the application of the undue burden test my

colleagues inject uncertainty, stating that although Casey’s undue burden test

as applied in PPH I provides the governing standard, “the legal standard may also

be litigated further.” But it’s our duty to decide and declare the applicable law in 75

state constitutional matters. See State v. Ochoa, 792 N.W.2d 260, 267 (Iowa

2010) (stating that “a state supreme court cannot delegate to any other court the

power to engage in authoritative constitutional interpretation under the state

constitution”). It’s our function to decide the constitutional standard necessary

for the resolution of this case on remand. See Nehring v. Smith, 49 N.W.2d 831,

837 (Iowa 1952). “Litigants,” we have said, “should not unnecessarily be put to

the expense and delay of two appeals to ascertain our view upon a vital issue.”

Id.

The plurality’s undue-burden-subject-to-further-litigation test to be

applied on remand leaves many questions unanswered. For instance, will the

State need to make an extensive evidentiary showing that the statute places a

“due” measure of burden on abortion to prevail? Will the plaintiffs, conversely,

need to make an extensive evidentiary showing that the statute’s waiting

period crosses some unfixed threshold into the realm of “undue”? These

evidentiary-burden questions are answered—definitively—with a remand to

apply the rational basis test, under which the plaintiffs would need to prove that

the law doesn’t serve any conceivable legitimate state interest or isn’t a

reasonable way to advance that interest.

Overruling a precedent always introduces some confusion. But we only

magnify that confusion by requiring the district court to apply a nebulous test

that practically demands that judges read in their own views instead of applying

a time-tested standard with doctrinal stability as we find with the rational basis

test. Even the most well-intentioned judge attempting to apply the undue burden 76

standard will not be able to overcome “the underlying fact that the concept has

no principled or coherent legal basis.” Casey, 505 U.S. at 987 (Scalia, J.,

dissenting). As a constitutional test, it generates answers so subjective as to

make Hermann Rorschach envious, presenting not so much an exercise in

constitutional interpretation as imagination.

I thus respectfully dissent from those parts of the opinion ordering the

application of an undue burden standard (or that the standard be further

litigated) and would remand the case for further proceedings only after having

made clear that the constitutional test to be applied is rational basis review.

McDonald, J., joins this concurrence in part and dissent in part. 77

#21–0856, Planned Parenthood of the Heartland, Inc. v. Reynolds

CHRISTENSEN, Chief Justice (concurring in part and dissenting in part).

“[The doctrine of] stare decisis can fairly be characterized as the workhorse

of constitutional decisionmaking. The doctrine has its greatest bite, however,

when it constrains a justice from deciding a case the way she otherwise would.”

Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev.

1711, 1714 (2013) (footnote omitted) [hereinafter Coney Barrett]. That is the

decision that our court faces today.

I join the majority’s holdings that the challenged legislation does not

violate the single-subject rule and that issue preclusion does not prevent our

court from reviewing this case. Out of respect for stare decisis, I cannot join the

majority’s decision to overrule Planned Parenthood of the Heartland v. Reynolds

(PPH II), 915 N.W.2d 206 (Iowa 2018), because I do not believe any special

justification “over and above the [majority’s] belief ‘that the precedent was

wrongly decided’ ” warrants such a swift departure from the court’s 2018

decision. Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455–56 (2015) (quoting

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).

I. Stare Decisis in Constitutional Cases.

“Stare decisis—in English, the idea that today’s Court should stand by

yesterday’s decisions—is ‘a foundation stone of the rule of law.’ ” Id. at 455

(emphasis omitted) (quoting Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,

798 (2014)). “From the very beginnings of this court, we have guarded the

venerable doctrine of stare decisis and required the highest possible showing 78

that a precedent should be overruled before taking such a step.” Brewer-Strong

v. HNI Corp., 913 N.W.2d 235, 249 (Iowa 2018) (quoting McElroy v. State,

703 N.W.2d 385, 394 (Iowa 2005)). Although it is not unyielding, stare decisis

effectively operates as the default course in judicial decision-making “because it

promotes the evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.” Janus v. Am. Fed’n of State, Cnty.,

& Mun. Emps., Council 31, 138 S. Ct. 2448, 2478 (2018) (quoting Payne v.

Tennessee, 501 U.S. 808, 827 (1991)); see also State v. Brown, 930 N.W.2d 840,

854 (Iowa 2019) (discussing the importance of stare decisis). It is also vital to

“maintaining public faith in the judiciary as a source of impersonal and reasoned

judgments.” Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970).

The legitimacy of judicial review hinges in part on the public perception

that we are applying the rule of law regardless of our personal preferences

instead of merely engaging in judicial policymaking. “If courts are viewed as

unbound by precedent, and the law as no more than what the last Court said,

considerable efforts would be expended to get control of such an

institution—with judicial independence and public confidence greatly

weakened.” Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication,

88 Colum. L. Rev. 723, 753 (1988). Ultimately, stare decisis is “no doctrine at

all” if we ignore precedent simply because we disapprove of it on the merits.

Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring in

part and concurring in judgment). 79

Since 2018, the makeup of our court has significantly changed with the

appointment of four new justices to replace outgoing justices. Coincidentally, all

four outgoing justices were part of the 5–2 majority that recognized a

fundamental right to decide whether to continue or terminate a pregnancy in the

2018 case, which the State asks us to overrule just four years later. See generally

PPH II, 915 N.W.2d 206. Of the three justices who remain on our court from that

2018 decision, two dissented and only one joined the majority in PPH II. Id. at

246 (Mansfield, J., dissenting, joined by Waterman, J.).

This rather sudden change in a significant portion of our court’s

composition is exactly the sort of situation that challenges so many of the values

that stare decisis promotes concerning stability in the law, judicial restraint, the

public’s faith in the judiciary, and the legitimacy of judicial review. As

then-Professor Amy Coney Barrett proclaimed, stare decisis “serves as an

intertemporal referee, moderating any knee-jerk conviction of rightness by

forcing a current majority to advance a special justification for rejecting the

competing methodology of its predecessor.” Coney Barrett, 91 Tex. L. Rev. at

1723. This is not to say that we may never overrule precedent that is clearly

incorrect because we are worried about the public’s perception of our decision

in relation to the change in our court’s makeup. See Miller v. Westfield Ins.,

606 N.W.2d 301, 306 (Iowa 2000) (en banc) (“[S]tare decisis does not prevent the

court from reconsidering, repairing, correcting or abandoning past judicial

announcements when error is manifest . . . .”). In fact, just last term, we

overturned this court’s 2017 holding that article I, section 8 of the Iowa 80

Constitution required a search warrant for a breathalyzer test of an intoxicated

boater because the 2017 decision was “manifestly erroneous.” State v. Kilby,

961 N.W.2d 374, 378 (Iowa 2021) (overruling State v. Pettijohn, 899 N.W.2d 1

(Iowa 2017)).

“[T]he Court’s power to overrule is vital for maintaining constitutionalism

by correcting mistakes and updating the law” and is also “essential to the

constitutional system’s continuing legitimacy.” Steven J. Burton, The Conflict

Between Stare Decisis and Overruling in Constitutional Adjudication, 35 Cardozo

L. Rev. 1687, 1697 (2014). But we must only use this power when there is a

“ ‘special justification’[ ]over and above the belief ‘that the precedent was wrongly

decided.’ ” Kimble, 576 U.S. at 455–56 (quoting Halliburton Co., 573 U.S. at 266);

see also Book v. Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015)

(“Stare decisis alone dictates continued adherence to our precedent absent a

compelling reason to change the law.”). That special justification existed last

term when we decided in Kilby to overrule Pettijohn. See Kilby, 961 N.W.2d at

378–83. I cannot yet say the same in this case.

Two members of today’s majority dissented in PPH II. See PPH II,

915 N.W.2d at 246. They believed PPH II was wrongly decided then, and little has

changed in the four years since PPH II. But the fact that little has changed in the

four years since PPH II is precisely why I cannot join the majority in holding

PPH II was so wrongly decided that we must already overrule it. In summary, I

believe it is too soon to conclude that the strict scrutiny standard established for

abortion challenges under the Iowa Constitution in 2018 “has proven to be 81

intolerable simply in defying practical workability” or that the facts or related

principles of law have so changed “as to have left the old rule no more than a

remnant of abandoned doctrine” or “to have robbed the old rule of significant

application or justification.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 854–55 (1992) (plurality opinion).

II. The Merits of Stare Decisis in this Case.

When we reexamine a prior holding, we analyze “a series of prudential and

pragmatic considerations designed to test the consistency of overruling a prior

decision with the ideal of the rule of law, and to gauge the respective costs of

reaffirming and overruling a prior case.” Id. at 854. These considerations include:

whether the rule has proven to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

Id. at 854–55 (citations omitted). The Supreme Court recently reiterated these

considerations in 2018 when it identified “the quality of [the opinion’s] reasoning,

the workability of the rule it established, its consistency with other related

decisions, developments since the decision was handed down, and reliance on

the decision” as relevant factors in deciding whether to overrule a prior decision.

Janus, 138 S. Ct. at 2478–79. While PPH II’s newness weighs in favor of

overruling it because it is not “subject to a kind of reliance that would lend a

special hardship to the consequences of overruling,” the considerations

cumulatively weigh in favor of adherence. Casey, 505 U.S. at 854. 82

The majority begins by questioning the workability of PPH II, reasoning the

strict scrutiny standard applied in PPH II is a virtually “impossible-to-meet”

standard because “[i]t is exceedingly difficult to tailor any regulation so it applies

only to those who would benefit from that specific regulation.” While that may

prove true, there has not been enough time to determine one way or the other

whether the standard is unworkable. This is our first opportunity to consider a

constitutional challenge to an abortion regulation since PPH II.

“Unworkability signals that a precedent cannot be logically applied, even

by those who agree with the substance of the original opinion,” not that a

precedent is substantively flawed. Mary Ziegler, Taming Unworkability Doctrine:

Rethinking Stare Decisis, 50 Ariz. St. L.J. 1215, 1254 (2018); see also Janus,

138 S. Ct. at 2481 (concluding the precedent in question was unworkable

because the precedent’s “line between chargeable and nonchargeable union

expenditures has proved to be impossible to draw with precision”); Kimble,

576 U.S. at 459 (holding challenged precedent had not proved unworkable

because “[t]he decision is simplicity itself to apply”). Notably, other state courts

have had no problem logically applying strict scrutiny to their review of abortion-

related regulations, including reviews of abortion waiting periods. See Valley

Hosp. Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997);

Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1254 (Fla. 2017); Hodes

& Nauser, MDs, P.A. v. Schmidt, 440 P.3d 461, 494, 502 (Kan. 2019) (per curiam);

Women of the State of Minn. ex rel. Doe v. Gomez, 542 N.W.2d 17, 31 (Minn.

1995); Armstrong v. State, 989 P.2d 364, 373–74, 384–85 (Mont. 1999). For 83

example, Florida has been applying strict scrutiny to abortion regulations since

1989 without undue difficulty in various cases. See Gainesville Woman

Care, LLC, 210 So. 3d at 1253–55 (discussing Florida’s history of cases applying

strict scrutiny to abortion regulations). Likewise, Montana has recognized the

fundamental right of “procreative autonomy,” which encompasses “a woman’s

moral right and moral responsibility to decide, up to the point of fetal viability,

what her pregnancy demands of her in the context of her individual values, her

beliefs as to the sanctity of life, and her personal situation” since 1999.

Armstrong, 989 P.2d at 377. In doing so, the Montana Supreme Court, too, held

that any legislation infringing on this right must meet strict scrutiny. Id. at 375

(explaining that the Montana Constitution’s right to procreative autonomy

requires the government to demonstrate a compelling state interest for infringing

upon that right).

Like those courts, our court proved capable of logically applying the strict

scrutiny standard to the 72-hour waiting period at issue in PPH II and nothing

suggests our district courts have struggled to apply PPH II. Strict scrutiny is an

exceedingly difficult standard to meet regardless of the fundamental right at

issue because it starts with the presumption that the challenged law is invalid.

Planned Parenthood of the Heartland, Inc. v. Reynolds (PPH III), 962 N.W.2d 37,

47–48 (Iowa 2021). Thus, the majority’s doubt about the workability of the

standard, because it is “exceedingly difficult” to meet in the abortion context,

speaks more to the majority’s view that abortion is not a fundamental right in

Iowa that can only be infringed upon by legislation that is narrowly tailored to 84

effectuate a compelling state interest than it does about the standard’s

workability.

Moreover, I cannot say that factual and legal developments in the four

years since PPH II have “left the old rule no more than a remnant of abandoned

doctrine” or “robbed the old rule of significant application or justification.”

Casey, 505 U.S. at 855. As I stated earlier, there has not even been a chance for

the central rule of PPH II to change because this is our very first opportunity to

apply it. Therefore, nothing has changed so significantly as to render the “rule

no more than a remnant of abandoned doctrine” or rob it of “significant

application.” Id. PPH II “is not the kind of doctrinal dinosaur or legal last-man-

standing for which we sometimes depart from stare decisis.” Kimble, 576 U.S. at

458 (emphasis omitted).

Admittedly, stare decisis is at its weakest in constitutional cases because

the only way to change constitutional precedent outside of the courts is through

a demanding constitutional amendment process. Coney Barrett, 91 Tex. L. Rev.

at 1713; see Payne, 501 U.S. at 828. Although the constitutional amendment

process is strenuous, it is not impossible. After the Tennessee Supreme Court

held that “a woman’s right to legally terminate her pregnancy is fundamental”

under the Tennessee Constitution and applied strict scrutiny to its review of an

abortion waiting period, the Tennessee legislature and voters superseded that

decision by a constitutional amendment in a comparable procedure to Iowa’s.

Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 16–17 (Tenn.

2000), superseded by constitutional amendment, Tenn. Const. art. I, § 36 85

(amended 2014), as recognized in Bristol Reg’l Women’s Ctr., P.C. v. Slatery,

7 F.4th 478, 482 (6th Cir. 2021) (en banc); see also Tenn. Const. art. XI, § 3

(describing the state constitutional amendment process in Tennessee).

Perhaps the most important reason not to overrule PPH II today is that the

Iowa legislature has already started the process to amend our state’s constitution

on this very issue by passing the following constitutional amendment: “[W]e the

people of the State of Iowa declare that this Constitution does not recognize,

grant, or secure a right to abortion or require the public funding of abortion.”

2021 Iowa Acts ch. 187, § 26. If the majority truly wants to leave this issue to

the will of the people, it should let the people have their say through the ongoing

constitutional amendment process. Both the house and senate approved that

amendment in 2021. Bill History for House Joint Resolution 5, The Iowa

Legislature (June 9, 2022), https://www.legis.iowa.gov/legislation/

billTracking/billHistory?billName=HJR%205&ga=89 [https://perma.cc/56Y2-

KEKZ]. Thus, the amendment will go into effect if both houses of the general

assembly that take office after the 2022 general election approve of it and the

voters of Iowa agree. See Iowa Const. art. X, § 1 (describing the process for

amending the Iowa Constitution). We should at least give our legislature and

Iowans the time and voice to go through the full amendment process before

rushing to overrule PPH II. This is especially so while we await the United States

Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization,

which could drastically alter the federal constitutional landscape. See 141 S. Ct.

2619 (2021) (granting certiorari). 86

“Legal authority must be respected; not because it is venerable with age,

but because it is important that courts, and lawyers and their clients, may know

what the law is and order their affairs accordingly.” Stuart v. Pilgrim, 74 N.W.2d

212, 216 (Iowa 1956). Today’s decision only injects more confusion into the

current labyrinth that is our state and federal abortion jurisprudence. By

overruling PPH II today, the standard governing our constitutional analysis of

abortion regulations under the Iowa Constitution at least temporarily reverts

back to the federal undue burden test that we applied in Planned Parenthood of

the Heartland, Inc. v. Iowa Board of Medicine (PPH I), 865 N.W.2d 252, 269 (Iowa

2015). Yet, there is no stability in that standard because the majority is also

remanding this case so that the parties on remand can advocate for their

standard of choice through the adversarial process. While I agree that this is the

better option than going where the parties do not ask us to go and deciding upon

a new standard today, it still leaves abortion providers, the legislature, and

lawyers and their clients in a state of confusion about the appropriate response

to today’s decision.

Current state and federal constitutional abortion jurisprudence is like a

game of Jenga, progressively becoming more unstable until it collapses. Before

today, the standard applied to our constitutional analysis of abortion regulations

was strict scrutiny. PPH II, 915 N.W.2d at 240–44. Now, the standard changes

back to the federal undue burden test only for so long as it takes for the parties

to go through the adversarial process and come before us again, when we may

once again decide upon a different standard. Add to this the potential change in 87

the federal constitutional landscape and the ongoing constitutional amendment

process, and Iowans are left with no stable state or federal abortion law. “People

must be able to order their affairs, and they cannot do so if a Supreme Court

case is a ‘restricted railroad ticket, good for this day and train only.’ ” Coney

Barrett, 91 Tex. L. Rev. at 1730 (quoting Smith v. Allwright, 321 U.S. 649, 669

(1944) (Roberts, J., dissenting)). Flawed as the majority believes PPH II to be, it

at least untethered Iowa from the vulnerable federal standard to provide some

sense of stability to Iowa’s abortion jurisprudence. See State Constitutional

Law—Abortion Law—Iowa Supreme Court Applies Strict Scrutiny to Abortion

Restriction, 132 Harv. L. Rev. 795, 799 (2018).

“[S]tare decisis requires us, absent special circumstances, to treat like

cases alike.” June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2134 (2020)

(Roberts, C.J., concurring in judgment) (emphasis omitted). In this case, it

requires us to examine the 24-hour waiting period at issue in the same way that

we examined the 72-hour waiting period at issue four years ago in PPH II by

applying strict scrutiny. The State asks us to overrule PPH II and apply a

standard other than strict scrutiny, but it never argues on appeal that the

24-hour waiting period survives strict scrutiny by being narrowly tailored to

further a compelling government interest. See PPH II, 915 N.W.2d at 233 (“ ‘If

government action implicates a fundamental right, we apply strict scrutiny’ and

determine whether the disputed action is ‘narrowly tailored to serve a compelling

government interest.’ ” (quoting Hensler v. City of Davenport, 790 N.W.2d 569, 88

580 (Iowa 2010))). Perhaps this is because the 24-hour waiting period fails strict

scrutiny for the same reasons the 72-hour waiting period failed in PPH II.

Specifically, the law sweeps too broadly to survive strict scrutiny. It

“indiscriminately subjects all women” to a delay in care and takes no steps “to

target patients who are uncertain when they present for their procedures but,

instead, imposes blanket hardships upon all women.” Id. at 243. It also fails to

“provide an exception for rural women who live far from health centers,” “rape or

incest victims,” or “victims of domestic violence or human trafficking.” Id.

Overall, the 24-hour waiting period is impermissibly broad to the same extent

the 72-hour waiting period was in 2018. Because “[s]tare decisis instructs us to

treat like cases alike,” the result in this case is controlled by our decision four

years ago in PPH II invalidating an extremely similar law. June Med. Servs. L.L.C.,

140 S. Ct. at 2141. For these reasons, I would not overrule PPH II, which would

necessarily result in my conclusion that the 24-hour waiting period at issue is

unconstitutional.

Appel, J., joins parts I–II of this opinion. 89

#21–0856, Planned Parenthood of the Heartland v. Reynolds

APPEL, Justice (dissenting).

“Liberty finds no refuge in a jurisprudence of doubt.”25 Yet, by rejecting

the holdings in a 5–2 majority decision in Planned Parenthood of the Heartland

v. Reynolds ex rel. State (Planned Parenthood II) decided only a few years ago in

a nearly identical issue,26 and punting the case back to the district court, the

court creates a jurisprudence of doubt about a liberty interest of the highest

possible importance to every Iowa woman of reproductive age.27

This jurisprudence of doubt is troublesome for three reasons. First, in

recent years, approximately one in four women of reproductive age have

exercised reproductive autonomy by choosing an abortion.28 This jurisprudence

of doubt will plainly impact many women and the men who support them.

Second, the weight and depth of a woman’s interest in reproductive autonomy

involved in this case is so profound. As noted by Chief Justice Cady in Planned

Parenthood II:

Autonomy and dominion over one’s body go to the very heart of what it means to be free. At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own

25Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992). 26PlannedParenthood of the Heartland v. Reynolds ex rel. State (Planned Parenthood II), 915 N.W.2d 206, 246 (Iowa 2018). 27Article I, section 9 of the Iowa Constitution provides that “no person shall be deprived

of life, liberty, or property, without due process of law.” 28Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008–2014, 107 Am. J. Pub. Health 1904, 1907 (2017) (estimating nearly one in four women in the United States (23.7%) will have an abortion by age 45). 90

identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty.29

Third, this jurisprudence of doubt is entirely avoidable. The decision in Planned

Parenthood II was dispositive when it was issued and should be dispositive today.

I would take a different path. For the reasons expressed below, I would

affirm the holding of Planned Parenthood II that a woman’s liberty interest in

reproductive autonomy is a fundamental right under article I, section 9 of the

Iowa Constitution; the State may regulate only upon a showing of compelling

state interest and only if the regulation is narrowly tailored to advance that

interest.30 Further, given the record presented, which is virtually the same as

the record in Planned Parenthood II, I would find the 24-hour waiting period fails

to pass constitutional muster under strict scrutiny review. But if we make the

unfortunate choice of abandoning strict scrutiny, I would replace it, as a least

harmful alternative, with an undue burden test “with teeth” to provide a woman’s

reproductive autonomy with as much constitutional protection as possible.

I recognize that I have written at length on these matters, but this case

poses an extraordinarily important issue for the women and men of this state.

29Planned Parenthood II, 915 N.W.2d at 237. 30Id. at 238. 91

I. Factual and Procedural Background.

A. Planned Parenthood I: Limited Health Benefits Outweighed by

Burdens of Increased Travel, Increased Costs, and Risks to Privacy.

1. Overview. In Planned Parenthood of the Heartland, Inc. v. Iowa Board of

Medicine (Planned Parenthood I),31 we considered the validity of rules

promulgated by the board of medicine related to medication abortions.32 The

rules required that before providing a medication abortion, a physician was

required to perform a pelvic examination.33 Additionally, when the abortion-

inducing drugs were provided to the patient, the physician was required to be

physically present.34 After the first abortion-inducing drug was provided, the

physician was required to schedule a follow-up appointment at the same

facility.35

Planned Parenthood attacked the rules as unconstitutional under the Iowa

Constitution.36 The board conceded that the Iowa Constitution provides for a

right to an abortion but asserted that the right was coextensive with that

available under the United States Constitution.37 Planned Parenthood argued38

for a strict scrutiny analysis under the Iowa Constitution over the less stringent

31PlannedParenthood of the Heartland, Inc. v. Iowa Bd. of Med. (Planned Parenthood I), 865 N.W.2d 252 (Iowa 2015). 32Id. at 255–61. 33Id. at 261. 34Id.

35Id.

36Id. at 261–62. 37Id. at 263. 38Id. at 254, 262 n.2. 92

“undue burden” test announced by the United States Supreme Court in Planned

Parenthood of Southeastern Pennsylvania v. Casey39 and Gonzales v. Carhart.40

We unanimously concluded that it was unnecessary to consider whether to adopt

a strict scrutiny test because even under the undue burden test, the board’s

regulations did not pass constitutional muster.41

2. Rejection of the less strict undue burden test. In discussing the federal

undue burden test, we stated that generally a challenger was required to show

the regulation had “the purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a nonviable fetus.”42 We also noted that

there were different versions of the undue burden test in the federal appellate

courts for regulations where the state’s interest was to protect the health of the

woman.43

A version of the undue burden test adopted in the United States Court of

Appeals for the Seventh and Ninth Circuits weighed the strength of the state’s

justification against the burdens on the woman to determine the undue burden

39Casey, 505 U.S. at 874. 40Planned Parenthood I, 865 N.W.2d at 254 (discussing Casey, 505 U.S. at 878–79, and

Gonzales v. Carhart, 550 U.S. 124, 146, 158 (2007)). 41Id. at 262–63. 42Id. at 263 (quoting Casey, 505 U.S. at 877). 43Id. at 264. 93

question.44 Under this approach, a relatively slight burden might outweigh a

relatively slight state interest.45

On the other hand, the cases from the Fifth and Sixth Circuits engaged in

a weaker version of the undue burden test, requiring only that the state set forth

a justification sufficient to pass rational basis review without focusing on the

strength of the state’s justification.46 Based on language in Casey, we adopted

the undue burden test of the Seventh and Ninth Circuits.47 Planned Parenthood I,

however, left open the possibility of applying strict scrutiny or even a different,

more stringent version of an undue burden test.

3. Recognizing the harm of two trips. In applying the stricter Casey test, we

noted that if the rule were put in effect, telemedicine services would end and that

women in Iowa would have to travel hundreds of miles to obtain an abortion.48

We also canvassed Planned Parenthood’s arguments that by requiring two visits

to the same clinic, the board’s rule “would cause a working mother to potentially

miss two to four days of work and incur additional childcare expense.”49

Additionally, requiring two trips would impose significant financial strain on low-

44Id. (“[T]he feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” (quoting Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013))) (citing Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 912–14 (9th Cir. 2014)). 45Id.

46Id. (citing Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d

583, 593–99 (5th Cir. 2014); Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 513– 18 (6th Cir. 2012)). 47Id. (holding that the “unnecessary health regulations” language in Casey requires the court to weigh the strength of the state’s justification against the burden placed on a woman). 48Id. at 267. 49Id. 94

income women, and to some, these costs could be “prohibitive.”50 We noted the

concern that the increased travel could cause additional burden to abused

women who want to seek an abortion privately and discretely.51 In the end, we

concluded that the board’s regulation showed “very limited health benefits” while

making it more challenging for many women who wished to exercise their

constitutional right to terminate a pregnancy.52

B. Planned Parenthood II: Requirement of Two Trips to the Clinic

Imposed by the 72-Hour Waiting Period Fails Strict Scrutiny.

1. Introduction. In Planned Parenthood II, we considered the validity of a

statute that restricted the exercise of the right to an abortion for a period of

seventy-two hours after the initial visit to the doctor.53 Planned Parenthood

challenged the validity of the statute as violating due process54 and equal

protection55 under the Iowa Constitution. Planned Parenthood further urged us

to depart from federal precedent, find that the right to an abortion is a

50Id.

51Id. (noting that Casey struck down a spousal notification requirement as it was “likely

to prevent a significant number of women from obtaining an abortion,” (quoting Casey, 505 U.S. at 887–98)). 52Id. at 268. 53The statute in Planned Parenthood II provided that an abortion patient be informed of a number of things at least seventy-two hours before the scheduled procedure. Specifically, the patient must obtain a certification that the woman was given the opportunity to view ultrasound images and to hear a description and heartbeat of the fetus. The statute further required that the woman be provided with information related to options available to her and risk factors associated with an abortion. The statute provided exceptions to certification where a physician determined that an abortion was necessary to save the life of a pregnant woman or in certain medical emergencies. See Planned Parenthood II, 915 N.W.2d at 220–21. 54Iowa Const. art. I, § 9; Planned Parenthood II, 915 N.W.2d at 213. 55Iowa Const. art. I, §§ 1, 6; Planned Parenthood II, 915 N.W.2d at 244. 95

fundamental right under the Iowa Constitution, and adopt the strict scrutiny

test.56 We agreed and concluded that the statute violated both the due process

clause and the equal protection clause of the Iowa Constitution.57

2. Summary of the factual record. The record showed that women of

reproductive age in Iowa had one of the most restrictive access to obstetrician

and gynecologist (OB/GYN) in the nation, having ranked forty-sixth at the time

of the filing and dropped to forty-ninth by the time the decision came down.58

“Sixty-six of Iowa’s ninety-nine counties [did] not have an OB/GYN.”59 Because

of the very limited availability of medical practitioners, Iowa women—and

particularly rural patients—often wait two to six weeks to see an obstetrician.60

The evidence also showed that poverty was a major factor in family

planning and abortion access.61 More than half of Planned Parenthood’s patients

live below 110% of the federal poverty line.62 Women at or near the poverty line

have higher rates of unintended pregnancy and abortions than the population

as a whole.63 Women need to pay not only for the cost of abortion services, but

also for the cost of “transportation, child care, lodging, and subsequent medical

56Planned Parenthood II, 915 N.W.2d at 232. 57Id. at 244–46. 58Id. at 218 & 218 n.2 (citing William F. Rayburn, The Obstetrician–Gynecologist

Workforce in the United States 54 (Am. Cong. of Obstetricians & Gynecologists 2017)). 59Id. at 218. 60Id.

61Id. at 218–19. 62Id.

63Id. at 219. 96

costs.”64 One study showed that the majority of women who sought an abortion

had already needed to “forego or delay food, rent, child care, or another essential

financial cost to pay for the procedure.”65 Now consider what the delay and

additional trips would add to the already onerous burden.66 In Iowa, because of

the lack of providers, 35% of all surgical patients and 25% of all medication

patients had to travel at least fifty miles to the clinic.67

The evidence established that women who are subject to reproductive

coercion face barriers to obtaining an abortion.68 Victims of domestic violence

must keep the pregnancy or the decision to terminate a secret from their

abusers, so women must manage and overcome hurdles to obtaining an abortion

as quickly as possible.69

The record in Planned Parenthood II also contained testimony and evidence

related to the impact of a 72-hour waiting period on women seeking an

abortion.70 Studies concluded that the waiting period had no effect on the

number of women who changed their minds about obtaining an abortion71 and

that the typical participant had an over 99% chance of reporting that the decision

64Id.

65Id.

66Id.

67Id.

68Id. at 220. 69Id.

70Id. at 222–25. Seven studies were offered that developed data related to the impact of mandatory delay laws on the decision of women to obtain an abortion. Id. at 222–24. 71Id. at 223. 97

to terminate her pregnancy was right for her at a follow-up interview.72 In

addition, three physicians testified to the effect that women who seek abortions

are firm in their decisions and patient uncertainty is very rare.73

As for travel, the record showed patients seeking an abortion were required

to make two trips to the abortion provider due to the 72-hour delay statute, one

for the preabortion certification and another for the procedure.74 Two trips to a

provider significantly increased the cost of obtaining an abortion, especially

when a poor patient without an automobile who traveled by public

transportation to the abortion clinic accumulated considerable loss of time and

expense.75 Most importantly, evidence established that the 72-hour delay in

some instances would prevent an abortion,76 a timely medication abortion,77

increase the medical risk,78 and harm domestic violence and assault victims by

making it more difficult to keep their abortion-related activities confidential.79

3. Merits of substantive due process. After canvassing the record, we held

that there was a substantive due process right under article I, section 9 of the

Iowa Constitution related to reproductive autonomy and the right to obtain

72Id. at 224. 73Id. at 224–25. 74Id. at 227. 75Id. at 228. 76Id. at 229. 77Id. at 230. 78Id. at 230–31. 79Id. at 231. 98

abortion services.80 In doing so, we emphasized that while history and tradition

can be important in considering whether a substantive due process right is

present, “[h]istory and tradition guide and discipline this inquiry but do not set

its outer boundaries.”81 We observed that foundational principles such as liberty

“were purposely left to gather meaning from experience.”82 We reaffirmed that

the Iowa Constitution “must have enough flexibility so as to be interpreted in

accordance with the public interest. This means [the Iowa Constitution] must

meet and be applied to new and changing conditions.”83 Our constitution, we

declared forty years ago, “is a living and vital instrument.”84

In Planned Parenthood II, we canvased a host of federal decisions finding

fundamental substantive due process rights that safeguard personal autonomy,

including the right to marriage,85 the right to procreate,86 the right to use

contraception,87 the right to family relationships,88 and the right to determine

the education of one’s child.89 We also found a similar line of Iowa cases

80Id. at 233–37. 81Id. at 233 (alteration in original) (quoting Obergefell v. Hodges, 576 U.S. 644, 664 (2015)). 82Id.at 235 (quoting Nat’l Mut. Ins. of D.C. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting)). 83Id.at 236 (quoting Pitcher v. Lakes Amusement Co., 236 N.W.2d 333, 335–36 (Iowa 1975) (en banc)). 84Id. (quoting In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977)). 85Id. at 234 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967)). 86Id. (citing Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). 87Id. (citing Griswold v. Connecticut, 381 U.S. 479, 485 (1965)). 88Id. (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). 89Id. (citing Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262

U.S. 390, 399 (1923)). 99

declaring, among other things, that “[t]he right to procreate is implied in the

concept of ordered liberty and qualifies for due process protection as a

fundamental right,”90 and that due process under the Iowa Constitution “exists

to prevent unwarranted governmental interferences with personal decisions in

life.”91 We found that fundamental liberty interest in familial relationship holds

a place for reproductive choices.92

We thereby declared that, “Autonomy and dominion over one’s body go to

the very heart of what it means to be free. At stake in this case is the right to

shape, for oneself, without unwarranted governmental intrusion, one’s own

identity, destiny, and place in the world.”93 We declared that under the Iowa

Constitution, “implicit in the concept of ordered liberty is the ability to decide

whether to continue or terminate a pregnancy.”94

4. Following Iowa precedent on strict scrutiny and rejecting the undue

burden test in federal law. We next considered the level of scrutiny proper for the

90Id. (quoting McQuistion v. City of Clinton, 872 N.W.2d 817, 832 (Iowa 2015)). 91Id. at 237 (quoting McQuistion, 872 N.W.2d at 832). 92Id. at 234. “[T]he familial relationship is a fundamental liberty interest . . . .” Id. (alteration in original) (quoting State v. Seering, 701 N.W.2d 655, 663 (Iowa 2005), superseded by statute as stated in Planned Parenthood of the Heartland, Inc. v. Reynolds, 962 N.W.2d 37 (Iowa 2021)). “We have repeatedly found fundamental interests in family and parenting circumstances.” Id. (quoting Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) (en banc)). 93Id. at 237. 94Id. 100

fundamental right to abortion.95 We noted it was well settled in Iowa that “[i]f a

fundamental right is implicated, we apply strict scrutiny.”96

We noted, however, that Casey relaxed the demanding approach in Roe v.

Wade,97 claiming that it had “undervalue[d] the State’s interest in potential

life.”98 Under Casey, a state may enact a previability abortion restriction “in

furtherance of its interest in promoting potential life” but “may not enact a

regulation that ‘has the purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a nonviable fetus.’ ”99 While some state

courts adopted the Casey undue burden test,100 others did not.101

After careful deliberation, we rejected the Casey test.102 We reasoned that

“[a] standard that only reviews the burdens of the regulation fails to guarantee

that the objective of the regulation is, in fact, being served and is inconsistent

with the protections afforded to fundamental rights.”103 We cited to Justice

95Id. at 237–41. 96Id. at 238 (alteration in original) (quoting Seering, 701 N.W.2d at 662). We further noted that “[s]ubstantive due process ‘forbids the government [from infringing] certain “fundamental” liberty interests at all, no matter what process is involved, unless the infringement is narrowly tailored to serve a compelling state interest.’ ” Id. (second alteration in original) (quoting Bowers v. Polk Cnty. Bd. of Supervisors, 638 N.W.2d 682, 694 (Iowa 2002)). 97Roe v. Wade, 410 U.S. 113 (1973). 98Planned Parenthood II, 915 N.W.2d at 238 (alteration in original) (quoting Casey, 505

U.S. at 873). 99Id. (quoting Casey, 505 U.S. at 877). 100Planned Parenthood II, 915 N.W.2d at 239. 101Id.

102Id. at 239–41. 103Id. at 240. 101

Antonin Scalia, criticizing that the “standardless nature”104 of the undue burden

test in Casey was so vague that it “place[s] all constitutional rights at risk.”105

We found the undue burden test provided “no real guidance and engenders no

expectation among the citizenry that governmental regulation of abortion will be

objective, evenhanded, or well-reasoned.”106

“Ultimately, adopting the undue burden standard would relegate the

individual rights of Iowa women to something less than fundamental”;107 we

concluded, “It would allow the legislature to intrude upon the profoundly

personal realms of family and reproductive autonomy, virtually unchecked, so

long as it stopped just short of requiring women to move heaven and earth.”108

As a result, we decided to apply the strict scrutiny framework to “fulfill our

obligation to act as a check on the powers of the legislature and ensure state

actions are targeted specifically and narrowly to achieve their compelling

ends.”109

104Id.(quoting Casey, 505 U.S. at 992 (Scalia, J., concurring in the judgment in part and dissenting in part)). The inherently standardless nature of this inquiry invites the district judge to give effect to his personal preferences about abortion. By finding and relying upon the right facts, he can invalidate, it would seem, almost any abortion restriction that strikes him as “undue”—subject, of course, to the possibility of being reversed by a court of appeals or Supreme Court that is as unconstrained in reviewing his decision as he was in making it. Id. (citing Casey, 505 U.S. at 992). 105Id. at 240 (alteration in original) (quoting Casey, 505 U.S. at 988). 106Id. (quoting Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 17 (Tenn.

2000), superseded by constitutional amendment, Tenn. Const. art. I, § 36). 107Id.

108Id.

109Id. at 240–41. 102

5. Application of strict scrutiny under the Due Process Clause to the facts. It

is important to focus on what we characterized as the factual issue in the case:

“whether requiring all women to wait at least three days between the

informational and procedural appointments will impact patient decision-

making.”110

On this factual issue, we concluded that “an objective review of the

evidence shows that women do not change their decision to have an abortion

due to a waiting period.”111 We noted that even if the statute “did confer some

benefit to the State’s identified interest” in promoting life, “it sweeps with an

impermissibly broad brush.”112 We observed that the statute required delay

“regardless of the patient’s decisional certainty, income, distance from the clinic,

and status as a domestic violence or rape victim.”113 We therefore declared that

the statute “takes no care to target patients who are uncertain when they present

for their procedures but, instead, imposes blanket hardships upon all

women.”114

6. 72-Hour waiting period violated equal protection. Having determined that

the 72-hour waiting period violated article I, section 9 of the Iowa Constitution,

we considered the alternate claim of Planned Parenthood that the waiting period

110Id. at 241. 111Id.

112Id. at 243. 113Id.

114Id. 103

also violated equal protection under article I, section 1115 and section 6116 of the

Iowa Constitution. We concluded that it did.117

We observed that, “Profoundly linked to the liberty interest in reproductive

autonomy is the right of women to be equal participants in society.”118 We noted

that through much of our state and nation’s history, biological differences were

used to justify women’s subordinate position in society.119 And yet, “[a]utonomy

is the great equalizer.”120 Equality and liberty, we opined, were irretrievably

connected.121 We cautioned that “[l]aws that diminish women’s control over their

reproductive futures can have profound consequences for women.”122 With that

in mind, we concluded that the 72-hour waiting requirement violated equal

protection under the Iowa Constitution.123

C. Enactment of Iowa Code Section 146A (2021). After we decided

Planned Parenthood II, the Iowa Legislature responded by passing a virtually

identical measure that differed in one respect: instead of requiring a 72-hour

waiting period, the new legislation required a 24-hour waiting period.124

115Iowa Const. art. I, § 1 (the inalienable rights clause). 116Iowa Const. art. I, § 6 (the privileges and immunities clause). 117Planned Parenthood II, 915 N.W.2d at 244. 118Id. at 245. 119Id. at 244. 120Id. at 245 see also Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 383 (1985) [hereinafter Ginsburg]. 121Planned Parenthood II, 915 N.W.2d at 245. 122Id.

123Id.

124See 2020 Iowa Acts ch. 1110, § 2 (codified at Iowa Code § 146A.1 (2021)). 104

Obviously, the legislature sought to avoid our holding in Planned Parenthood II

by simply changing the length of the waiting period.

D. Proceedings in District Court. Planned Parenthood brought this

action in the Iowa district court challenging the statute as unconstitutional. It

raised a number of challenges, including a claim that the statute violated Iowa’s

single subject rule, that the prior decision in Planned Parenthood II had

preclusive effect, and that the statute violated substantive due process, equal

protection, and article I, section 1 of the Iowa Constitution.

Planned Parenthood moved for summary judgment, supported by a

substantial appendix that contained testimonies and affidavits from the Planned

Parenthood II litigation. In addition, Planned Parenthood offered additional

evidence into the record from experts and providers. The State filed a cross-

motion for summary judgment, arguing that as a matter of law, Planned

Parenthood’s single subject and issue preclusion claims failed.

The district court ruled in favor of Planned Parenthood on the single

subject and issue preclusion grounds. The State appealed.

II. Preliminary Questions.

A. Single Subject Claim Under Article III, Section 29. Planned

Parenthood attacks the combination of the 24-hour abortion waiting period with

a measure regulating the procedure for termination of life support for minors as

violating the single subject requirement of article III, section 29 of the Iowa 105

Constitution.125 It is undisputed that after languishing in the house of

representatives, the provision related to the 24-hour waiting period surfaced late

at night, on the next to the last day of the session. It emerged as an amendment

to an amendment of a bill related to withdrawal of life support from minors with

minimal opportunity for hearings and debate.126 The majority goes to great

length to suggest that COVID-related issues explain the procedure utilized in

this case. I found that discussion unpersuasive but that was beside the point.

Article III, section 29, is a relatively narrow provision that requires that all

bills enacted by the Iowa General Assembly have a “single subject.” The provision

may be designed to promote accountability and transparency, but it does not

vest this court with general police power to ensure that legislative leaders act

courteously, provide advance notice of potentially controversial measures, and

provide the public with a broad opportunity for input before legislation is

enacted.

Further, having examined the single subject caselaw, it is generally rather

unfavorable to the Planned Parenthood position. In some extreme examples this

court has intervened, for instance, when substantive matters are buried in a doe

editor’s bill. But, as outlined by the majority, we have permitted some fairly broad

titles as subjects for pretty diverse provisions. We have said that the single

125Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title. Iowa Const. art. III, § 29. 126Amendment H–8314 was proposed to amend House File 594. See H. Journal, 88th G.A., 1st Sess., at 758 (Iowa 2019). 106

subject rule should be “liberally construed,”127 that it is violated “only in extreme

cases” where the legislation is “clearly, plainly and palpably” unconstitutional,128

and that the legislation is upheld where the question is “fairly debatable.”129

I think our precedents may have been too forgiving. Those who wander the

routunda of our state capitol during the waning hours or days of a legislative

session may hear reference to “Frankenstein bills” containing a grab bag of

subjects that plainly push the boundaries of article III, section 29. As colorfully

noted in a case from Minnesota, the flouting of single subject provisions is a

“worm that was merely vexatious in the 19th century [but] has become a monster

eating the constitution in the 20th.”130

That said, the subject “medical procedures” is marginally sufficient under

our caselaw. It is, I suppose “fairly debatable” that the two provisions relate to a

common subject. Although I might disagree with the thrust of the cases, I accept

that stare decisis plays an important role here. So, reluctantly, I concur with the

majority on the single subject issue.

B. Issue Preclusion.

1. Positions of the parties. Planned Parenthood argues issue preclusion

applies because the current statute shares the same core features of the 72-hour

delay law in Planned Parenthood II. This court had previously determined that

127Long v. Bd. of Supervisors of Benton Cnty., 142 N.W.2d 378, 381 (Iowa 1966). 128UtilicorpUnited Inc. v. Iowa Utils. Bd., 570 N.W.2d 451, 454 (Iowa 1997) (en banc) (quoting State v. Mabry, 460 N.W.2d 472, 474 (Iowa 1990)). 129Mabry, 460 N.W.2d at 474. 130State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 784 (Minn. 1986) (en banc)

(Yetka, J., concurring specially). 107

mandatory delay laws do not change people’s minds.131 Further, this court found

that making multiple trips to a provider before having an abortion imposes a

range of medical, financial, emotional, and social burdens on them.132 On the

legal questions, Planned Parenthood notes that the 24-hour waiting period does

not sweep more narrowly than the 72-hour waiting period that “indiscriminately

subjects all women to an unjustified delay in care, regardless of the patient’s

decisional certainty.”133

The State responds that in order for issue preclusion to apply, the issues

must be “precisely the same.”134 The State notes that courts should be especially

warry of applying issue preclusion in constitutional adjudication.135 And,

according to the State, issue preclusion does not prevent a court with authority

from overruling a decision decided under the wrong legal standard.136 Because

of the passage of time, the State argues that the circumstances with respect to

abortion may have changed.

2. Discussion. I begin by examining the precise ruling of this court in

Planned Parenthood II. In that case, we made alternative holdings.

131Planned Parenthood II, 915 N.W.2d at 241 (“The imposition of a waiting period may have seemed like a sound means to accomplish the State’s purpose of promoting potential life, but as demonstrated by the evidence, the purpose is not advanced. Instead, an objective review of the evidence shows that women do not change their decision to have an abortion due to a waiting period.”). 132Id. at 242–43 (“[T]he burdens imposed on women by the waiting period are substantial, especially for women without financial means . . . will inevitably delay their procedure while assembling the resources needed to make two trips to a clinic.”). 133Id. at 243. 134See Est. of Leonard v. Swift, 656 N.W.2d 132, 147 (Iowa 2003). 135See Montana v. United States, 440 U.S. 147, 162–63 (1979). 136See id. at 161–62. 108

Our first holding was as follows:

Strict scrutiny requires state actions be narrowly tailored to further a compelling state interest. The overwhelming weight of the evidence demonstrates that requiring all women, regardless of decisional certainty, to wait at least seventy-two hours between appointments will not impact patient decision-making, nor will it result in a measurable number of women choosing to continue a pregnancy they otherwise would have terminated without the mandatory delay. The Act, therefore, does not, in fact, further any compelling state interest and cannot satisfy strict scrutiny.137

In the alternative, we held:

Even if the Act did confer some benefit to the State’s identified interest, it sweeps with an impermissibly broad brush. The Act’s mandatory delay indiscriminately subjects all women to an unjustified delay in care, regardless of the patient’s decisional certainty, income, distance from the clinic, and status as a domestic violence or rape victim. The Act takes no care to target patients who are uncertain when they present for their procedures but, instead, imposes blanket hardships upon all women.138

Our first holding depended upon a finding of fact, namely, that a 72-hour

delay did not have an impact on the decisions of women with respect to

abortion.139 That factual finding was necessary and essential to our first holding

in Planned Parenthood II, but not to the alternative holding, which rested on the

broad sweep of the statute.140 In my view, the critical issue, then, is whether

issue preclusion arises from what is only an alternate holding in a case.

137Planned Parenthood II, 915 N.W.2d at 243 (emphasis added). 138Id.

139Id. at 242–43. 140Id. at 243; see Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 104–07 (Iowa 2011) (holding that when an issue of fact or law has been previously litigated and resolved by final judgment, and the resolution is essential to the judgment, the determination becomes conclusive, regardless of whether it is on an identical or different claim). 109

Under the Restatement (Second) of Judgments section 27 comment i, facts

supporting an alternate “judgment is not conclusive with respect to either issue

standing alone.”141 But under Restatement (First) of Judgments section 68

comment n, issue preclusion does arise from alternate judgments.142 As far as I

can tell, this is an issue of first impression in Iowa. In Herrera v. Wyoming,

Justice Alito, in dissent, took the view that the Restatement (First) of Judgments

had the sounder view.143 I agree. I do not think the fact that the holdings in

Planned Parenthood II are expressed in the alternative is an obstacle to issue

preclusion if the elements are met.

The State claims that the factual issue in this case is different because of

the statutes involved. In Planned Parenthood II, the delay was 72 hours, while in

this case the mandatory delay is 24 hours. Obviously, there is a difference in the

statutes. But the difference in the statutes does not alter the nature or scope of

the finding of fact related to the impact of mandatory delay. The finding of fact is

that a 72-hour waiting period has no impact on abortion decisions. If so, it seems

to me that a delay of 24 hours is a lesser included fact that was determined in

Planned Parenthood II.

There is authority for the proposition that even if there is a lack of total

identity between the issues involved in two adjudications, the overlap may be so

141Restatement (Second) of Judgments § 27 cmt. i, at 259 (Am. L. Inst. 1982) [hereinafter Restatement (Second) of Judgments]. 142A judgment based on alternative grounds “is determinative on both grounds, although

either alone would have been sufficient to support the judgment.” Restatement (First) of Judgments § 68 cmt. n, at 307–08 (Am. L. Inst. 1942). 143Herrera v. Wyoming, 139 S. Ct. 1686, 1710 (2019) (Alito, J., dissenting). 110

substantial that preclusion is appropriate. According to the Restatement

(Second) of Judgments section 27 comment c,144 a number of factors should be

considered where there is a lack of total identity, including whether there is

substantial overlap between the evidence or argument, whether there is new

evidence available, and whether pretrial preparation or discovery would have

been different. Section 27 comment c notes that even where different times are

involved, the overlap can be substantial.145 Here, applying the factors of the

Restatement (Second), I would conclude that there is sufficient overlap to

preclude relitigation of the factual issues regarding the impact of a waiting period

on the exercise of abortion rights.

There is a potential issue of burden of proof. It may be argued that,

depending upon the outcome of the litigation, the burden of proof in this case

could shift to Planned Parenthood when the burden of proof in Planned

Parenthood II was carried by the state. But the standard of proof will not change

from, say preponderance of evidence to reasonable doubt. And in Planned

Parenthood II, the finding was based on “overwhelming evidence.” A mere shift in

the burden of proof would have no impact on the specific factual finding in

The State asserts that it is entitled to argue for a different legal standard

for determining the constitutionality of the 24-hour waiting period in this case.

On this point, I generally agree with the State and the majority that in this case

144Restatement (Second) of Judgments, § 27 cmt. c at 252–53. 145Id. 111

the constitutional issue may be revisited. If upon reexamination we adhered to

the strict scrutiny approach of Planned Parenthood II, as I think we should, then

preclusion might apply. But the majority, however, has ruled out strict scrutiny.

Because the majority has ruled out the legal test utilized in Planned

Parenthood II, the situation has changed. Now, even giving full effect to the

factual finding in Planned Parenthood II, it is possible that the State may be

entitled to prevail in this action. On remand, it is possible that the district court

will adopt a one-pronged, skinny version of the undue burden test that does not

require the State to show any benefit or advancement of state interests, but

instead only requires a showing that the regulation does not impose a

“substantial burden” on reproductive autonomy. If such is the case, the State

could prevail notwithstanding the unfavorable fact-finding in Planned

Parenthood II.

In sum, I would adhere to the strict scrutiny test and, if the strict scrutiny

test were to be applied, the State would be precluded from relitigating its

constitutional claim in this case. But, Planned Parenthood should be able to rely

on the adverse fact-finding regarding the failure of the mandatory delay statute

to further the state’s interest in the subsequent litigation before the district

court.

III. A Threshold Question of Substance: Application of Stare Decisis.

I join parts I and II of Chief Justice Christensen’s compelling partial

dissenting opinion in this matter on the question of stare decisis and add only a

few brief words of my own. The general rule regarding stare decisis is that a prior 112

precedent is entitled to be given effect unless the prior decision has proved

“unworkable in practice, does violence to legal doctrine, or has been so

undermined by subsequent factual and legal developments that continued

adherence to the precedent is no longer tenable.”146 None of these criteria are

present here.

It is true, of course, that the United States Supreme Court is now on the

verge of dramatically undercutting—if not overturning—Roe, notwithstanding

fifty years of precedent.147 Our judgment of contested issues under the Iowa

Constitution, however, is independent of that of the United States Supreme

Court.148 While the new majority of United States Supreme Court is on the verge

of overturning Roe, it will likely do so based upon legal doctrine that we

specifically rejected in Planned Parenthood II. Further, the current majority on

the United States Supreme Court is generally inclined to expand government

power at the expense of individual liberties. We should not permit a federal court

decision to be a thumb on the scale when we independently interpret Iowa law.149

Finally, another factor supporting stare decisis here is the fact that

amending the Iowa Constitution is not nearly as arduous a process as amending

the Federal Constitution. One of the reasons for a weaker doctrine of stare decisis

146Youngblut v. Youngblut, 945 N.W.2d 25, 44 (Iowa 2020) (McDonald, J., dissenting). 147Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (mem.) (granting certiorari). 148State v. Ochoa, 792 N.W.2d 260, 264–67 (Iowa 2010) (declining to take a lockstep

approach and affirming that a state supreme court cannot delegate to any other court the power to independently interpret its state constitution). 149Id. at 267; Callender, 591 N.W.2d at 187. 113

in federal constitutional law is the difficulty of obtaining a constitutional

amendment to overrule precedent. In Iowa, however, the process of

constitutional amendment is relatively simple and requires only the approval of

two separate sessions of the Iowa General Assembly to be put before the

voters.150 With the current unitary control of state government by a single party

aligned with prolife advocates, a constitutional amendment related to abortion

rights may soon appear on the ballot. A vote of the people approving a

constitutional amendment overruling Planned Parenthood II would have much

greater legitimacy than a rejection of stare decisis by this court of a 5–2 precedent

established only a few years ago.

In my view, there is clearly no basis for overturning Planned Parenthood II

based on stare decisis. And yet, even if we were to reexamine the issue, Chief

Justice Cady was right in Planned Parenthood II. Here is why.

IV. Overview of Development of the Federal Right to Reproductive Autonomy.

A. Introduction. Despite what some might suggest, Roe did not suddenly

emerge from the obscure primordial depths. Instead, it was a result of a steady

and logical progression of caselaw development, going as far back as the Magna

Carta.

B. Early Predecessors to Roe v. Wade: Unenumerated Fundamental

Interests About Private Matters. The substantive due process doctrine that

150Iowa Const. art. X, § 1. 114

provided the underpinning for Roe has a long heritage. Justices151 and

scholars152 have traced substantive due process back to the Magna Carta. It is

believed that the Due Process Clause of the Fifth Amendment to the United

States Constitution at the time of the drafting encompassed judicial recognition

that unenumerated substantive rights served to limit congressional power, and

the concept of due process posed substantive limitation on governments.153 Sir

Edward Coke considered the Magna Carta supreme, and as a statement

“declaratory of the principal grounds of the fundamental laws of England.”154 As

noted by Professor Gedicks, “One of the crucial stories behind substantive due

process is how [the] Magna Carta, the due process of law, and the common law

evolved into ‘fundamental’ or ‘higher law . . . .’ ”155 Gedicks also argued that the

151“Thus the guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in this country ‘become bulwarks also against arbitrary legislation.’ ” Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)); see Daniels v. Williams, 474 U.S. 327, 331 (1986) (citing the Magna Carta in connection with development of substantive due process). 152Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 594 (2009) [hereinafter Gedicks] (“The concept of due process as a substantive limitation on government originated in thirteenth-century England with the ‘law of the land’ clause of [the] Magna Carta.”). Chapter 29 of the Magna Carta provides: N[o] freeman shall be taken or imprisoned or disseised of any freehold, or liberties, or free customs, or outlawed, or banished, or in any other way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny, or delay right or justice. William C. Koch, Jr., Reopening Tennessee’s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 356 (1996–1997) (quoting Magna Carta ch. 29 (1225)). 153Gedicks, 58 Emory L.J. at 594. 154Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American

Revolutionary Thought, 30 Stan. L. Rev. 843, 852 (1978) (quoting 2 Edward Coke, Institutes of the Laws of England, (1648)). 155Gedicks, 58 Emory L.J. at 598. 115

Declaration of Independence’s emphasis on natural rights was a direct refusal of

the notion of Parliament supremacy.156 The Declaration signaled the message:

The due process of law limited the actions of both the Crown and Parliament;

Britain’s violation of the higher law, therefore, justified revolution.157

Early cases of the United States Supreme Court and its Justices

recognized that there were limitations on government action that were not

explicitly spelled out in the United States Constitution. In Calder v. Bull, Justice

Chase noted that legislation “contrary to the great first principles of the social

compact, cannot be considered a rightful exercise of legislative authority.”158 In

Corfield v. Coryel, Circuit Justice Washington emphasized fundamental rights of

citizens including “the enjoyment of life and liberty.”159 Building on this tradition,

several cases of the United States Supreme Court illustrated the notion that

unenumerated rights—namely, rights not explicitly described with specificity—

may be protected under the generously phrased “liberty” clause of the United

States Constitution.160

In Meyer v. Nebraska, the United States Supreme Court considered the

validity of a Nebraska statute that prohibited the teaching of foreign languages

156Id. at 622–23. 157Id. at 623. 158Calder v. Bull, 3 U.S. 386, 388 (1798). 159Corfield v. Coryell, 6 F. Cas. 546, 551–52 (Cir. Ct. E.D. Pa. 1823) (No. 3,230). 160Union Pac. Ry. v. Botsford, 141 U.S. 250, 256–57 (1891) (recognizing personal privacy); see also Roe, 410 U.S. at 152–53 (listing fundamental rights recognized such as the right to marriage, procreation, contraception, family relations, child rearing and education). 116

in schools.161 The statute was enacted in 1919 in the aftermath of World War I

and targeted the teaching of German.162 The Meyer Court held that the statute

violated the “liberty” clause of the Fourteenth Amendment.163 The Court

emphasized that the term “liberty” included a wide variety of what some critics

today might consider unenumerated rights, including such rights not specifically

mentioned in the Constitution, such as the right to contract, to engage in

common occupations, to acquire useful knowledge, to marry, to establish a

house and bring up children, and to worship God according to the dictates of

conscience.164 Notably, the Court stated that liberty generally included those

privileges “recognized at common law as essential to the orderly pursuit of

happiness by free men.”165 There is, of course, no express textual statement of

these rights anywhere in the United States Constitution. But these rights fell

under the general rubric of “liberty” and were entitled to constitutional

protection.

Then, in Pierce v. Society of Sisters, the United States Supreme Court

considered the validity of a statute that required that parents send their children

to public schools.166 The Court held that statute invalid, noting the liberty

161Meyer, 262 U.S. at 396–97. 162Id. at 397; see also id. at 400, 402. 163Id. at 399–400. 164Id. (citing a series of federal cases). 165Id.

166Pierce, 268 U.S. at 529–30, 530 n.1. 117

parents have to direct the upbringing and education of their children.167 Again,

there is no specific textual mention of the right to bring up and educate children

in the United States Constitution, but the right was found to be protected under

the general term “liberty” used in the Fourteenth Amendment.168

Finally, in Skinner v. Oklahoma ex rel. Williamson, the United States

Supreme Court considered an equal protection challenge to an Oklahoma statute

that prohibited certain criminals from having children.169 The Court invalidated

the statute and emphasized that “[m]arriage and procreation are fundamental to

the very existence and survival of the race.”170 “Marriage and procreation” are

not explicit in the United States Constitution, and yet, they were found to be

within the scope of the open-textured phrase “liberty” and thus protected by the

Due Process Clause of the Fourteenth Amendment.

C. Poe v. Ullman: The Wisdom of the Great Judicial Conservative,

John Marshall Harlan. In Poe v. Ullman, the United States Supreme Court

declined to consider the merits of a statute prohibiting contraceptive use.171 In a

famous dissenting opinion, Justice Harlan outlined the contours of substantive

due process.172 Due process, Justice Harlan noted, is by no means a mere

167Id. at 535 (declaring that the “fundamental theory of liberty” excludes any general

power of the state and that rights guaranteed by the Constitution may not be abridged by legislative actions). 168Id.

169Skinner, 316 U.S. at 536. 170Id.at 541 (“We are dealing here with legislation which involves one of the basic civil rights of man.”). 171Poe, 367 U.S. at 499–502 (majority opinion). 172Id. at 522, 539–45 (Harlan, J., dissenting). 118

procedural safeguard; to reduce its significance to mere protection of a

procedural right would “fail to reach those situations where the deprivation of

life, liberty or property was accomplished by legislation which by operating in

the future could, given even the fairest possible procedure in application to

individuals, nevertheless destroy the enjoyment of all three.”173

“[T]he full scope of the liberty guaranteed by the Due Process Clause

cannot be found in or limited by the precise terms of the specific guarantees

elsewhere provided in the Constitution.”174 Within the liberty, Justice Harlan

concluded, lies the freedom from substantial arbitrary impositions on private

decisions, like the use of contraception.175

D. Griswold v. Connecticut: Unenumerated Fundamental Right in

Marriage Reaffirmed. The United States Supreme Court considered the validity

of a criminal statute regulating birth control in Griswold v. Connecticut.176 In the

opinion, Justice Douglas relied on a theory of unenumerated rights,177 noting

that the Court has endorsed rights that are not specifically mentioned in the

Constitution.178 Among these rights includes the penumbral rights of “privacy

and repose.”179 He reasoned that various provisions of the Bill of Rights have

173Id. at 541. 174Id. at 543. 175Id. at 539 (concluding that the statute criminalizing married couples using contraceptives was an “unjustifiable invasion of privacy”). 176Griswold, 381 U.S. at 480. 177Id. at 485 (recognizing that under the Constitution there are “penumbral rights”). 178Id.at 482–83 (citing Pierce, 268 U.S. 510; Meyer, 262 U.S. 390 and various free speech cases, including NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)). 179Id. at 485. 119

penumbras creating a “zone of privacy”180 worthy of constitutional protection,

within which lies the right to be free from the police “search[ing] the sacred

precincts of marital bedrooms for telltale signs of the use of contraceptives.”181

In a manner reminiscent of natural law that precedes the adoption of the United

States Constitution, Justice Douglas referred to a right of privacy “older than the

Bill of Rights.”182

Justice Goldberg, in a concurrence, linked privacy protection to liberty

protected by the Fourteenth Amendment.183 He recognized that the concept of

liberty protects those rights that are fundamental and extend beyond the specific

terms of the Bill of Rights.184 In addition, Justice Goldberg cited the Ninth

Amendment, which provides that “[t]he enumeration [of rights] in the

Constitution, of certain rights, shall not be construed to deny or disparage others

retained by the people.”185 “Although the Constitution does not speak in so many

words of the right of privacy in marriage, I cannot believe that it offers these

fundamental rights no protection.”186

180Id. at 484–85. 181Id. at 485. 182Id. at 486. 183Id. at 487 (Goldberg, J., concurring). 184Id. at 486 (“[T]he concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution . . . .” (footnote omitted)). 185Id. at 488 (quoting U.S. Const. amend. IX); see id. at 490–91 (emphasizing that while

the Ninth Amendment was rarely discussed, “[i]t cannot be presumed that any clause in the constitution is intended to be without effect,” quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803), and while some might regard the Ninth Amendment a “recent discovery,” it “has been a basic part of the Constitution which we are sworn to uphold” (alteration in original)). 186Id. at 495. 120

On standard of review, Justice Goldberg wrote that in a long series of cases

involving fundamental rights, the Court had held that the rights may not be

abridged merely upon “a showing that a regulatory statute has some rational

relationship to the effectuation of a proper state purpose.”187 Applying a strict

scrutiny test, Justice Goldberg concluded that the blanket ban on use of

contraceptives by married persons was not narrowly tailored to advance a

compelling state interest.188

Finally, Justice Harlan concurred in the result but rested his opinion on a

theory of substantive due process.189 According to Justice Harlan, a substantive

due process violation occurs when a statute violates basic values “implicit in the

concept of ordered liberty.”190

Justice White also affirmed that Meyer, Pierce, and Skinner had

established that marriage and family matters are among “the basic civil rights of

man.”191 Like Justice Goldberg, Justice White emphasized that statutes

regulating the privacy and association of the marriage relationship require “strict

scrutiny” review.192

E. Loving v. Virginia: Unanimous Holding that the Right to Marry Is

Protected by Substantive Due Process. In Loving v. Virginia, the United States

187Id. at 497. 188Id. at 497–98. 189Id. at 501 (Harlan, J., concurring in the judgement). 190Id.at 500 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled by Benton v. Maryland, 395 U.S. 784 (1969)). 191Id. at 503 (White, J., concurring in the judgement) (quoting Skinner, 316 U.S. at 541). 192Id. at 503–04 (quoting Skinner, 316 U.S. at 541). 121

Supreme Court considered the validity of a statute prohibiting interracial

marriage.193 Chief Justice Warren noted that, although nowhere mentioned in

the Constitution, marriage was “one of the ‘basic civil rights of man,’

fundamental to our very existence and survival,” and had “long been recognized

as one of the vital personal rights essential to the orderly pursuit of happiness

by free men.”194 There is no explicit right to marriage in the Constitution, yet the

opinion in Loving did not draw a single dissent.195 The Court was unanimous

apparently not only on the equal protection question but also on the question of

substantive due process that built on the doctrine of early cases like Skinner and

Justice Harlan’s dissent in Poe.

F. Eisenstadt v. Baird: Fundamental Right of the Decision to Bear a

Child Outside of Marriage. The United States Supreme Court again considered

the validity of a statute that prohibited a person from distributing contraceptives

to an unmarried person.196 Framing the question in terms of equal protection,

the Court held that the classifications in the statute failed even the least

stringent review.197 Specifically, “If the right of privacy means anything, it is the

193Loving,388 U.S. at 2. Although much of the opinion concentrates on equal protection, Chief Justice Warren also considered the substantive due process implications of the statute. 194Id. at 12 (quoting Skinner, 316 U.S. at 541). 195Aaron J. Shuler, From Immutable to Existential: Protecting Who We Are and Who We Want to Be with the “Equalerty” of the Substantive Due Process Clause, 12 J.L. & Soc. Challenges 220, 263 (2010) [hereinafter Shuler]. 196Eisenstadt v. Baird, 405 U.S. 438, 440–42 (1972). 197Id. at 454 (“If Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious.”). 122

right of the individual, married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally affecting a person as the

decision whether to bear or beget a child.”198

G. Stanley v. Illinois: Reproductive Choices and Child Rearing as

“Basic Civil Rights of Man.” In Stanley v. Illinois, the United States Supreme

Court considered a statute that declared that the children of unwed fathers

automatically became wards of the state upon the death of the mother.199 The

Court emphasized “[t]he rights to conceive and to raise one’s children have been

deemed ‘essential.’ ”200 Echoing Loving, these rights were “basic civil rights of

man.”201 The integrity of the family once again found protection under the

substantive due process rubric.202

H. Summary. Substantive due process has exceptional pedigree going

back to the Magna Carta. The notion of liberty interests protected by substantive

due process was a mainline development.203 It is sometimes claimed that there

is no specific language in the United States Constitution or in state constitutions

limiting the right to abortion. Sure enough, the term “abortion” does not appear

there. However, the right to reproductive autonomy should not be eviscerated by

narrow textualism. Decision after decision involving intimate spheres of life such

198Id. at 453 (citing Stanley v. Georgia, 394 U.S. 557 (1969)). 199Stanley v. Illinois, 405 U.S. 645, 646–48 (1972). 200Id. at 651 (quoting Meyer, 262 U.S. at 399). 201Id. (quoting Skinner, 316 U.S. at 541). 202Id. at 657. 203For an excellent summary of the cases which form a basis for this discussion, see Shuler, 12 J.L. & Soc. Challenges at 267–93. 123

as the decisions related to family, education of children, whether to beget

children, and whether to use contraception were found to be entitled to

substantive due process protection. The great judicial conservative of the Warren

years, Justice Harlan, embraced substantive due process in his famous dissent

in Poe. Prior to Roe, there was a rich body of caselaw for the court to draw upon

in considering application of substantive due process and privacy interests in

the context of reproductive autonomy.

V. Roe v. Wade and Its Immediate Progeny: Reproductive Autonomy Through Unenumerated Rights.

A. Roe v. Wade. In 1973, a 7–2 majority of the United States Supreme

Court decided the landmark case Roe v. Wade.204 In that case, the Court declared

a Texas criminal statute that made it a crime to “procure an abortion” violated a

woman’s right to privacy under the United States Constitution.205

In Roe, the Court relied on the right to privacy to invalidate the Texas

law.206 Roe recognized that the right to privacy is not expressly mentioned, but

noted that roots may be found in the First Amendment, Fourth Amendment,

Fifth Amendment, penumbras of the Bill of Rights, the Ninth Amendment, and

in the concept of liberty guaranteed by the Fourteenth Amendment.207 However,

whether found in the Fourteenth Amendment’s liberty interest or in the Ninth

204Roe, 410 U.S. at 113, 115. 205Id. at 117, 155, 166. 206Id. at 153–66. 207Id. at 152–53. 124

Amendment, Roe in no uncertain terms affirmed that the right to privacy is broad

enough to encompass a woman’s reproductive autonomy.208

With regard to history, the Roe Court canvassed federal and state court

cases considering the validity of anti-abortion statutes209 and concluded that

even though the results were divided, most courts agreed that the right to privacy

was broad enough to cover the right to decide whether to continue a

pregnancy.210 Yet, Roe recognized that the right was not absolute but may be

justified by a “compelling state interest,”211 which includes protecting the health

of the mother as well as the potential human life. Once the point of viability is

reached, the state may then enact regulation reasonably related to further the

compelling state interests.212 Although not stated explicitly, Roe established

strict scrutiny with respect to regulation of abortion prior to viability.

Justice Stewart wrote a concurring opinion213 that soon came to be widely

followed, if not cited, in abortion jurisprudence. Justice Stewart found the right

to abortion firmly anchored in “liberty” protected by the Fourteenth

Amendment.214 “In a Constitution for a free people, there can be no doubt that

the meaning of liberty must be broad indeed.”215 He cited a laundry list of cases

208Id. at 153. 209Id. at 154–56. 210Id. at 155. 211Id. at 155–56. 212Id. at 163–64. 213Id. at 167 (Stewart, J., concurring). 214Id. at 170. 215Id. at 168 (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972)). 125

where “specific right[s] of personal choice” were protected by the Constitution

without being explicitly named in the Bill of Rights.216

Justice Stewart quoted Justice Harlan at length:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points priced out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . .217

Again, Justice Stewart echoed the views of Justice Frankfurter:

Great concepts like . . . “liberty” . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.218

Justice Stewart noted that the court, through a long line of

well-established precedents, had made clear that “freedom of personal choice” in

“marriage and family life” is one of the liberty interests safeguard by the Due

Process Clause of the Fourteenth Amendment.219 This freedom of personal choice

certainly includes a woman’s choice to continue or terminate a pregnancy

because of the profound impact pregnancy and child-rearing would bring to

216Id.

217Id. at 169 (alteration in original) (quoting Poe, 367 U.S. at 543 (Harlan, J., dissenting)). 218Id. (omissions in original) (quoting Nat’l Mut. Ins., 337 U.S. at 646 (Frankfurter, J.,

dissenting)). 219Id. at 169–70 (noting Loving, Griswold, Meyer, Prince, Skinner, and Eisenstadt as

precedents). 126

her.220 The right asserted by Roe, therefore, was clearly within the personal

liberty protected by the Fourteenth Amendment.221

B. Post-Roe Substantive Due Process Developments.

1. Cleveland Board of Education v. Lafleur. In the 1974 case Cleveland

Board of Education v. Lafleur, the United States Supreme Court considered a

school board rule that required teachers to take unpaid maternity leave.222 Once

again, the Court cited Roe, Loving, Griswold, Pierce, Meyer, Prince v.

Massachusetts, and Skinner for the notion that choices with respect to personal

and family life are protected by substantive due process.223 The Court reaffirmed

the right “to be free from unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision whether to bear or beget a

child.”224 Substantive due process in the realm of family and child bearing

matters was alive and well in Cleveland Board of Education.225

220Certainlythe interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school or the right to teach a foreign language . . . . Id. at 170 (citations omitted) (quoting Abele v. Markle, 351 F. Supp. 224, 227 (D.C. Conn. 1972), judgment vacated by Markle v. Abele, 410 U.S. 951 (1973) (mem.)). 221Id.

222Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 632, 634 (1974). 223Id. at 640–41. 224Id. at 640 (quoting Eisenstadt, 405 U.S. at 453). 225Another case worth discussion is Zablocki v. Redhail, 434 U.S. 374 (1978). In Zablocki, the Court found invalid a Wisconsin statute that required persons with noncustodial children to show that they were financially supporting them before they could marry. Id. at 375–76. Justice Marshall wrote the opinion for the Court. Id. at 375. Much of the opinion rests on equal protection rather than substantive due process, but substantive due process was not ignored. Specifically, Justice Marshall noted that making personal decisions related to marriage must be left to the individual without government interference. Id. at 385. Further, the Court emphasized that while 127

2. Moore v. City of East Cleveland. In Moore v. City of East Cleveland, a city

zoning ordinance restricted use of certain dwellings to a narrowly defined “single

family.”226 The United States Supreme Court struck down the ordinance, as it

did repeatedly before and after Roe, reaffirming “freedom of personal choice in

matters of marriage and family life.”227 Once more, a cavalcade of the Court’s

substantive due process cases were cited.228 Importantly, the Court quoted

extensively from Justice Harlan’s embrace of substantive due process in Poe.229

3. Carey v. Population Services International.230 In a challenge to a

contraception statute regarding the use of contraception by minors, the United

States Supreme Court in Carey v. Population Services International underscored

the liberty “interest in independence in making certain kinds of important

decisions,”231 which includes procreation and “individual autonomy in matters

of childbearing.”232 The Court extended the protection of the use of contraception

the right to make decisions about marriage was fundamental, a state regulation that directly and substantially interfered with the right could survive only if the statute was narrowly tailored to further a compelling state interest. Id. at 385–86. 226Moore v. City of E. Cleveland, 431 U.S. 494, 495–96 (1977). Based on the ordinance, “family” did not include a mother living with her son and two grandsons. Id. In order to conform to the ordinance, the city directed Moore to expel one of her grandsons from her home. Id. She refused, was convicted of violating the ordinance, and appealed. See id. at 496. 227Id. at 499 (quoting LaFleur, 414 U.S. at 639–40). 228Id.

229See id. at 502; see also Shuler, 12 J.L. & Soc. Challenges at 273. 230Carey v. Population Servs. Int’l, 431 U.S. 678 (1977). 231Id. at 681, 684 (quoting Whalen v. Roe, 429 U.S. 589, 599–60 (1977)). 232Id. at 687. 128

and broadly characterized the protected right as “whether to bear or beget a

child.”233

4. Bowers v. Hardwick (overruled by Lawrence v. Texas). In a case running

counter to the prevailing trend, a majority of the United States Supreme Court

in Bowers v. Hardwick upheld a statute prohibiting “homosexual sodomy.”234

Justice White, writing for the majority, cited “tradition and history,”235 and

narrowly defined the protected right as the right to engage in homosexual sex,236

and ultimately found no fundamental right to engage in homosexual sodomy.237

Justice Blackmun dissented and, among other things, cited Justice

Holmes for the proposition

that “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”238

The traditional Judeo-Christian values, Justice Blackmun insisted, “cannot

provide an adequate justification.”239

233Id. at 686–87, 690–98 (quoting Eisenstadt, 405 U.S. at 453). 234Bowers v. Hardwick, 478 U.S. 186, 187–90 (1986), overruled by Lawrence v. Texas,

539 U.S. 558 (2003). 235Id. at 192–93. 236Id. at 190–91. 237Id. at 190–92, 196. 238Id. at 199 (Blackmun, J., dissenting) (second alteration in original) (quoting Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897)). 239Id. at 211. 129

Justice Stevens, joined by Justices Brennan and Marshall, also dissented.

Justice Stevens emphasized the prior precedent and the importance of the right

to make intimate personal decisions notwithstanding majority disapproval.240

But Bowers did not last. Seventeen years later, in Lawrence v. Texas, the

United States Supreme Court reversed Bowers.241 At the very beginning of the

opinion, Lawrence declared, “Liberty presumes an autonomy of self that includes

freedom of thought, belief, expression, and certain intimate conduct.”242 The

Court recognized that in substantive due process analysis, history and tradition

are the starting point—not the ending point.243 Additionally, the Court noted that

the historical terrain was complicated and that many statutes prohibiting private

homosexual conduct were not systematically enforced.244 The Court concluded

that Bowers was wrongly decided, approaching the issue from a broader

perspective of the caselaw that emphasized autonomy and personal liberty—

instead of being bound by historical practice.245

C. City of Akron: The Rejection of a 24-Hour Waiting Period Under

Strict Scrutiny of Roe. Ten years after Roe, the United States Supreme Court

in City of Akron v. Akron Center for Reproductive Health, Inc. considered the

240Id. at 216–18 (Stevens, J., dissenting). 241Lawrence, 539 U.S. at 564. 242Id. at 562. 243Id. at 567–68. 244Id. at 567–72. 245Id. at 578. 130

validity of an abortion statute that, among many things, required a 24-hour

waiting period before obtaining an abortion.246

The Court held the mandatory 24-hour delay unconstitutional.247 The

Court affirmed the right of privacy “grounded in the concept of personal liberty

guaranteed by the Constitution.”248 The Court acknowledged the many

challenges the mandatory waiting period brought, including the increased costs

for the two separate trips, prolonged delay due to scheduling conflicts, and

increased risk associated with the unnecessary delay.249 Ultimately, the Court

ruled that the city failed to show any legitimate state interest was furthered by

the waiting period, noting that whether to proceed with an abortion was an

important decision best left to the physician to exercise discretion.250

D. Summary. Roe and its progeny built on the well-developed caselaw

regarding the fundamental nature of personal autonomy and established that

within the autonomy lies the decision to beget a child. Although Roe invoked

many constitutional bases for its analysis, subsequent cases linked Roe to the

long line of traditional substantive due process cases. While Bowers was in

tension with this line of authority, it was soon overruled in Lawrence. Ten years

246City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 424 (1983), overruled by Casey, 505 U.S. 833 (majority opinion). 247Id. at 449–51. 248Id. at 419. 249Id. at 450. 250Id. (noting that under ethical standards of the profession, a physician will advise a

woman to defer the abortion when the physician thinks this will be beneficial to her). 131

after Roe, the United States Supreme Court struck down a 24-hour mandatory

delay rule in Akron as violating substantive due process.

VI. Planned Parenthood of Southeast Pennsylvania v. Casey and Beyond.

A. Planned Parenthood of Southeast Pennsylvania v. Casey:

Legitimacy Requires Upholding the “Essence” of Roe but Permits the

Slippery Slope of the “Undue Burden” Test. In Casey, the United States

Supreme Court considered the constitutionality of a Pennsylvania statute that,

among other things, required a woman give informed consent prior to an

abortion procedure.251

In an unusual configuration, the main opinion was a joint effort by Justice

O’Connor, Justice Kennedy, and Justice Souter.252 The plurality opinion noted

that nothing in Roe had been shown to be “unworkable.”253 The required

determinations under Roe “fall within judicial competence.”254

The plurality recognized the substantial reliance after two decades of

following Roe, and that “people have organized intimate relationships and made

choices that define their views of themselves and their places in society.”255

251Casey, 505 U.S. at 844. The statute required patients to wait at least 24-hours before the abortion is performed, the consent of one parent for a minor seeking an abortion, subject to judicial bypass, and that a married woman sign a statement indicating that she had notified her husband of her intent to obtain an abortion. Id. 252Id. at 843–44. 253Id. at 855. 254Id.

255Id. at 856. 132

Women were able to “participate equally in the economic and social life” because

Roe protected their “ability to control their reproductive lives.”256

The plurality revisited Roe after twenty years of application and

announced: “No evolution of legal principle has left Roe’s doctrinal footings

weaker than they were in 1973. No development of constitutional law since the

case was decided has implicitly or explicitly left Roe behind as a mere survivor

of obsolete constitutional thinking.”257 Roe’s underpinning, its central holding

recognizing the liberty interest on “whether to bear or beget a child” a

fundamental right endured and proven workable.258

Further, the plurality cautioned that overruling Roe would risk causing

both profound and unnecessary damage to the Court’s legitimacy and

commitment to the rule of law.259 Therefore, while Roe’s trimester framework was

replaced with the “undue burden” test,260 its essence was nevertheless adhered

to.261

256Id.

257Id. at 857; see id. at 861 (“Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips.”). 258Id. at 851, 857–61 (quoting Eisenstadt, 405 U.S. at 453) (noting that subsequent

constitutional development did not disturb or diminish the fundamental rights recognized in Roe, citing Carey, 431 U.S. 678, and Moore, 431 U.S. 494). 259Id. at 864–66. 260Id. at 873–74 (holding that the trimester framework for evaluation regulations was

flawed because the “formulation it misconceives the nature of the pregnant woman’s interest” and in practice “undervalues the State’s interest in potential life, as recognized in Roe”). 261Id. at 868–70. 133

The plurality rejected strict scrutiny review of abortion regulations in favor

of an undue burden standard.262 “[A]n undue burden is a shorthand for the

conclusion that a state regulation has the purpose or effect of placing a

substantial obstacle in the path of a woman seeking an abortion of a nonviable

fetus.”263

Three Justices264 considered a 24-hour waiting period valid under the

undue burden standard.265 They, however, expressed concern about the

operation of the 24-hour delay regulation in practice.266 Evidence showed that

the regulation would result in delay in obtaining the procedure,267 and that “for

those women who have the fewest financial resources, those who must travel

long distances, and those who have difficulty explaining their whereabouts to

husbands, employers, or others, the 24–hour waiting period will be ‘particularly

burdensome.’ ”268

There are several ways to interpret the amorphous undue burden test.

Among the plurality, three Justices accepted the possibility that the waiting

262Id. at 871–74. 263Id. at 877. 264Id. at 843–44 (Justice O’Connor, Justice Kennedy, and Justice Souter). 265Id. at 885; see id. at 885–901. They concluded that Akron was wrongly decided and

believed that requiring some period of reflection before a decision is made “does not strike us as unreasonable.” Id. at 874–75, 885 (distinguishing law that has “incidental effect” of making abortion more difficult or more expensive from imposing an undue burden on a women’s ability to procure abortion). 266Id.at 885–86 (admitting that it was “a closer question” whether the mandatory wait would be invalid in practice). 267Id.

268Id. at 886 (quoting Planned Parenthood of Se. Pa. v. Casey, 744 F. Supp. 1323, 1352

(1990), aff’d in part and rev’d in part, 505 U.S. 833). 134

period could have the effect of “increasing the cost and risk of delay of

abortions,”269 and these effects did not on its face amount to “substantial

obstacles.”270 In their mind, the state is permitted to enact persuasive measures

which favor childbirth over abortion.271 A burden would not be “undue” even if

the government does not advance any health benefits.272

Justice Stevens, on the other hand, believed a state-imposed burden

should be measured “both by its effects and by its character.”273 “A burden may

be [considered] ‘undue’ either because the burden is too severe or because it

lacks a legitimate, rational justification.”274 In his view, even applying the

plurality opinion’s undue burden test, the 24-hour waiting period was invalid.275

Justice Stevens noted that the district court findings established the severity of

the burdens that the 24-hour waiting period imposed on many women.276 Even

where the burden is “not especially onerous,” the burden is undue because

“there is no evidence that such a delay serves a useful and legitimate purpose.”277

Notably, Justice Stevens observed that there was no evidence mandatory delay

269Id. (quoting Casey, 744 F. Supp. at 1378). 270Id. at 887 (“A particular burden is not of necessity a substantial obstacle . . . in the

context of this facial challenge . . . .”). 271Id. at 886–87. 272Id. at 886. 273Id. at 920 (Stevens, J., concurring in part and dissenting in part). 274Id.

275Id. at 918, 922 (pointing out that the 24-hour waiting period arguably furthered the state’s interests in two ways, “neither of which is constitutionally permissible”). 276Id. at 920–21. 277Id. at 921. 135

benefited women or was necessary to allow physicians to properly inform the

patients.278 “The mandatory delay thus appears to rest on outmoded and

unacceptable assumptions about the decisionmaking capacity of women.”279

As part of the plurality, Justice Blackmun280 feared that all that remained

between upholding Roe and “the darkness” of reversal was a single vote.281 The

undue burden test, he noted, was far more manipulable than the trimester

framework.282 According to Justice Blackmun, “Strict scrutiny of state

limitations on reproductive choice still offers the most secure protection of the

woman’s right to make her own reproductive decisions, free from state

coercion.”283

Applying strict scrutiny to the 24-hour waiting period, Justice Blackmun

found the law invalid.284 He noted that the “especially significant burdens [fell]

on women living in rural areas and those women that have difficulty explaining

their whereabouts [to, for instance, abusers].”285 Justice Blackmun spoke

strongly against exclusively relying on tradition and ignoring the effects of

278Id. at 918. 279Id.

280Id. at 922 (Blackmun, J., concurring in part, concurring in the judgment in part, and

dissenting in part). 281Id.at 922–23 (foretelling “the darkness as four Justices anxiously await the single vote necessary to extinguish the light [of the liberty interest protected by Roe]”). 282Id. at 930. 283Id.

284Id. at 934. 285Id. at 937. 136

compelled childbirth and motherhood on the lives of women.286 “[T]he State’s

compelling interest in maternal health has less to do with health than it does

with compelling women to be maternal.”287 Finally, Justice Blackmun attacked

the rational basis test as “arbitrary and capricious.”288 He also noted that the

only example of a regulation that might fail the rational basis test would be to

criminalize abortion when it is actually necessary to protect the life of the

mother.289

On the newly minted undue burden test, the Chief Justice criticized it as

made “out of whole cloth” instead of a product of stare decisis.290 Moreover, the

standard was “not built to last.”291 He predicted that what amounted to a

“substantial obstacle” under the new test would be decided based upon

subjective determinations of the judge.292 Justice Scalia shared Chief Justice’s

sentiment. 293 He observed that “the standard is inherently manipulable and will

prove hopelessly unworkable in practice.”294 Justice Scalia ridiculed the undue

286Id. at 941. 287Id.

288Id. at 941–42. 289Id. at 942. 290Id. at 944, 964 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). On that point, Justice Blackmun noted that if “the undue burden test is made out of whole cloth,” as the Chief Justice contended, the “arbitrary and capricious” standard of the Chief Justice amounted to “new clothes.” Id. at 942 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). 291Id. at 964–65 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). 292Id. at 965. 293Id. at 987–92 (Scalia, J., concurring in the judgment in part and dissenting in part). 294Id. at 986. 137

burden test as permitting the state to pursue its interest in promoting fetal life

as long as those efforts are not “too successful.”295

B. Justice Scalia Was Right: Carhart, a Court Severed, Fractured, and

Splintered.

1. Introduction. In Stenberg v. Carhart, the United States Supreme Court

considered the validity of a Nebraska statute criminalizing what it called “partial

birth abortions.”296 The majority in Stenberg held that the statute failed to pass

constitutional muster,297 but the Court produced eight separate opinions on the

issue. But then, somewhat signaling the difficulty of applying the undue burden

test, only seven years later in Gonzales v. Carhart, a majority upheld a federal

statute that similarly regulated “partial birth” abortions.298

2. The eight opinions of Stenberg v. Carhart. In Stenberg, the Court was

divided over the right to abortion, differed on whether to apply an undue burden

test, and differed on the application of that test.299 Even among the Stenberg

majority, Justices had different views on what would make certain burdens

“due.”300 Justice O’Connor, for one, focused on the point that the statute was

not narrowly tailored, but signaled that one that had an exception for the health

of the mother might well survive constitutional muster.301 Justice Ginsberg

295Id. at 992. 296Stenberg v. Carhart, 530 U.S. 914, 920–22 (2000). 297Id. at 918–19, 922. 298Gonzales, 550 U.S. at 132, 140, 167–68. 299Stenberg, 530 U.S. 914. 300Id.

301Id. at 947–51 (O’Connor, J., concurring). 138

focused on the character of the Nebraska statute, stressing that its “purpose or

effect” failed the undue burden test.302 The struggle could be summarized by

what Justice Scalia had confessed, “[W]hat I consider to be an ‘undue burden’ is

different from what the majority considers to be an ‘undue burden’—a conclusion

that cannot be demonstrated true or false by factual inquiry or legal

reasoning.”303 And Justice Scalia was right.

3. Gonzales v. Carhart reversal. Following the United States Supreme

Court’s Stenberg holding, Congress responded by passing the Partial-Birth

Abortion Ban Act of 2003.304 Justice Kennedy, sitting in the majority, determined

that unlike the Nebraska statute in Stenberg, the federal statute did not impose

“undue burden” under Casey.305

Justice Ginsberg in dissent argued that the Stenberg majority held a

statute was unconstitutional in part because it lacked a health exception.306

Justice Ginsberg also canvassed the record regarding the health benefits of the

abortion procedure in question and concluded that there was ample evidence

that it had health benefits for some women.307 Relevant to our discussion,

302Id. at 951–52 (Ginsburg, J., concurring). 303Id. at 954 (Scalia, J., dissenting). 304Gonzales, 550 U.S. at 132–33 (citing 18 U.S.C. § 1531). 305Id. at 156–67. Readers of the Stenberg opinion might be surprised that on the same issue of the lack of exception of the statute, Justice Kennedy noted that “medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.” Id. at 161–64. 306Id. at 173–74 (Ginsburg J., dissenting). 307Id. at 174–76. 139

Justice Ginsberg attacked the majority for use of the “antiabortion shibboleth”

unsupported by reliable evidence that women come to regret their choices.308

C. Whole Woman’s Health and June Medical Services: Impact of

Abortion Restrictions on Rural Women. The United State Supreme Court

continued to grapple with the burden of the undue burden test in Whole

Woman’s Health v. Hellerstedt309 and June Medical Services L.L.C. v. Russo.310 In

these cases, the states of Louisiana and Texas imposed a requirement that (1)

every doctor performing an abortion have admitting privileges at a hospital

within thirty miles of where the abortions were performed, and (2) that an

abortion facility must meet the minimum standards adopted for ambulatory

surgical centers under state law.311

The Whole Woman’s Health Court credited the district court’s finding that

abortion was an extremely safe procedure and that, as a result, no health

problem could be “cured” by the statute.312 Further, the Court noted that the

requirement caused about half the abortion clinics to close.313 The extra driving

distance, “when viewed in light of the virtual absence of any health benefit[s],”

amounted to a “substantial obstacle to a woman’s choice.”314 “More

fundamentally,” the Court found the Texas law sought to force women “to travel

308Id. at 183–84. 309Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). 310June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020). 311Id. at 2112; Whole Woman’s Health, 136 S. Ct. 2292, 2300. 312Whole Woman’s Health, 136 S. Ct. at 2311–12. 313Id. at 2312. 314Id. at 2313 (quoting Casey, 505 U.S. at 895 (majority opinion)). 140

long distances to get abortions in crammed-to-capacity superfacilities” despite

there being no threat to women’s health to begin with.315

In June Medical Services, the Court, as in Whole Women’s Health, noticed

that the new requirement would make it hard for abortion providers to keep their

practice,316 which in turn would negatively impact on the abortion access.317

Similar to our concern noted in Planned Parenthood II,318 the June Medical

Services Court was also concerned about the burden resulting from the closure

of facilities would fall on “poor women, who are least able to absorb them.”319

The Court also rejected the state’s argument that the act would not burden

“every woman.”320 “As we stated in Casey, a State’s abortion-related law is

unconstitutional on its face if ‘it will operate as a substantial obstacle to a

woman’s choice to undergo an abortion’ in ‘a large fraction of the cases in which

[it] is relevant.’ ”321

There were bitter dissents in both Whole Women’s Health and June Medical

Services with members of the Court plainly differing on the application of the

315Id. at 2318. 316June Med. Servs., 140 S. Ct. at 2123–24. 317Id. at 2128–29. 318Planned Parenthood II, 915 N.W.2d 206. See the discussion on Iowa women’s limited

access to OB/GYN services and impacts of two trips on lower income or battered women at part I.B.2. 319June Med. Servs., 140 S. Ct. at 2130. 320Id. at 2132–33. 321Id. (alteration in original) (quoting Casey, 505 U.S. at 895). 141

Casey test. 322 A majority in June Medical Services was obtained only when Chief

Justice Roberts voted with the majority, who did so based on stare decisis.323

D. Summary. The above caselaw demonstrates several things. First, it is

clear that Roe has a sound doctrinal footing under the “liberty” clause of the

Fourteenth Amendment and, by implication, under the “liberty” clause of the

Iowa Constitution. To unravel Roe on the ground that there is no explicit

reference to abortion in the Constitution is to threaten to unravel the extensive

precedential network upon which Roe was based, certainly including Griswald

and Eisenstadt. Second, the effort to lessen the reach of Roe as the authors of

the joint opinion in Casey had hoped without eviscerating the right as Justice

Blackmun had feared has proved very difficult. The Casey undue burden test

has been subject to persistent attack by those opposed to reproductive autonomy

pretty much from day one. If the undue burden test is to have any significant

meaning, there must be some kind of spine built into it.

VII. Overview of Development of the Right to Reproductive Autonomy Under State Constitutions.

A. Introduction. Of the states that have considered the matter, eleven324

have found a right to abortion that requires application of strict scrutiny in

322See Whole Woman’s Health, 195 S. Ct. at 2321 (Thomas, J., dissenting), 2330 (Alito, J., dissenting); June Med. Servs., 140 S. Ct. at 2142 (Thomas, J., dissenting), 2153 (Alito, J., dissenting), at 2171 (Gorsuch, J., dissenting), 2182 (Kavanaugh, J., dissenting). 323June Med. Servs., 140 S. Ct. at 2133. Like Chief Justice Christensen in this case, Chief

Justice Roberts believed that the legitimacy of the Court required him to follow recent precedent. Id. at 2134–35 (Roberts, C.J., concurring in judgment). 324Statev. Planned Parenthood of Alaska, 171 P.3d 577, 582 (Alaska 2007); People v. Belous, 458 P.2d 194, 199–200 (Cal. 1969); Gainsville Woman Care, LLC v. State, 210 So. 3d 1243, 1246 (Fla. 2017); Hope Clinic for Women, Ltd. v. Flores, 991 N.E.2d 745, 765–66 (Ill. 2013); 142

reviewing state regulation of abortion (Alaska, California, Florida, Illinois, Iowa,

Kansas, Massachusetts, Minnesota, Montana, Tennessee,325 Washington), while

three states have found a right to abortion that subjects state regulation to some

kind of undue burden test.326 Only a few have declined to find a right to

abortion.327

B. California: Unenumerated Rights, History, and Recognizing the

Right to Reproductive Autonomy Before Roe v. Wade. Many people think the

United States Supreme Court was the first to recognize a constitutional right to

reproductive autonomy. Such an impression, however, would be incorrect. As is

often the case, a state court decision plowed the ground first. Prior to Roe, the

California Supreme Court held that a woman had a liberty interest in her right

to abortion in People v. Belous.328

In Belous, the California Supreme Court noted that the right to an abortion

followed from the caselaw of the United States Supreme Court as well as its own

Planned Parenthood II, 915 N.W.2d at 232; Hodes & Nauser v. Schmidt, 440 P.3d 461, 496 (Kan. 2019) (per curiam); Planned Parenthood League of Mass. v. Att’y Gen., 677 N.E.2d 101, 103–04 (Mass. 1997); Women of the State of Minn. v. Gomez, 542 N.W.2d 17, 31 (Minn. 1995) (en banc); Armstrong v. State, 989 P.2d 364, 375 (Mont. 1999); Sundquist, 38 S.W.3d at 17; State v. Koome, 530 P.2d 260, 265–66 (Wash. 1975) (en banc). 325Tennessee later passed a constitutional amendment that superseded the Sundquist

holding. See Tenn. Const. art. 1 § 36. 326Pro-ChoiceMiss. v. Fordice, 716 So. 2d 645, 655 (Miss. 1988) (en banc); Right to Choose v. Bryne, 450 A.2d 925, 934–35 (N.J. 1982); Preterm Cleveland v. Voinovich, 627 N.E.2d 570, 577 (Ohio Ct. App. 1993). 327See, e.g., Mahaffey v. Att’y Gen., 564 N.W.2d 104, 111 (Mich. Ct. App. 1997) (per curiam). 328Belous, 458 P.2d at 199–200, 206. 143

cases related to marriage, family, and sex.329 Further, it emphasized that while

the right to an abortion is not specifically enumerated in either the United States

Constitution or the California Constitution, it was no impediment to the

existence of the right.330 In support of unenumerated rights, the California

Supreme Court cited cases related to the right to vote,331 the right to travel,332

and the right to unsegregated schools.333

Notably, the Belous court addressed the role of historical practice reflected

in an 1850 anti-abortion statute.334 The Belous court noted that at the time,

“[s]urgeons did not know how to control infection[s]” and mortality rates from

abortion were high.335 But in modern times, the risk arose not from therapeutic

abortions performed by physicians but by abortions performed by untrained

persons.336 Thus, a statute originally designed to protect women became, in the

words of the California Supreme Court, “a scourge.”337 The Belous court noted

that perhaps the law was valid when first enacted, but changed circumstances

329Id.at 199–200 (citing Perez v. Lippold, 198 P.2d 17, 19 (Cal. 1948) (en banc); Custodio v. Bauer, 59 Cal. Rptr. 463, 472–73 (Ct. App. 1967)) (noting Griswold, Loving, Skinner, Pierce, Meyer as relevant Supreme Court cases). 330Id. at 200. Interestingly, the Belous court did not clearly establish the constitutional basis of reproductive autonomy in California. See also Comm. to Def. Reprod. Rts. v. Myers, 625 P.2d 779, 784–89 (Cal. 1981) (reaffirming Belous protections under the California Constitution).

331Belous, 458 P.2d at 200 (citing Carrington v. Rash, 380 U.S. 89, 96 (1965)). 332Id. (citing Kent v. Dulles, 357 U.S. 116, 125 (1958)). 333Id. (citing Bolling v. Sharpe, 347 U.S. 497, 500 (1954)). 334Id. at 200. 335Id.

336Id. at 200–01. 337Id. at 201. 144

raised questions today about the law’s validity.338 The Belous court observed,

“Constitutional concepts are not static. . . . Our United States Supreme Court

said, regarding the equal protection clause of the Fourteenth Amendment . . . .

Likewise, the Equal Protection Clause is not shackled to the political theory of a

particular era.”339

C. Tennessee: Right to Procreational Autonomy. The Tennessee

Supreme Court considered the validity of a statute requiring a 48-hour waiting

period and imposing criminal sanctions on physicians who fail to comply in

Planned Parenthood of Middle Tennessee v. Sundquist.340 The Sundquist court

determined that the right to an abortion was protected by a larger privacy

interest in “procreational autonomy.”341 It concluded that although abortion was

not specifically mentioned in the Tennessee Constitution, reproductive

autonomy was “inherent in our most basic concepts of liberty.”342 It also found

the procreational autonomy to be included in the various liberties protected by

the Tennessee Constitution’s Declaration of Rights, which was intended to

“reserve to the people various liberties and to protect the free exercise of those

liberties from governmental intrusion.”343

338Id. at 202. 339Id. (quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 669 (1966)). 340Sundquist, 38 S.W.3d at 3. 341Id. at 12–15. 342Id. at 12 (quoting Davis v. Davis, 842 S.W.2d 588, 601 (Tenn. 1992)). 343Id. 145

Declining to follow the federal undue burden test, the Sundquist court

adopted a more demanding strict scrutiny test as the proper standard of

review.344 According to the Sundquist court:

[T]he Casey test offers our judges no real guidance and engenders no expectation among the citizenry that governmental regulation of abortion will be objective, evenhanded, or well-reasoned. This Court finds no justification for exchanging the long established constitutional doctrine of strict scrutiny for a test, not yet ten years old and applicable to a single, narrow area of the law, that would relegate a fundamental right of the citizens of Tennessee to the personal caprice of an individual judge.345

The Sundquist court proceeded to consider the validity of a 24-hour waiting

period under Tennessee law.346 It recognized that while the United States

Supreme Court struck down a similar waiting period in Akron, it changed course

in Casey where, applying the undue burden test, the 24-hour waiting period

survived constitutional challenge.347 And yet, the Sundquist court found Akron

the more persuasive precedent.348 It cited with approval the trial court findings

that most women had seriously contemplated their decision before making their

appointment and that “[t]o mandate that she wait even longer insults the

intelligence and decision-making capabilities of a woman.”349 The Sundquist

court observed that “the waiting period increases a woman’s financial and

psychological burdens, since many women must travel long distances and be

344Id. at 17. 345Id.

346Id. at 18–25. 347Id. at 23. 348Id. at 23–24. 349Id. at 23. 146

absent from work to obtain an abortion.”350 It further found the two-trip

requirement “especially problematic for women who suffer from poverty or

abusive relationships.”351

The Sundquist court concluded that the waiting period failed strict

scrutiny.352 In the alternative, the Sundquist court found that even when

applying the undue burden test of Casey, the waiting period was

unconstitutional as it was not intended as a period of reflection but instead as

an obstacle to abortion.353

D. Kansas: Embracing Natural Rights in the Modern Context Requires

Rejection of the Undue Burden Test. The Kansas Supreme Court recently

considered whether there was a right to reproductive autonomy in Hodes &

Nauser v. Schmidt.354 Relying upon the declaration of rights provision of the

Kansas Constitution, it answered in the affirmative.355

The Hodes court forcefully emphasized the strength of the right to personal

autonomy: “[N]o right is held more sacred, or is more carefully guarded, by the

common law, than the right of every individual to the possession and control

of his own person.”356 The Hodes court cited the famous dissent of Justice

350Id. at 24. 351Id.

352Id.

353Id.

354Hodes & Nauser, 440 P.3d at 466. 355Id. at 483–91. 356Id. at 481 (quoting Botsford, 141 U.S. at 251). 147

Brandeis: “The makers of our Constitution . . . conferred, as against the

Government, the right to be let alone—the most comprehensive of rights and the

right most valued by civilized men.”357 Another case cited was Pratt v. Davis,

where an Illinois appellate court declared “under a free government at least, the

free citizen’s first and greatest right, which underlies all others—the right to the

inviolability of his person, in other words, his right to himself—is the subject of

universal acquiescence.”358 In short, the Hodes court found the right to personal

autonomy a right of the highest order.

The Hodes court also recognized that historically women were treated with

“paternalistic attitude” and a belief that women did not have the same rights as

men.359 It pointed out that historically, women did not have the right to vote,

could not serve on juries, and could not be admitted to the practice of law.360

But, the Kansas Supreme Court declared, “We no longer live in a world of

separate spheres for men and women. True equality of opportunity in the full

range of human endeavor is a Kansas constitutional value . . . .”361 As a result,

“rather than rely on historical prejudices in our analysis, we look to natural

357Id. at 481–82 (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), overruled by Katz v. United States, 389 U.S. 347 (1967)). 358Id. at 482 (quoting Pratt v. Davis, 118 Ill. App. 161, 166 (1905), aff’d 79 N.E.2d 562

(Ill. 1906)). 359Id. at 491. 360Id. at 490–91. 361Id. at 491. 148

rights and apply them equally to protect all individuals. Territorial and early state

statutes do not compel another result or rationale.”362

In considering individual liberties, the Hodes court noted that, as in Iowa,

the Kansas Bill of Rights begins with a declaration of rights, not an enumeration

of government power.363 “By this ordering, demonstrating the supremacy placed

on the rights of individuals, preservation of these natural rights is given

precedence over the establishment of government.”364

Having found a right to reproductive autonomy under the Kansas

Constitution, the Hodes court rejected the undue burden test of Casey because

“the undue burden standard has proven difficult to understand and apply.”365

Further, the Hodes court observed that the caselaw applying the Casey undue

burden test contained “shifting and conflicting pronouncements” that “leave the

exact contours of the undue burden test murky.”366 It agreed with our critique

that the undue burden test left judges to subjectively gauge the strength of the

interests involved.367 Noting that a majority of state courts applied strict scrutiny

in protection of the abortion right, the court believed strict scrutiny would best

protect its constitutional obligation and “the inalienable natural rights of all

Kansans today.”368

362Id.

363Id. at 491–92; see also Iowa Const. art. I, § 1. 364Hodes & Nauser, 440 P.3d at 492. 365Id. at 494. 366Id. at 495. 367Id. (citing Planned Parenthood II, 915 N.W.2d at 239). 368Id. at 496. 149

E. Minnesota: Fundamental Privacy Right Requires Strict Scrutiny.

The Minnesota Supreme Court reviewed the right to abortion in Women of the

State of Minnesota v. Gomez.369 The Gomez court noted that the right to privacy

was implicated in the rights and privileges clause, the due process clause, and

the search and seizure clause of the Minnesota Constitution.370 It found that the

“right [of privacy] begins with protecting the integrity of one’s own body and

includes the right not to have it altered or invaded without consent.”371 In

language very similar to what Chief Justice Cady said in Planned Parenthood II,

the Gomez court declared:

We can think of few decisions more intimate, personal, and profound than a woman’s decision between childbirth and abortion. Indeed, this decision is of such great import that it governs whether the woman will undergo extreme physical and psychological changes and whether she will create lifelong attachments and responsibilities.372

The Minnesota court emphasized that because the challenged provisions in the

case constituted an infringement on the fundamental right to privacy, the

statutes were subject to strict scrutiny.373

F. Alaska: “[F]ew Things are More Personal than a Woman’s Control of

Her Body.”374 The Alaska Supreme Court found a “fundamental right to

369Gomez, 542 N.W.2d 17. 370Id. at 26–27 (citing Minn. Const. art. I, §§ 2, 7, 10). 371Id. at 27 (alteration in original) (quoting Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn.

1988) (en banc)). 372Id.

373Id. at 31. 374Planned Parenthood of Alaska, 171 P.3d at 581 (quoting Valley Hosp. Ass’n v. Mat-Su

Coal. for Choice, 948 P.2d 963, 968 (Alaska 1997)). 150

reproductive choice” in the privacy provision of the Alaska Constitution.375 The

court stated that the right to privacy is broader under the Alaska Constitution

because privacy is explicitly mentioned.376 On the question of strict scrutiny, the

Alaska Supreme Court emphasized, “[F]ew things are more personal than a

woman’s control of her body, including the choice of whether and when to have

children . . . .”377

G. Summary. The state supreme courts have approached the question of

reproductive autonomy in a number of ways. However, it is clear that, by one

approach or another, a majority of states that have considered the matter have

affirmatively found a right to reproductive autonomy sufficiently broad to

support a right to an abortion. Further, the right to reproductive autonomy is

often found to be fundamental, and therefore government regulations impacting

the fundamental interests are subject to strict scrutiny. It is beyond dispute that

the approach of this court in Planned Parenthood II was not an outlier in the

developing state constitutional jurisprudence on reproductive autonomy.

VIII. The Right to Liberty Under the Due Process Clause of the Iowa Constitution Includes a Right to Reproductive Autonomy.

A. The Primacy of Rights Under the Iowa Constitution. At the threshold

of the Iowa Constitution is the Iowa Bill of Rights, signaling in no uncertain terms

that the protection of individual liberties is a primary purpose of the Iowa

375Id. at 582. 376Id. at 581 (citing Alaska Const. art. I, § 22). 377Id. at 581 (quoting Valley Hosp. Ass’n, 948 P.2d at 968). 151

Constitution.378 Although not addressed by the majority, the placement of the

Iowa Bill of Rights in the Iowa Constitution as the very first substantive article

is not happenstance.379 The very first topic addressed in our state constitution

is not to empower legislatures to compel the majority’s view of public policy;

instead, the very first article of the Iowa Constitution erects a fence against

legislative intrusion into the private sphere of the individual.

There is ample constitutional history to support the primacy of the Iowa

Bill of Rights in the Iowa Constitution. As noted by George W. Ells, the chair of

the committee drafting Iowa’s Bill of Rights:

[The Bill of Rights] will probably be read more by the people than any other clause in the Constitution, and therefore it should receive the consideration of this Convention to a greater degree than any other subject which may be discussed here. . . . I hold that the Bill of Rights is of more importance than all the other clauses in the Constitution put together, because it is the foundation and written security upon which the people rest their rights.380

Members of the committee were unanimous in their desire to have the Iowa

Bill of Rights “enlarge, and not curtail the rights of the people,” to ensure that

Iowans have “all the rights which freeman may enjoy under any charter of

liberty,” and “to put upon record every guarantee that could be legitimately

378See Donald P. Racheter, The Iowa Constitution: Rights over Mechanics, in The Constitutionalism of American States 479 (George E. Connor & Christopher W. Hammons eds., 2008). 379The Committee on the Bill of Rights at the Iowa Constitutional Convention of 1857

desired to have “the best and most clearly defined Bill of Rights.” 1 The Debates of the Constitutional Convention of the State of Iowa 100 (W. Blair Lord rep., 1857) [hereinafter The Debates]. 380Id. at 102–03. 152

placed there in order that Iowa . . . might . . . have the best and most clearly

defined Bill of Rights.”381

Unequivocally, Ells insisted that the safeguard of the Iowa Bill of Rights

was fundamental and the discussion of the rights of the people shall enjoy “the

utmost latitude.”382 This is so because “the history of the world teaches us the

absolute necessity of guarding well the rights of the people; for power is always

receding from the many to the few.”383 The Iowa Bill of Rights, Ells proclaimed,

“ought to . . . place the proper restrictions upon the powers of the Legislature.”384

According to Ells, “[The Iowa Bill of Rights] stands there in the beginning

like a sentinel guarding the gates of a city; and it is a warning to all who come

there that unless they give the sign-manuel, they cannot enter.”385 The very first

sentinel guarding against intrusive legislative actions is the inalienable rights

clause of the Iowa Constitution.386 Within the very first article of the Iowa

Constitution, the very first section emphasizes the inalienable rights of citizens

that simply cannot be trampled upon by majority action.387 It reads: “All men

and women are, by nature, free and equal, and have certain inalienable rights—

among which are those of enjoying and defending life and liberty, acquiring,

possessing and protecting property, and pursuing and obtaining safety and

381Id. at 100. 382See id. 383Id.

384Id. at 168. 385Id. at 168–69. 386Iowa Const. art. I, § 1. 387Id. 153

happiness.”388 According to one speaker at the constitutional convention, even

before an expansive amendment changing the word “independent” to “equal” in

article I, section 1,389 the provision “comprehends every thing that we can claim

by the laws of nature and Nature’s God.”390

The history and language ultimately adopted makes it crystal clear that

preserving for individuals the widest range of permissible individual choice is at

the heart of our constitutional scheme.391 The core rights of individuals are

“inalienable”—rights that are not subject to a trump played by a transient

legislative majority. And it is the courts that must enforce those rights, just as

they were designed to do. As one Iowa case declared, in a mild understatement,

“[T]he constitutional right to life and liberty and to acquire, possess, and enjoy

property is not a mere glittering generality without substance or meaning.”392

It has become fashionable, however, in some legal circles, to emphasize

deference to legislative action in all contexts. That, of course, is what the

parliamentary system is all about. And yet we do not have a parliamentary

system.393 While a polite curtsy may be made to article I of the Iowa Constitution,

individual liberties are rendered unenforceable by meaningless rational basis

388Id.

389The Debates, at 103. 390Id. at 104. 391See Hoover v. Iowa State Highway Comm’n, 222 N.W. 438, 439 (Iowa 1928) (“Appearing . . . at the very threshold of the Iowa Bill of Rights, [article I, section 1’s] constitutional safeguard is thereby emphasized and shown to be paramount.”). 392State v. Osborne, 154 N.W. 294, 300 (Iowa 1915). 393United States v. Gillock, 445 U.S. 360, 369 (1980) (distinguishing American federalism

from the English parliamentary system). 154

tests. The practical impact is an ever-increasing, steady march of increased

government power into the private lives of individuals. And this is precisely what

is at stake in this case.

While Planned Parenthood brought a claim in this litigation under article I,

section 1, it did not rely on this clause in its motion for summary judgment or

on appeal.394 Nonetheless, article I, section 1 provides the overarching

architecture for how liberty interests are to be handled by the courts. Specifically,

article I, section 1 embraces a Lockean theory of liberty which assigns a

fundamental role to individual decision-making and autonomy.395 The liberty

interest in reproductive autonomy established by article I, section 9 of the Iowa

Constitution must be interpreted in light of the general provisions of article I,

section 1.

B. Early Iowa Cases and Unenumerated Rights. The Iowa Supreme

Court historically has recognized that under the Iowa Constitution, there are

unenumerated rights. Indeed, article I, section 25 of the Iowa Constitution

provides, “This enumeration of rights shall not be construed to impair or deny

others, retained by the people.”396 More than a century ago in State ex rel.

Burlington & Missouri River Railroad Co. v. County of Wapello, we noted that the

object of article I, section 25 was “to bring these unenumerated rights retained

394Planned Parenthood did raise the issue in its motion for declaratory judgment and injunctive relief. 395See generally Jeffrey S. Koehlinger, Note, Substantive Due Process Analysis and the Lockean Liberal Tradition: Rethinking the Modern Privacy Cases, 65 Ind. L.J. Rev. 723 (1990). 396Iowa Const. art. I, § 25. 155

by the people, founded equally, it may be, upon natural justice and common

reason, as those that are specified within the censorship of courts of justice.”397

More recently, in May’s Drug Stores, Inc. v. State Tax Commission, we once again

recognized that article I, section 1 was designed to secure citizens’ preexisting

common law rights—sometimes known as natural rights—from unwarranted

government restrictions.398 These cases also drive any interpretation of

substantive due process under article I, section 9 of the Iowa Constitution.

C. A Woman’s Liberty Interest in Controlling Her Own Body and

Destiny is Protected by the Due Process Clause of the Iowa Constitution.

1. A woman has a liberty interest in reproductive autonomy. In Planned

Parenthood II, a 5–2 majority of this court determined that a woman has a

fundamental constitutional right to reproductive autonomy under the Iowa

Constitution.399 In my view, the conclusion that a woman has a fundamental

interest in reproductive autonomy is well-founded.

Our exploration of the issue in Planned Parenthood II was thorough and

persuasive. Citing Casey, we noted the decision to continue or end a pregnancy

is among “the most intimate and personal choices a person may make in a

lifetime” and is “central to personal dignity and autonomy.”400 We echoed the

observations of Casey, “The mother who carries a child to full term is subject to

397State ex rel. Burlington & Mo. River R.R. v. County of Wapello, 13 Iowa 388, 413 (1862).

See generally Louis Karl Bonham, Note, Unenumerated Rights Clauses in State Constitutions, 63 Tex, L. Rev. 1321 (1985). 398May’s Drug Stores, Inc. v. State Tax Comm’n, 45 N.W.2d 245, 250 (Iowa 1950). 399Planned Parenthood II, 915 N.W.2d at 234, 246. 400Id. at 236 (quoting Casey, 505 U.S. at 851). 156

anxieties, to physical constraints, to pain that only she must bear,”401 and, “[t]he

destiny of the woman must be shaped to a large extent on her own conception of

her spiritual imperatives and her place in society.”402

In light of the above, we solemnly stated:

Autonomy and dominion over one’s body go to the very heart of what it means to be free. At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty. We therefore hold, under the Iowa Constitution, that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy.403

Even the dissent in Planned Parenthood II agreed. According to the dissent,

no one can doubt that “[a]utonomy and dominion over one’s body go to the very

heart of what it means to be free.”404 But as pointed out by Planned Parenthood,

such autonomy and dominion would be invaded if the state were permitted to

compel a woman to continue a pregnancy and incur medical risk, emotional

harm, and life-changing alteration in her economic and domestic situation that

arises from an unwanted pregnancy.

2. Prior Iowa precedent provides a foundation. Our decision in Planned

Parenthood II was well-founded in decades of Iowa precedent. In State v. Pilcher,

we recognized that before the state could invade fundamental rights such as

401Id. at 236–37 (quoting Casey, 505 U.S. at 852). 402Id. at 237 (quoting Casey, 505 U.S. at 852). 403Id. at 237. 404Id. at 249 (Mansfield, J., dissenting) (alteration in original). 157

privacy, there must be a compelling necessity.405 In Sanchez v. State, we

canvassed federal caselaw and stated with approval that fundamental liberty

interests include “the rights to marry, to have children, to direct the education

and upbringing of one’s children, to marital privacy, to use contraception, to

bodily integrity, and to abortion.”406 In State v. Heemstra, we again approved the

proposition that an individual’s right of privacy is “a fundamental tenet of the

American legal tradition.”407 The same is true in State v. Seering, where we held

that if a fundamental right is implicated, the court applies strict scrutiny.408

3. The right to reproductive autonomy is rooted in substantive due process.

As the lengthy discussion of federal and state caselaw in parts V, VI, and VII of

this opinion demonstrates, the right to reproductive autonomy falls comfortably

within the “liberty” interests that over time have come to be protected under

Federal and State Constitutions. Recently, in McQuistion v. City of Clinton, we

noted that “the due process clause of our constitution exists to prevent

unwarranted governmental interferences with personal decisions in life.”409

Certainly, the ability of women to participate freely in society is dramatically

405State v. Pilcher, 242 N.W.2d 348, 359 (Iowa 1976) (en banc). 406Sanchez v. State, 692 N.W.2d 812, 820 (Iowa 2005) (quoting Washington v. Glucksberg,

521 U.S. 702, 720 (1997) (citations omitted)). 407State v. Heemstra, 721 N.W.2d 549, 561 (Iowa 2006) (quoting Jaffee v. Redmond, 51 F.3d 1346, 1355–56 (7th Cir. 1995)), superseded in part by statute, 2011 Iowa Acts ch. 8, § 2 (codified at Iowa Code section 622.10(4)(a)(2) (2013)), as recognized in State v. Leedom, 938 N.W.2d 177, 190 (Iowa 2020). 408Seering, 701 N.W.2d at 662. 409McQuistion, 872 N.W.2d at 832 (citing Hensler v. City of Davenport, 790 N.W.2d 569,

583 (Iowa 2010)). 158

affected by limitations on their reproductive choices.410 The notion that the Iowa

Constitution creates a zone of autonomy for women to make intensely personal

choices is not some radical theory but is well-established in state and federal

law.

IX. The Scope of Liberty Interests is Not Frozen by Historical Practice.

A. A Constitution Is Interpreted in the Present for the Present. Anti-

reproductive autonomy proponents often argue that fundamental rights are

limited to those that are deeply rooted in our nation’s “history and tradition.”411

Efforts to trace the scope of reproductive autonomy centuries ago could be

interesting, and yet, discovery of historical practice did not compel a result in

Planned Parenthood II and should not compel such a result today.

We have repeatedly affirmed that the Iowa Constitution is a “living and

vital instrument.”412 While we take historical matters into consideration, we bear

in mind “the evils sought to be avoided by the Constitution”413 and the intention

that our constitution should “endure for an extended future period.”414 Forty

410Casey, 505 U.S. at 856; Webster v. Reprod. Health Servs., 492 U.S. 490, 557 (1989)

(Blackmun, J., concurring in part and dissenting in part). 411Hensler, 790 N.W.2d at 581 (quoting Chavez v. Martinez, 538 U.S. 760, 775 (2003) (plurality opinion)). 412Redmond v. Carter, 247 N.W.2d 268, 275 (Iowa 1976) (en banc) (LeGrand, J., concurring specially); In re Johnson, 257 N.W.2d at 50; see Skiles, 591 N.W.2d at 190 (citing Carter, 247 N.W.2d at 273 (majority opinion)); see also United States v. Classic, 313 U.S. 299, 316 (1941) (“For in setting up an enduring framework of government [the framers] undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words . . . as the revelation of the great purposes which were intended to be achieved by the [Federal] Constitution as a continuing instrument of government.”). 413Gallarno v. Long, 243 N.W. 719, 723 (Iowa 1932). 414Edge v. Brice, 113 N.W.2d 755, 759 (Iowa 1962). 159

years ago, we overruled precedent and found a statute violated equal protection

of the law because the justification was “totally lacking in substance in today’s

circumstances” and declared that “the present has a right to govern itself.”415 We

recognized that this flexibility “is a source of [the constitution’s] strength,

longevity and vitality.”416 Again, twenty years ago in Callender v. Skiles, we

declared that substantive due process rights “should not ultimately hinge upon

whether the right sought to be recognized has been historically afforded. Our

constitution is not merely tied to tradition, but recognizes the changing nature

of society.”417 Further, we have declared that the purpose of the constitution “is

to endure for a long time and to meet conditions neither contemplated nor

foreseeable at the time of its adoption.”418 We have emphatically rejected the

attempt to restrict our inquiry of liberty interest to what happened in the distant

past; instead, we have decided “[i]n evaluating what process is due, we look to

the nature of the liberty interest involved.”419 For those who seek to impose

historical shackles on our constitutional interpretation, there is a lot of

inconsistent Iowa caselaw to confront.

415Millerv. Boone Cnty. Hosp., 394 N.W.2d 776, 780–81 (Iowa 1986) (en banc) (finding the statute in question violated equal protection despite prior precedent, noting that “the shift in reasoning ‘is an example of the continual reexamination of rationales and principles that is necessary in constitutional decisionmaking’ ” (quoting Hunter v. N. Mason High Sch., 539 P.2d 845, 851 (Wash. 1975) (en banc))). 416Id. (quoting Hunter, 539 P.2d at 851). 417Skiles, 591 N.W.2d at 190 (citing Redmond, 247 N.W.2d at 273). 418Inre Johnson, 257 N.W.2d at 50 (citing Redmond, 247 N.W.2d at 275 (LeGrand, J., concurring specially)). 419Skiles, 591 N.W.2d at 190. 160

B. Women were Excluded from Political Participation and Treated as

Second Class Citizens in the Early History of Iowa and the Nation. It makes

little sense to determine whether women have a fundamental right to

reproductive autonomy from the lens of the white males who fashioned the

United States and Iowa Constitutions. At the time of the drafting of the Iowa

Constitution, Iowa society—and society across the nation—was patriarchal in

nature.420 There were no women members of the Iowa constitutional conventions

and no women members of the legislature.421 Women were not trusted with the

right to vote, and, even when the franchise was extended to African-Americans

after the Civil War,422 the right to vote was not extended to women until decades

later.423 There were, of course, a few rare women who managed to enter the

learned professions, but women’s role in society was highly gendered and hardly

equal. So the men in the Iowa General Assembly enacted statutes related to

abortion, and the men reelected the representatives, and the men served on the

courts, while the women stayed home.

420“In 1857, the newly-ratified Iowa Constitution restricts the right to vote and to run for the Iowa General Assembly to white males over the age of 21.” See Iowa State Univ., Women’s Suffrage in Iowa [hereinafter Women’s Suffrage in Iowa], https://cattcenter.iastate.edu/ timeline/ [https://perma.cc/3Q8B-MZMD] (last visited June 14, 2022). When the Fourteenth Amendment was ratified, it clearly defined “citizens” and “voters” as male. Nat’l Women’s Hist. Museum, Timeline: Woman Suffrage Timeline (Apr. 12, 2018) [hereinafter Timeline: Woman Suffrage], https://www.womenshistory.org/exhibits/timeline-woman-suffrage [https://perma.cc/AG9W-2X68]. 421See Women’s Suffrage in Iowa. 422The Fifteenth Amendment to the United States Constitution was passed in 1870, giving

African-American males the right to vote. See Timeline: Woman Suffrage. 423The Senate passed the Nineteenth Amendment on June 4, 1919, and the Iowa

Legislature voted to ratify it on July 2, 1919. See Women’s Suffrage in Iowa. 161

No one can deny that the role of women in society was dramatically

different in the middle of the nineteenth century than it is today. The right to

autonomy and reproductive freedom should be evaluated based on the real

impact on women’s lives in today’s society, and their ability to lead an

autonomous life in today’s age. What is “fundamental” should not be based on

highly patriarchal attitudes that may have been endemic among the men when

the Iowa Constitution was adopted and when women were excluded from

participating in the political and economic life of the country. Does anyone really

think that the right to autonomy and reproductive freedom should be determined

by the views of 18th and 19th century men that solely controlled the political

process at the time?

C. Consequences of Rigid Historicism. If we were to adopt the view that

the only thing that mattered in the interpretation of open-textured,

constitutional provisions like due process was historical practice centuries ago,

the impact on American jurisprudence would be devastating.

Let’s look at its impact of civil rights. Because segregation in public schools

was practiced at the time of the Fourteenth Amendment, such segregation would

be constitutionally permitted today and Brown v. Board of Education424 would be

overruled. In fact, in Brown, parties argued extensively about what would be the

faithful reading of the Fourteenth Amendment to the United States Constitution

424Brown v. Bd. of Educ., 347 U.S. 483 (1954). 162

based on the post-war history.425 Chief Justice Warren did not shy away to admit

that the first case decided by the Court after the Fourteenth Amendment was

adopted actually interpreted the Amendment “as proscribing all state-imposed

discriminations against the Negro race.”426 Although Chief Justice Warren

claimed the historical record was “inconclusive,”427 ample record would have

pointed to the nation’s long and ugly history of slavery and racism as its deeply

rooted history and tradition. Yet, Chief Justice Warren emphatically refused to

let the solemn inquiry of equality be stifled in the dead hand of history: “[W]e

cannot turn the clock back to 1868 when the Amendment was adopted, or

even to 1896 when Plessy v. Ferguson was written. We must consider public

education in the light of its full development and its present place in American

life throughout the Nation.”428

And the Court did not turn the clock back. Time and time again, when

deciding fundamental rights that later became the ethos of the American society,

courts did not end their inquiries in history. Loving did not end in the long history

of legislative prohibition of interracial marriage.429 Griswold did not end in the

425Id. at 489 (“The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.”). 426Id. at 490 (citing Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67–72 (1873)). 427Id. at 489. 428Id. at 492–93 (emphasis added). 429Loving, 388 U.S. at 9–12. 163

history of nonrecognition of the right to contraception.430 Lawrence431 overruled

Bowers432 against the lengthy history of criminalizing homosexual sodomy.

Let’s talk about what used to be deeply rooted in our nation’s history and

tradition. In Bowers, the Court noted, “The issue presented is whether the

Federal Constitution confers a fundamental right upon homosexuals to

engage in sodomy.”433 The Bowers Court also pointed out that proscriptions

against sodomy “have ancient roots.”434 Therefore, “to claim that a right to

engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’

or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”435 If that did

not yet sound familiar, try this: “The case also calls for some judgment about

the limits of the Court’s role in carrying out its constitutional mandate.” 436

Indeed, because the historical intent of the Fourteenth Amendment was to

protect recently released slaves, a strong historical-intent argument could be

made that women are not “persons” within the Fourteenth Amendment, the same

kind of reasoning that supported the decision in Dred Scott v. Sandford.437

430Griswold, 381 U.S. at 486. 431Lawrence, 539 U.S. at 578. 432Bowers, 478 U.S. at 192–94. 433Id. at 190. 434Id. at 192–94 (recounting history from the ratification of Bill of Rights to 1961 when all

fifty states still outlawed sodomy). 435Id. at 194. 436Id. at 190. 437Dred Scott v. Sandford, 60 U.S. (19. How.) 393, 421–23 (1857) (enslaved party),

superseded by constitutional amendment, U.S. Const. amend. XIII. 164

The mistake of the Bowers-line of argument is, of course, that it fails to

“appreciate the extent of the liberty at stake.”438 A faithful reading of Brown and

Lawrence compels us to reject limiting our reading of fundamental rights by

using 18th century mentality.

Consider also the impact of a dead constitutional approach on our system

of government. Here in Iowa, the one-person-one-vote principle embraced in

Baker v. Carr had a dramatic impact by requiring that the Iowa Senate be

apportioned based on population.439 But the constitutional interpretation that

supported Baker cannot be found in 1789, when the historic practice in

statehouses was to have apportionment based on other than one-person-one-

vote principals. So, that decision is wrong, too, if based on historical practice.

Because in 1857 there was no public recognition of the rights of gays and

lesbians, our decision in Varnum v. Brien,440 and the subsequent adoption of

constitutional protections for gay rights by the United States Supreme Court in

Obergefell v. Hodges441 would be out the window.

D. Relevance of Historic Restrictions on Abortion. The history of

abortion regulation is often relied upon to defeat reproductive autonomy for

today’s women. But the history is complicated. A lot of discussion centers on the

criminalization of abortion in the early history of the nation, and yet there are

438Lawrence, 539 U.S. at 567. 439Baker v. Carr, 369 U.S. 186, 207–08 (1962). 440Varnum v. Brien, 763 N.W.2d 862, 906–07 (Iowa 2009). 441Obergefell, 576 U.S. at 681. 165

records showing that convictions of abortion were rare.442 Notably, abortion was

not a crime at common law at all stages.443 According to the American Historical

Association, “American history and traditions from the founding to the post-Civil

War years included a woman’s ability to make decisions regarding abortion, as

far as allowed by the common law.”444

Iowa’s first recorded territorial law relating to abortion was in 1839.445 This

territorial law was limited to only miscarriages that were procured through

poisons, and did not target abortion through other means.446 In Iowa, abortion

appears to have been common in the nineteenth century notwithstanding

statutory provisions.447 As noted by one contemporaneous medical society

commentator, “criminal abortion is astonishingly common,” and that “even

abortions were produced in most instances by the regular profession of the

442Brief for Am. Hist. Ass’n & Org. of Am. Historians as Amici Curiae Supporting Respondents at 29, Dobbs v. Jackson Women’s Health Org. (No. 19–1392) (argued Dec. 1, 2021) (“Conviction is the exception, instead of . . . the rule,” (quoting O.E. Herrick, Abortion and Its Lesson, Mich. Med. News (Jan. 10, 1882) (omission in original))). 443Roe, 410 U.S. at 140. 444Brieffor Am. Hist. Ass’n & Org. of Am. Historians as Amici Curiae Supporting Respondents at 30, Dobbs (No. 19–1392). 445Iowa Stat. Laws, Courts § 18 (1839). 446Id. (“[E]very person who shall administer, or cause to be administered or taken, any

such poison, substance, or liquid, with the intention to procure the miscarriage of any woman being with child, and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three years, and fined in a sum not exceeding one thousand dollars.”). 447See J.W.H. Baker, Medicine Not an Exact Science, 1 Transactions of the Iowa State Med. Soc’y 9, 13 (1871) (“Much has been written upon the subject of criminal abortion, and much more needs to be written, in order to correct the public opinion that there is no crime in inducing this act.”); J.C. Stone, Report on the Subject of Criminal Abortion, 1 Transactions of the Iowa State Med. Soc’y 26, 29 (1871) (“Iowa fills her quota of [criminal abortion] as surely as she filled the broken ranks of her regiments during the late war.”). 166

state.”448 Additionally, enforcement of abortion prohibitions in Iowa seems to

have been less than zealous with roughly thirty-two documented

abortion-related convictions from 1860s to 1920s.449 Thus, the historical

grounds “are not without doubt and, at the very least, are overstated.”450

Motivations behind the criminalization of abortion should not escape our

evaluation. Records show that the foremost advocates of criminalization of

abortion were virulently sexist and racist.451 The leading advocate of

criminalization, Dr. Horatio Storer and his colleagues, vigorously resisted the

entry of women into the medical profession.452 They defined abortion as “a female

crime,”453 a breach of marital duty, and accused those women who sought

abortion as lazy,454 against the maternal instinct, and “avoid[ing] the labor of

448C.E. Ruth, Removal of the Secundines in Abortion, 8 Transactions of the Iowa State Med. Soc’y 55, 61 (1890) (remarks of Dr. Hutchins). 449For complete Iowa record from the 1860s to 1920s, see Appendix A. 450Lawrence, 539 U.S. at 571. 451“The antiabortion campaign repeatedly insisted that women’s reproductive conduct demanded regulation, using arguments which are striking in their rhetorical range and tenor. These arguments provide ample evidence that the campaign itself was the product of sexual conflict reaching far beyond the question of abortion.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 300 (1992) [hereinafter Siegel]. 452Id. at 286, 300–02. 453Id. at 300–01 (“It identified them, in order of culpability, as the pregnant woman, her

female friends and acquaintances, nurses, midwives and female physicians—then husbands, quacks and professed abortionists, and druggists, but rarely, if ever, male physicians in regular standing.”) 454“Is it not arrant laziness, sheer, craven, culpable cowardice, which is at the bottom of this base act? . . . . Have you the right to choose an indolent, selfish life, neglecting the work God has appointed you to perform?” Id. at 301–03 (omission in original) (quoting Augustus Gardner, Physical Decline of American Women, reprinted in Augustus K. Gardner, Conjugal Sins Against the Law of Life and Health 199, 230 (1870)). 167

caring for and rearing children.”455 Storer also believed abortion risked letting

white people be outnumbered by immigrants.456 I decline to embrace a tradition

with obvious sexist and racial motivation into our modern jurisprudence of

reproductive autonomy.

X. Deciding the Appropriate Standard of Review for Reproductive Autonomy.

A. Introduction. Once a right to reproductive autonomy is established, a

question arises regarding the level of scrutiny that should be applied to

legislation that impinges on that right. One might ask why such a test is required

at all. The state, however, has an interest, for example, in ensuring that women

are well informed about abortion before they give their consent to the

procedure.457 A standard needs to be developed to provide a framework for

determining whether the woman’s autonomy interests prevails over the asserted

interest of the state.

Under the established approach to Iowa substantive due process analysis,

the critical issue is whether the constitutional right involved is considered

“fundamental.”458 Therefore, in Planned Parenthood II, we adhered to our

precedent and adopted a strict scrutiny test.459 Aside from precedent, strict

455Id.(quoting James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800–1900, 89 (1978)). 456Id. at 298–99 (“[W]hile the great territories of the far West, just opening to civilization,

and the fertile savannas of the South, now disinthralled and first made habitable by freemen, offer homes for countless millions yet unborn. Shall they be filled by our own children or by those of aliens?” (quoting Horatio Robinson Storer, Why Not? A Book for Every Woman 17 (1866))). 457Planned Parenthood II, 915 N.W.2d at 241. 458Hensler, 790 N.W.2d at 580–81. 459Planned Parenthood II, 915 N.W.2d at 240–41. 168

scrutiny is the appropriate test because of the depth of the interest a woman has

in her reproductive autonomy.

Nonetheless, it is worth the time to consider the possible alternative tests

to strict scrutiny and why they are insufficient. We are not, however, bound from

adopting a test stricter than that in Planned Parenthood I. In Planned

Parenthood I, we accepted the framework as presented by the parties.460

B. Inadequacy of Rational Basis Test. At the outset, we should at all

costs avoid utilizing a “rational basis test” to consider the validity of statutes and

regulations that impinge upon reproductive autonomy. Such a test,

unacceptable in many contexts, would be completely unacceptable in the context

of a woman’s right to reproductive autonomy.

The rational basis test is in many cases a complete farce. It has been used

to justify requiring that only licensed morticians could sell caskets;461 only

licensed florists could sell flowers;462 and that riverboat pilots are restricted to

certain members of families.463 As noted by one scholar:

The rational basis test as applied by the Supreme Court is such a permissive level of review that it is effectively not judicial review at all. It permits the most irrational of legislation to become the law of the land, no matter how needless, wasteful, unwise, or improvident it might be.464

460Planned Parenthood I, 865 N.W.2d at 262–63. 461Powers v. Harris, 379 F.3d 1208, 1211, 1215 (10th Cir. 2004). 462Meadows v. Odom, 360 F. Supp. 2d 811, 822–25 (M.D. La. 2005), vacated as moot 198 F. App’x 348 (5th Cir. 2006) (per curiam). 463Kotch v. Bd. of River Port Pilot Comm’rs for Port of New Orleans, 330 U.S. 552, 553–56, 564 (1947). 464James M. McGoldrick, Jr., The Rational Basis Test and Why It Is So Irrational: An

Eighty-Year Retrospective, 55 San Diego L. Rev. 751, 752–54 (2018) (footnotes omitted); see also 169

Because the rational basis test is such a weak test that favors the government

over individual rights, it has no place whatsoever in the evaluation of statutes or

regulations that impinge on the fundamental right of reproductive autonomy.

The problem with the rational basis test is not only the weakness of the

test on its face, it has sometimes been said to require court’s to consider any

“conceivable basis” to support the statute even if the basis has not been

advanced by the state.465 Under the rational basis test, then, the court is no

longer a neutral arbiter, but instead gets off the bench, sits at counsel’s table for

the state, and acts as a friend or advisor to the state. A rational basis test where

the judge is obligated to dream up reasons to support an infringement of

reproductive autonomy will not be well received by women desperate to regain a

degree of control over their lives by exercising their right to reproductive

choice.466

Application of the rational basis test to abortion regulation will drain the

legitimacy of the courts by appearing to favor one party—the government—over

the individual. Applying this test for abortion rights is completely inconsistent

Thomas B. Nachbar, The Rationality of Rational Basis Review, 102 Va. L. Rev. 1627, 1629 (2016) (“RATIONAL basis review is the poor stepchild of judicial review. Requiring only that regulations . . . be rationally related to a legitimate governmental interest, it is widely regarded as virtually ‘no review at all.’ ” (footnotes omitted) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 323 n.3 (1993) (Stevens, J., concurring in judgment))). 465Beech Commc’ns, Inc., 508 U.S. at 314–15 (majority opinion). 466I recognize that there are a handful of cases labeled “rational basis” that apply more bite than usual. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973). I also recognize that we embraced a rational basis test with some teeth in Racing Ass’n of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004). None of these cases, however, offer tests that would provide adequate protection for reproductive autonomy. The tougher review in Racing Ass’n of Central Iowa is under substantial pressure from the current majority, which generally seeks to lessen judicial review of legislative action. 170

with the primacy of individual liberties under the Iowa Constitution. As was

apparent to George Ells but seems lost today, an important purpose of the state

is to advance civil liberties and encourage the widest possible sphere of

autonomy under article I, section 1 of the Iowa Constitution, and all other

provisions of the Bill of Rights. The rational basis test does the opposite—it

enlists the judiciary as a partisan to choke and strangle the scope of “inalienable”

individual liberties.

C. Inadequacy of the Undue Burden Test, Even “with Teeth.”

1. Introduction. Having rejected the rational basis test, I now turn to the

undue burden test. It is important to recognize that there is no one undue

burden test. There are many variations. The undue burden test “with teeth”

presented below is consistent with this court’s approach in Planned Parenthood

I and follows the general outline of an article in the literature.467

2. Features of an undue burden test with teeth. Although there are many

possible variants, here is the outline of an undue burden test “with teeth.” First,

the state must empirically show that the law substantially advances a legitimate

government purpose.468 If the state fails to demonstrate factually that the law

advances a legitimate government purpose, the law is invalid.469 Under this

element, the state cannot make hypothetical arguments but must present

467NirajThakker, Student Article, Undue Burden with a Bite: Shielding Reproductive Rights from the Jaws of Politics, 28 U. Fla. J.L. & Pub. Pol’y 431 (2017) [hereinafter Thakker]. 468Id. at 469 (“If a State either fails to provide any empirical data to support the law or fails to articulate a legitimate interest, the statute must be deemed unconstitutional.”). 469Id. 171

admissible evidence on the question of whether the restriction advances a

legitimate state interest. If the state makes an adequate showing, the next step

is to proceed to the second question.470

The second question is whether the statute has the purpose or effect of

imposing a substantial obstacle in the path of women seeking an abortion.471

Under the “purpose” prong, the court should look for the predominant factor

motivating the legislation.472 If the predominant purpose of the legislation is to

provide an obstacle or hurdle to reproductive autonomy, the statute should be

invalid. If the primary purpose is to advance a legitimate state interest, the

analysis proceeds to the “effect” prong of the undue burden test.473

Under the effect prong, the court then examines whether the law presents

a substantial obstacle in the path of women seeking an abortion.474 The effect

element breaks down into several elements: The first task is to identify “the

relevant group of women to which the law applies.”475 The second question, in

my view, is whether the benefits conferred by the law significantly outweigh the

burdens imposed on reproductive freedom.476 In engaging in this inquiry, as

Justice Breyer did in Whole Woman’s Health,477 the court should conduct a

470Id.

471Id.

472Id. at 470. 473Id.

474Id. at 471–73. 475Id. at 471. 476See id. 477Whole Woman’s Health, 136 S. Ct. at 2309–10; see also Thakker, 28 U. Fla. J.L. & Pub.

Pol’y at 471. 172

balancing analysis and weigh the strength of the state’s justification against the

burden placed on a woman seeking an abortion.478 A showing of burden is

minimal when challenging a law with marginal benefits. But, a greater showing

of burden is required when a law seeks to achieve substantial benefits. The third

question is to conduct a balancing test based upon the cumulative restrictions

of the law.479

3. Shortcomings of undue burden compared with strict scrutiny. In my view,

although this test is consistent with the one followed in Planned Parenthood I, it

is deficient compared to the strict scrutiny approach in Planned Parenthood II.

No matter how it is framed, the undue burden test has spongy elements.

Determining the purpose of a restriction can be difficult and certainly risks

thrusting the court into a potential morass. And, determining what amounts to

a “substantial obstacle” to reproductive freedom is subjective. For example, some

may regard the economic hardships experienced by poor women as

inconsequential based upon their life experience. In making the determination

of what is “substantial,” one’s view on reproductive autonomy may play a role.

As seen in part VII.A above, the undue burden test has been rejected by a

majority of state courts recognizing reproductive autonomy. We should do the

same.

478This is consistent with what we held in Planned Parenthood I, 865 N.W.2d at 264

(rejecting the Fifth and Sixth Circuits’ approach, which only requires the state set forth a justification sufficient to pass rational basis review and not consider the trength of the state’s justification). 479Thakker, 28 U. Fla. J.L. & Pub. Pol’y at 471. 173

D. Strict Scrutiny Test Traditionally Associated with Fundamental

Interests. So, that leaves the strict scrutiny test. At the outset, as I have

emphasized, the strict scrutiny test has been long linked to due process

violations involving fundamental interests. Exactly what is a fundamental

interest, of course, has been the subject to some debate, but I find it very hard

to come to any other conclusion with respect to a woman’s right to reproductive

autonomy.

And, if so, the strict scrutiny model gives a woman sufficient freedom of

action to exercise her fundamental rights without state interference. Under the

strict scrutiny test, reproductive autonomy does not turn on the perception of a

judge or group of judges regarding whether a restriction is a “substantial”

burden. A woman has a substantial arena of private choice free from state

interference.

XI. Inalienable Rights Clause Not Presented.

In the pleadings, Planned Parenthood asserted a right to reproductive

autonomy under the inalienable rights clause of article I, section 1 of the Iowa

Constitution. The merits of this potentially powerful theory480 were not presented

in the motion and cross-motion for summary judgment. There has been no

briefing on appeal related to the issue. The status of any article I, section 1 claim,

and the standards that might arise from such a claim, have not been decided

today.

480Seegenerally Bruce Kempkes, The Natural Rights Clause of the Iowa Constitution: Whern the Law Sits Too Tight, 42 Drake L. Rev. 593 (1993); see also Hodes & Nauser, 440 P.2d at 492. 174

XII. Iowa Code Section 146A.1(1) Violates Equal Protection.

I fully incorporate the equal protection reasoning of the five-member

majority in Planned Parenthood II.481 In Planned Parenthood II, we found that a

72-hour waiting period imposed by statute violated equal protection under article

I, sections 1 and 6 of the Iowa Constitution. As pointed out by Planned

Parenthood, and consistent with what we had observed in Planned Parenthood

II,482 while women and men are not similarly situated in biological term, they are

nevertheless similarly situated with respect to reproductive autonomy. We noted

that the decision whether to bear children is critical to “a woman’s autonomous

charge of her life’s full course . . . , her ability to stand in relation to man, society,

and the state as an independent, self-sustaining, equal citizen.”483 Yet, we noted

that “[w]ithout the opportunity to control their reproductive lives, women may

need to place their educations on hold, pause or abandon their careers, and

never fully assume a position in society equal to men, who face no such similar

constraints for comparable sexual activity.”484 We cited United States v. Virginia

in support of the notion that equal protection prevents governments from

“den[ying] to women, simply because they are women, full citizenship stature—

481Planned Parenthood II, 915 N.W.2d at 246. 482Id. at 244–46 (noting our notion of equal protection recognizes that “biological differences have been used to justify women’s subordinate position in society” and observing that limiting women’s reproductive autonomy prevents women from being equal participants in society). 483Id. at 245 (omission in original) (quoting Ginsburg, 63 N.C. L. Rev at 383) (“[I]f the

Court had added a distinct sex discrimination theme to its medically oriented opinion, the storm Roe generated would have been less furious.”). 484Id. 175

equal opportunity to aspire, achieve, participate in and contribute to society

based on their individual talents and capabilities.”485 We found that restrictions

on abortion fundamentally impair full participation of women in society and

therefore violated equal protection.486

Nothing in the law has changed since our equal protection holding in

Planned Parenthood II. Stare decisis comes into play. We should adhere to our

precedent on this important issue.

XIII. The Consequences of the Majority Decision.

Constitutional liberties are often destroyed “not with a bang, but a

whimper.”487 I fear for the future of reproductive autonomy in Iowa. The majority

today “casts into darkness the hopes and visions of every woman in this country

who had come to believe that the Constitution guaranteed her the right to

exercise some control over her unique ability to bear children.”488

485Id. (alteration in original) (quoting United States v. Virginia, 518 U.S. 515, 532 (1996)). 486Id. at 245–46. For discussion of antisubordination theory of equal protection, see

Siegel, 44 Stan. L. Rev. at 351–54 (“From a historical perspective it is clear that abortion- restrictive regulation is caste legislation, a traditional mode of regulating women’s conduct, concerned with compelling them to perform the work that has traditionally defined their subordinate social role and status. . . .[I]t is also clear that this society’s reasons for enacting restrictions on abortion have been deeply entangled in its conceptions of women as mothers.”); Ruth Colker, Anti-Subordination Above All: Sex, Race and Equal Protection, 61 N.Y.U. L. Rev. 1003, 1003 (1986) (“Anti-subordination . . . argues that it is inappropriate for groups to be subordinated in society. [It] rejects policies, even if facially neutral, that perpetuate the historical subordination of groups, while embracing even facially differentiating policies that ameliorate subordination.”); Ginsburg, 63 N.C. L. Rev. at 383 (“The conflict, however, is not simply one between a fetus’ interests and a woman’s interests, narrowly conceived, nor is the overriding issue state versus private control of a woman’s body for a span of nine months. Also in the balance is a woman’s autonomous charge of her full life’s course—as Professor Karst put it, her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.” (footnote omitted)). 487Webster, 492 U.S. at 557. 488Id. 176

The majority has chosen to simply rule that strict scrutiny is not the

applicable test of a statute regulating abortion under the due process clause of

article I, section 9 of the Iowa Constitution and has remanded the case to the

district court for further consideration of other issues. The problem with this

approach is twofold. First, the majority opinion grossly understates the

importance of this life-changing abortion decision on women. Second, the

majority opinion eliminates a strong, workable, and widely accepted barrier to

governmental intrusion into the reproductive choices of a woman and invites us

to stare into the standard-less abyss.

For those who favor a woman’s autonomy and personal freedom, this is an

unwelcome development. A strong barrier to state interference in a woman’s right

to determine whether to have an abortion has been removed by the majority. And

the right to abortion is left in a free fall. Make no mistake—reproductive rights

are at great risk with this decision.

But while the majority does not give substantial direction to the district

court, I have some thoughts to seek to salvage what can be salvaged from the

decision. First, the district court must recognize the rights primacy of the Iowa

Constitution and reject summarily a rational basis test, which is too often no

test at all. Second, if a version of the undue burden test is to be adopted, it must

be with teeth. That means that the open channel for a woman to obtain an

abortion must be broad enough to allow every woman a substantial, meaningful

opportunity to exercise her choice free from interference by the state. And third,

this case provides a good test as to whether there will be any teeth in an undue 177

burden test as the regulation involved is pointless, imposes burdens on

especially poor women, intrudes on the relationship between patient and

physician, and does all this with little appreciable gain. A weak undue burden

test will either be no test at all or be subject to the steady drum beat of

diminution that ultimately leads to a complete lack of respect for women’s

XIV. Conclusion.

For the above reasons, I would affirm the decision of the district court. 178

APPENDIX A

Abortion-Related Convictions in Iowa from the 1860s to 1920s489

1860s: Elijah Sells, Report of the Secretary of State, reporting no convictions for abortion- Off. of Sec’y of in Relation to the Criminal related offenses in 1860 or 1861 State Returns, of the State of Iowa For the Years 1860–1, 23–25, 50–51 (1862)

James Wright, Report of the Secretary of State, reporting no convictions for abortion- Off. of Sec’y of in Relation to the Criminal related offenses in 1862 or 1863 State Returns of the State of Iowa, For the Years 1862–3, 27, 66 (1864)

James Wright, Report of the Secretary of State, reporting no convictions for abortion- Off. of Sec’y of in Relation to the Criminal related offenses in 1864 or 1865 State Returns of the State of Iowa, For the Years A.D. 1864–5, 41, 93 (1865)

Ed Wright, Report of the Secretary of State, reporting no convictions for abortion- Off. of Sec’y of in Relation to the Criminal related offenses in 1866 or 1867 State Returns of the State of Iowa, For the Years A.D. 1866–7, 5–47, 88 (1868)

1870s: Ed Wright, Report of the Secretary of State, reporting no abortion-related crimes for Off. of Sec’y of in Relation to the Criminal 1870 or 1871 State Returns of the State of Iowa For the Years 1870 and 1871, 40, 88 (1872)

Josiah T. Report of the Secretary of State, reporting one conviction for “[p]roducing Young, Off. of in Relation to the Criminal abortion” by a hotel keeper in Clinton Sec’y of State Returns of the State of Iowa For County in 1874; one conviction for the Years 1874 and 1875, 18, “[m]anslaughter (committing abortion)” by 64–65, 87, 135–36 (1875) a physician in Floyd County in 1875

Josiah T. Report of the Secretary of State, reporting three convictions for abortion by Young, Off. of in Relation to the Criminal laborers in Tama County in 1876; one Sec’y of State Returns of the State of Iowa For conviction for abortion by a housekeeper the Years 1876 and 1877, 65, in Mahaska County in 1877 82–83, 126, 155–56 (1877)

489Criminal reports for biennial years 1868–69, 1872–73, and 1915–16 were unable to be located. 179

J.A.T. Hull, Report of the Secretary of State, reporting no convictions for abortion- Off. of Sec’y of in Relation to the Criminal related offenses in 1878; one conviction of State Returns of the State of Iowa for “Abortion, attempt to produce” by a the Years 1878 and 1879, 63– teacher in Harrison County in 1879 64, 90, 129–30 (1879)

1880s: J.A.T. Hull, Report of the Secretary of State, reporting no convictions for abortion in Off. of Sec’y of in Relation to the Criminal 1880 or 1881 State Returns of the State of Iowa For the Years 1880 and 1881, 54– 56, 116–18 (1881)

J.A.T. Hull, Report of the Secretary of State in reporting one conviction for abortion by a Off. of Sec’y of Relation to the Criminal Returns farmer in Buchannan County in 1882 but State of the State of Iowa For the Years no abortion-related convictions in 1883 1882 and 1883, 10, 65–67, 129– 31 (1884)

Frank D. Report of the Secretary of State in reporting one conviction for producing an Jackson, Off. Relation to the Criminal Returns abortion by a druggist in Howard County of Sec’y of of the State of Iowa, For the Years in 1884, two convictions in abortion in State 1884 and 1885, 66–68, 84, 120, Dubuque County in 1885, and one 125–27 (1885) conviction of an attempted abortion by a farmer in Washington County in 1885

Frank D. Report of the Secretary of State in reporting no abortion-related crimes for Jackson, Off. Relation to the Criminal Returns 1886 or 1887 of Sec’y of of the State of Iowa. For the Years State 1886 and 1887, 68–70, 140–42 (1887)

Frank D. Report of the Secretary of State in reporting no abortion-related convictions Jackson, Off. Relation to the Criminal Returns in 1888 and only one conviction for of Sec’y of of the State of Iowa, For the Years “[a]ttempting to produce the miscarriage State 1888 and 1889, 59–61, 93 of pregnant woman” by a farmer in (1888) Jefferson County in 1889

1890s: W.M. Report of the Secretary for State reporting one conviction for abortion by a McFarland, Relating to Criminal Convictions painter in Montgomery County in 1890 Off. of Sec’y of of the Years 1890 and 1891, 44, but no such convictions in 1891 State 67–69, 142–45 (1891)

W.M. Report of the Secretary of State reporting no abortion-related convictions McFarland, Relating to Criminal Convictions in 1892 or 1893 Off. of Sec’y of for the Years 1892 and 1893, 77– State 80, 148–50 (1893)

W.M. Report of the Secretary of State reporting one conviction for abortion by an McFarland, Relating to Criminal Convictions agent in Dubuque County in 1894, three convictions for abortion in Polk County in 180

Off. of Sec’y of for the Years 1894 and 1895, 23, 1894, one conviction for abortion in Polk State 49, 71–72, 124, 147–49 (1895) County in 1895

Geo. L. Report of the Secretary of State reporting no abortion-related convictions Dobson, Off. Relating to Criminal Convictions in 1896 and one conviction for of Sec’y of for the Years 1896 and 1897, 71– “[p]roducing miscarriage of a pregnant State 72, 125, 141–43 (1897) woman” by a dentist in Scott County in 1897

G.L. Dobson, Report of the Secretary of State reporting no abortion-related convictions Off. of Sec’y of Relating to Criminal Convictions in 1898 or 1899 State for the Years of 1898 and 1899, 42, 61, 70–72, 129, 137, 146–48 (1899)

1900s: William B. Report of the Secretary of State reporting one conviction for abortion by a Martin, Off. of Relating to Criminal Convictions carpenter in Ringgold County in 1900 and Sec’y of State for the Years 1900 and 1901, 54, one conviction for attempting to produce a 70–72, 130, 142–44 (1901) miscarriage by a physician in Van Buren County in 1901

W.B. Martin, Report of the Secretary of State reporting no abortion-related convictions Off. of Sec’y of Relating to Criminal Convictions in 1902 or 1903 State of the State of Iowa for the Years 1902 and 1903, 78–81, 154–56 (1903)

W.B. Martin, Report of the Secretary of State reporting no abortion-related convictions Off. of Sec’y of Relating to Criminal Convictions in 1904 or 1905 State of the State of Iowa for the Year Ending September 30, 1904, and the Year Ending September 30, 1905, 79–82, 158–60 (1905)

William B. Report of the Secretary of State reporting no abortion-related convictions Martin, Off. of Relating to Criminal Convictions in 1906 Sec’y of State For the Year 1906, 87–89 (1906)

W.C. Report of the Secretary of State reporting no abortion-related convictions Hayward, Off. Relating to Criminal Convictions in 1907 and one conviction for “[a]ttempt of Sec’y of For the Biennial Period Ending to produce miscarriage” by a paperhanger State September 30, 1908, 80–82, 88, in Audubon County in 1908 158–60 (1908)

Iowa Bd. of Report of the Iowa Board of reporting no abortion-related convictions Parole Parole Relating to Its Operations in 1909 or 1910 from July 1, 1910, to June 30, 1910, Inclusive 79–80, 130–31 (1910) 181

1910s: Iowa Bd. of Second Biennial Report of the reporting a conviction for “[a]ttempting to Parole Iowa Board of Parole Relating to produce a miscarriage” in Polk County in Its Operations from July 1, 1910, 1911 and no abortion-related convictions to June 30, 1912, Inclusive 64, in 1912 81–82, 134–36 (1913)

Iowa Bd. of Third Biennial Report of the Iowa reporting one conviction for abortion by a Parole Board of Parole Relating to Its housewife in Blackhawk County with the Operations from July 1, 1912, to sentence “not passed” in 1913 and no June 30, 1914, Inclusive 39, 94– abortion-related convictions in 1914 96, 161–63 (1914)

Iowa Bd. of Report of the Board of Parole for reporting no abortion-related convictions Parole the Biennial Period Ending June for 1917 or 1918 30, 1918 Including Criminal Statistics 55–57, 91–93 (1918)

Iowa Bd. of Report of the Board of Parole for reporting no abortion-related convictions Parole the Biennial Period Ending June for 1919 and two convictions for “[a]ttempt 30, 1920 Including Criminal to produce miscarriage” in 1920 Statistics 23–24, 27–28 (1920)

1920s: Iowa Bd. of Report of the Board of Parole for reporting no abortion-related offenses Parole the Biennial Period Ending June between July 1, 1920 to June 30, 1922 30, 1922 Including Criminal Statistics for Each County of the State 20–21 (1922)

Iowa Bd. of Report of the Board of Parole for reporting one person received a prison Parole the Biennial Period Ending June sentence for “[a]ttempt to produce 30, 1924 Including Criminal miscarriage” between July 1, 1922 to June Statistics for Each County of the 30, 1923, and one person received a State 20–23 (1924) prison sentence for “[a]ttempt to produce miscarriage” between July 1, 1923 to June 30, 1924

Iowa Bd. of Report of the Board of Parole for reporting one person received a prison Parole the Biennial Period Ending June sentence for “[a]ttempt to produce 30, 1926 Including Criminal miscarriage” between July 1, 1925 to June Statistics for Each County of the 30, 1926, but no abortion-related offenses State 18–21 (1926) for July 1, 1924 to June 30, 1925

Iowa Bd. of Report of the Board of Parole for reporting two people received prison Parole the Biennial Period Ending June sentences for “[a]ttempt to produce 30, 1928 Including Criminal miscarriage” between July 1, 1926 to June Statistics for Each County of the 30, 1927, but not for July 1, 1927 to June State 12–16 (1928) 30, 1928 182

Iowa Bd. of Report of the Board of Parole for reporting no abortion-related offenses Parole the Biennial Period Ending June between July 1, 1928 to June 30, 1930 30, 1930 Including Criminal Statistics for Each County of the State 12–16 (1930)