Almost exactly one year ago, Iowa justice Edward Mansfield—who was on Donald Trump’s list of Supreme Court candidates in 2016—wrote a majority opinion that overruled a 2018 precedent from his court and held that abortion is not a “fundamental right” under the state constitution. In a portion of his opinion that garnered only a plurality, he declined to decide what constitutional standard—e.g., “undue burden” or deferential rational-basis review—should replace strict scrutiny. He deemed it appropriate to leave the “undue burden” test on remand as the governing standard “[f]or now.”
In a ruling today (in a case bearing the same caption of Planned Parenthood of the Heartland v. Reynolds), Mansfield provided the critical third vote that created a 3-to-3 deadlock on whether to dissolve the injunction that barred Iowa’s 2018 heartbeat law from taking effect. (The seventh member of the court, Justice Dana Oxley, recused.) That deadlock leaves the injunction in place. Mansfield once again took a pass on replacing the undue-burden standard with rational-basis review, and he indicated that he would be averse to ever doing so.
The opinion by Justice Thomas Waterman that Mansfield (and Chief Justice Susan Christensen) joined (pp. 4-22) relies on some procedural complexities that would be easier to credit as genuine rather than pretextual if they were not accompanied by tendentious rhetoric and flimsy arguments. As Waterman explains it, under his court’s practice a writ of certiorari can be sustained only if the lower court acted illegally or outside its jurisdiction. Because the lower court applied the existing undue-burden standard in refusing to dissolve the injunction, it did not act illegally. It would be improper and “unprecedented,” he argues, for his court to “change the law”—i.e., adopt rational-basis review of abortion restrictions—“and then vacate the injunction in the same case.” Instead, the legislature should have to reenact the heartbeat law.
That reasoning would leave Mansfield open to adopting rational-basis review in another case. But the final part of Waterman’s opinion gratuitously disparages rational-basis review of abortion restrictions.
Justice Christopher McDonald penned a lengthy and comprehensive opinion (pp. 23-59) on behalf of the three justices who would dissolve the injunction. In the part that bears most directly on Waterman’s argument (pp. 45-53), McDonald argues that since the time of the lower court’s injunction in 2018, there has been a “substantial change in law warranting relief”—namely, the Iowa supreme court’s ruling a year ago that rejected the strict-scrutiny standard and that “specifically declined to adopt any legal standard” for review of abortion restrictions. McDonald points out that one of the reasons that Mansfield a year ago “refused to announce a controlling legal standard” was that he said that he “wanted to wait and see the opinions in Dobbs”:
Now that Dobbs has been released, my colleagues reject the wisdom of Dobbs. But why? Until today my colleagues believed strongly that this court should presumptively follow federal precedents.
In a short opinion on behalf of the same three justices (pp. 60-63), Justice Christopher McDonald Matthew McDermott criticizes Waterman’s odd characterization of the 2018 heartbeat law as a “hypothetical law” (“hypothetical,” per Waterman, because “it had no chance of taking effect” under the then-existing precedents), as well as various other speculations by Waterman designed to disparage the respect owed that law.
Today’s tie vote is of course not the Iowa supreme court’s definitive word on the standard of review that it will apply to state abortion laws. But it is a sadly missed opportunity for that court to restore abortion policy in Iowa to the democratic processes.