24-hour abortion waiting period remains in limbo between court appearances

Providers like Planned Parenthood implemented a 24-hour waiting period for abortions following an Iowa Supreme Court decision on the law Friday, despite no confirmation of the law’s immediate enforcement.

The Iowa Legislature enacted a 24-hour waiting period of patients seeking an abortion in 2020. Planned Parenthood of the Heartland filed a lawsuit arguing the law was unconstitutional. The Iowa Supreme Court, ruling Friday in the case, found there is no state constitutional right to abortion, overturning a 2019 precedent.

The ruling sent the case back to the district court for consideration of the waiting period based on the Supreme Court’s decision.

But it remains unclear whether the permanent injunction, which stopped enforcement of the law under the district court’s decision, is still in effect.

The permanent injunction remains in place for the 21 days between the Supreme Court’s ruling and the law’s return to district court. Under that order, the law should not be enforced until late July, according to the Iowa Attorney General’s Office.

Rita Bettis Austen, legal director for the ACLU of Iowa, said organizations like Planned Parenthood are working under the understanding that with the Supreme Court’s decision to reverse and remand the previous ruling, the injunction was also reversed.

“That injunction is no longer in effect, which means that Iowans will have to comply with the 24-hour and two appointment law for now,” Austen said.

Lynn Hicks, chief of staff for Iowa Attorney General Tom Miller, said the office is not aware of any enforcement.

“I know that Planned Parenthood and ACLU believe the law is in effect, but the permanent injunction doesn’t end and the law doesn’t go into effect until the case goes back to the district court,” Hicks wrote in an email to the Iowa Capital Dispatch.

The Iowa Board of Medicine will enforce the law when it goes into effect. The board did not return requests for comment.

Beyond the Iowa Supreme Court decision, another shift in abortion law is expected: The U.S. Supreme Court’s decision on Dobbs v. Jackson Women’s Health Organization. A document leaked by Politico, and confirmed by Chief Justice John Roberts, was a draft decision indicating majority support to overturn Roe v. Wade, which protects the right to abortion federally.

The decision would also overturn Planned Parenthood v. Casey, a 1992 case which established an “undue burden” test for laws restricting abortion access. The “undue burden” standard reviews whether a law makes a subject significantly more difficult to access.

The Iowa Supreme Court did not overturn Iowa’s own undue burden test for abortions, which was adopted in 2015.

Austen with the ACLU said the Planned Parenthood suit will still argue that the 24-hour waiting period fails that standard. But Sally Frank, a Drake law professor, said the Iowa Supreme Court’s decision was ambiguous on whether Iowa courts will continue to uphold that standard if Casey is overturned.

“One of the questions is whether the case will use the undue burden test or the rational basis test,” Frank said. “And if the Supreme Court does overturns Casey, which we expect, the question is whether the undue burden test even if it exists.”

The “rational basis” test would only require the state or court to show there’s a rational reason behind the law. Frank said it was rare for courts to overturn laws on this standard.

Once the U.S. Supreme Court decision is released, legislators may make significant changes to Iowa abortion law. Frank said she would not be surprised if Gov. Kim Reynolds called a special legislative session this summer to pass abortion restrictions. That could include a full ban on all abortion procedures in Iowa, if Roe is overturned.

“They were working around the edges because of Roe and Casey,” Frank said. “But if Roe and Casey are gone, and with the 2018 decision gone, they will feel empowered to fully ban abortion.”