Planned Parenthood of the Heartland and Jill Meadows v. Kimberly K. Reynolds ex rel. State of Iowa and Iowa Board of Medicine ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 17–1579
Filed June 29, 2018
PLANNED PARENTHOOD OF THE HEARTLAND and JILL MEADOWS,
Appellants,
vs.
KIMBERLY K. REYNOLDS ex rel. STATE OF IOWA and IOWA BOARD
OF MEDICINE,
Appellees.
Appeal from the Iowa District Court for Polk County, Jeffrey D.
Farrell, Judge.
Appellants challenge the constitutionality of a statute that requires
women to obtain certification that they completed a number of
requirements at least seventy-two hours before having an abortion.
REVERSED.
Alice Clapman of Planned Parenthood Federation of America,
Washington, D.C., and Rita Bettis of American Civil Liberties Union of
Iowa Foundation, Des Moines, for appellants.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, and Thomas J. Ogden, Assistant Attorney General, for
appellees.
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Roxanne Conlin of Roxanne Conlin & Associates, P.C., Des Moines,
for amicus curiae Iowa Coalition Against Domestic Violence, et al.
Heather Shumaker of National Abortion Federation, Washington,
D.C., and Sally Frank, Des Moines, for amicus curiae National Abortion
Federation.
Melissa C. Hasso of Sherinian & Hasso Law Firm, Des Moines, and
Angela C. Vigil of Baker & McKenzie LLP, Miami, Florida, for
amicus curiae Biomedical Ethicists.
Bob Rush of Rush & Nicholson, P.L.C., Cedar Rapids, and
B. Jessie Hill of Case Western Reserve University, Cleveland, Ohio, for
amicus curiae Iowa Professors of Law and of Women’s Studies.
Kimberly A. Parker and Lesley Fredin of Wilmer Cutler Pickering
Hale and Dorr LLP, Washington, D.C.; Paloma Naderi of Wilmer Cutler
Pickering Hale and Dorr LLP, Boston, Massachusetts; and Paige Fiedler
of Fiedler & Timmer, Johnston, for amicus curiae American College of
Obstetricians and Gynecologists.
Frank B. Harty of Nyemaster Goode, P.C., Des Moines, and
Paul Benjamin Linton, Northbrook, Illinois, for amicus curiae Iowa
Catholic Conference.
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CADY, Chief Justice.
In this appeal, we must decide if the constitutional right of women
to choose to terminate a pregnancy is unreasonably restricted by a
statute that prohibits the exercise of the right for a period of seventy-two
hours after going to a doctor. In making this decision, we recognize the
continuing debate in society over abortion and acknowledge the right of
government to reasonably regulate the constitutional right of women to
terminate a pregnancy. In carefully considering the case, we conclude
the statute enacted by our legislature, while intended as a reasonable
regulation, violates both the due process and equal protection clauses of
the Iowa Constitution because its restrictions on women are not narrowly
tailored to serve a compelling interest of the State. The State has a
legitimate interest in informing women about abortion, but the means
used under the statute enacted does not meaningfully serve that
objective. Because our constitution requires more, we reverse the
decision of the district court.
I. The Judiciary.
We begin by reflecting on the role of the judiciary within our
venerable system of government. The Iowa Constitution, like its federal
counterpart, establishes three separate, yet equal, branches of
government. Iowa Const. art. III, § 1. Our constitution tasks the
legislature with making laws, the executive with enforcing the laws, and
the judiciary with construing and applying the laws to cases brought
before the courts.
Our framers believed “the judiciary is the guardian of the lives and
property of every person in the State.” 1 The Debates of the
Constitutional Convention of the State of Iowa 229 (W. Blair Lord rep.,
1857) [hereinafter The Debates], http://www.statelibraryofiowa.org
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/services/collections/law-library/iaconst. Every citizen of Iowa depends
upon the courts “for the maintenance of [her] dearest and most precious
rights.” Id. The framers believed those who undervalue the role of the
judiciary “lose sight of a still greater blessing, when [the legislature]
den[ies] to the humblest individual the protection which the judiciary
may throw as a shield around [her].” Id.
Unlike the United States Constitution, the Iowa Constitution
begins with the Bill of Rights. Our framers were mindful that the
annals of the world . . . furnish many instances in which the
freest and most enlightened governments that have ever
existed upon earth, have been gradually undermined, and
actually destroyed, in consequence of the people’s rights not
being guarded by written constitutions.
Id. at 100–01. Accordingly, “[t]he object of a Bill of Rights is to set forth
and define powers which the people seek to retain within themselves.”
Id. at 154. Some perceived Iowa’s Bill of Rights to be “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.” Id. at 103; cf. Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388, 407, 91 S. Ct. 1999, 2010 (1971)
(Harlan, J., concurring) (“[I]t must also be recognized that the Bill of
Rights is particularly intended to vindicate the interests of the individual
in the face of the popular will as expressed in legislative majorities . . . .”).
No law that is contrary to the constitution may stand. Iowa Const.
art. XII, § 1. “[C]ourts must, under all circumstances, protect the
supremacy of the constitution as a means of protecting our republican
form of government and our freedoms.” Varnum v. Brien, 763 N.W.2d
862, 875 (Iowa 2009). Our framers vested this court with the ultimate
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authority, and obligation, to ensure no law passed by the legislature
impermissibly invades an interest protected by the constitution.
Constitutional guarantees, such as the rights to due process and
equal protection of the law, limit the power of the majoritarian branches
of government. The purpose of such limitation is to “withdraw certain
subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts.” Id. (quoting W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 1185 (1943)). One
delegate during our state’s constitutional convention emphasized the
importance of vesting the authority to interpret our most sacred
individual rights in the hands of an entity
in regard to which we can say, there is no political taint or
bias, there is no parti[s]an complexion to it; it is of such a
character that when we go before it to have our dearest
rights decided, we may rest assured that they will be decided
upon principles of law and equity, and not upon political or
party principles.
1 The Debates, at 453.
Here, we are called upon by Iowans to review an act of the
legislature they believe infringes upon the Iowa Constitution’s guarantees
of due process and equal protection. The obligation to resolve this
grievance and interpret the constitution lies with this court. “In carrying
out this fundamental and vital role, ‘we must never forget that it is a
constitution we are expounding.’ It speaks with principle, as we, in turn,
must also.” Varnum, 763 N.W.2d at 876 (quoting McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 407 (1819)).
II. Procedural Background.
On April 18, 2017, the Iowa legislature passed Senate File 471.
Division I of Senate File 471 creates new prerequisites for physicians
6
performing an abortion, including a mandatory 72-hour waiting period
between informational and procedure appointments. See 2017 Iowa Acts
ch. 108, § 1 (codified at Iowa Code ch. 146A (2018)). Division II prohibits
performing an abortion upon the twentieth week of pregnancy. Id. § 2
(codified at Iowa Code ch. 146B (2018)).
On May 3, anticipating Governor Branstad would sign the bill into
law, Planned Parenthood of the Heartland (PPH) moved for a temporary
injunction to prevent Division I (the Act) from going into effect. PPH
alleged the Act violated the rights to due process and equal protection of
the law under the Iowa Constitution. The district court denied the
injunction, and PPH sought a stay from this court. On May 5, Governor
Branstad signed the law into effect. A few hours later, we stayed the
enforcement of the Act per a single-justice order. On May 9, we granted
PPH’s interlocutory appeal and stayed enforcement of the Act pending a
trial on the merits.
The district court subsequently held a two-day trial. At trial, PPH
produced five witnesses and an affidavit of a domestic violence expert.
The State did not call any witnesses but, instead, offered two sworn
statements. Mark Bowden, Executive Director of the Iowa Board of
Medicine, indicated the Board would promulgate rules to implement the
Act. Melissa Bird, Bureau Chief of Health Statistics at the Iowa
Department of Public Health, presented vital statistics on where abortion
patients resided in 2014 and 2015. The district court held the Act did
not violate the Iowa Constitution.
PPH appealed. We retained the case and stayed enforcement of the
Act pending resolution of the appeal. On our review, we will first
consider the entire factual record, as developed at the trial court, to
determine how the Act will impact the ability of women to obtain an
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abortion in Iowa. Following that determination, we will consider whether
the Act runs afoul of the due process clause and right to equal protection
under the Iowa Constitution.
III. Abortion Decision-Making and Access Prior to and Under
the Act.
In this section, we recount the facts underlying this case, as
presented through witness testimony and exhibits offered at trial. The
background and facts of this proceeding are extensive but need to be
comprehensively explained and considered for the ultimate decision
reached to be fully understood. The evidence and facts are an important
part of justice, as is a fair and impartial understanding of the facts.
A. Planned Parenthood of the Heartland and Abortion
Generally. PPH is a healthcare provider in Iowa that offers reproductive
healthcare services. It provides well-woman exams, contraception
counseling and care, sexually transmitted infection (STI) evaluations and
treatments, preventative care such as cervical cancer screenings and
mammogram referrals, and abortion care. PPH predominantly treats
poor and low-income women. Over 50% of PPH abortion patients live at
or below 110% of the federal poverty line, and many more of its patients
live below 200% of the federal poverty line.
Abortion is a medical procedure that terminates a pregnancy.
Between 25% and 35% of women in the United States have an abortion
during their lifetime. Between April 1, 2016, and March 31, 2017, there
were approximately 4000 abortions performed in Iowa. Many reasons
have been identified to explain why women choose to have an abortion.
Sixty percent of abortion patients already have at least one child and
many feel they cannot adequately care for another child. Other women
feel they are currently unable to be the type of parent they feel a child
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deserves. Patients frequently identify financial, physical, psychological,
or situational reasons for deciding to terminate an unplanned pregnancy.
Some patients are victims of rape or incest, and others are victims of
domestic violence. Women also present with health conditions that
prevent a safe pregnancy or childbirth. Sometimes, women discover fetal
anomalies later in their pregnancies and make the choice to terminate.
There are two abortion methods: medication and surgical.
Medication abortion safely and nonsurgically terminates a pregnancy
through the combination of two prescription medications: mifepristone
and misoprostol. At the abortion appointment, a patient is given
mifepristone, which blocks the hormone necessary to maintain a
pregnancy. Then, in her own home within six to forty-eight hours later,
the patient takes misoprostol, which causes the uterus to contract and
expel its contents, usually within a few hours. The procedure is
noninvasive and requires no sedation or anesthesia. Medication
abortions are available to patients through their tenth week of
pregnancy.
A surgical abortion is the use of instruments to evacuate the
contents of a uterus. Most surgical terminations last five to ten minutes,
and the patient has the option of receiving sedation. If a patient opts to
receive a surgical abortion with sedation, PPH requires the patient to
bring an escort. In the past year, PPH performed approximately 2100
medication abortions and 1200 surgical abortions.
Some patients view medication as a less invasive and more natural
procedure and prefer to terminate the pregnancy in the comfort of their
own homes. Medication avoids needles and surgical instruments
inserted into the vagina and cervix, which may be traumatic for victims
of sexual assault. Some patients prefer surgical abortion, as it is
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completed within a few minutes and the patient is surrounded by
physicians and healthcare staff. Occasionally, patients present with
medical conditions that make one method a safer option.
Abortion is a safe medical procedure comparable to other office
gynecological procedures such as endometrial biopsies, intrauterine
device insertions, and cervical cone biopsies. Abortion is a safer
procedure than many office medical procedures, including colonoscopies.
The risk of death from continuing a pregnancy to childbirth is fourteen
times greater than that of an abortion procedure. However, like all
medical procedures, abortion has risks. The risks associated with
medication and surgical abortions advance with every additional week of
gestation.
At the time PPH initiated this suit, it provided surgical abortions at
two facilities in Iowa: Des Moines and Iowa City. It provided medication
abortions at six facilities: Bettendorf (Quad Cities), Ames, Council Bluffs,
Cedar Falls, Burlington, and Sioux City. After the filing of this case,
however, the legislature enacted an appropriations bill that discontinued
the Federal Medicaid family planning network waiver, eliminating
$3,000,000 in federal funds that subsidized family planning services in
Iowa. See 2017 Iowa Acts ch. 174, § 90 (codified at Iowa Code § 217.41B
(2018)). In place of the Federal Medicaid funds, the legislature created a
state-run family planning program and allocated comparable state funds
to assist low-income patients with family planning services. Id.
However, the appropriations bill barred payments to “any entity that
performs abortions or that maintains or operates a facility where
abortions are performed,” including PPH. Id. § 90(3).
Because PPH provides services such as cancer screenings, STI
tests, and contraception to poor and low-income women at little or no
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cost to them, a substantial amount of PPH’s operating budget comes
from reimbursements from Federal Medicaid funds. 1 Due to a
substantial decrease in funding, PPH was forced to close four clinics:
Burlington, Keokuk, Sioux City, and most recently, Bettendorf (Quad
Cities). Therefore, PPH currently operates five clinics in Iowa that
provide abortion care, and only three clinics outside of Des Moines and
Iowa City that provide medication abortions.
B. Informed Consent and Decision-Making Prior to the Act.
Prior to the Act, if a woman decided to terminate her pregnancy, she
contacted PPH and scheduled an appointment. A PPH abortion
appointment has several stages. The patient first undergoes a medical
screening to identify any health risks and potential limitations on the
types of procedures available to the woman. The patient undergoes an
ultrasound to date the pregnancy and then is given the option to view the
ultrasound and have the image described to her. The ultrasound also
confirms that the woman has an intrauterine, rather than ectopic,
pregnancy and ensures there are no anatomical issues that may affect
the procedure. Any patient who expresses an interest in hearing
embryonic heart activity, if any, is given the opportunity to do so. A
majority of patients decline these options.
The patient then has her blood drawn to test her Rh factor and
hemoglobin levels. She answers a series of medical screening questions
that cover her medical, surgical, and obstetrical history. At this stage, a
patient has her vital signs taken and is screened for common conditions
1The funds were never used to pay for abortions, pursuant to federal law. The
“Hyde Amendment” prohibits using federal funds to pay for abortions. See Pub. L.
No. 94-439, § 209, 90 Stat. 1418, 1434 (1976). The provision has been reapproved by
every Congress since 1976. See Consolidated Appropriations Act, 2017, Pub. L.
No. 115-31, Div. H, §§ 506–07, 131 Stat. 135, 562 (attaching the Hyde Amendment).
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such as hypertension and anemia, as well as any other complicating or
prohibitive medical conditions.
Following the medical screening, PPH completes its patient
education process and obtains informed consent from the patient. The
education process ensures the patient understands the risks, benefits,
and alternatives to the abortion procedure. Educators answer all of the
patient’s medical questions, screen for her decisional certainty, and
review the informed-consent document with the patient. Patients receive
information about the different methods, the efficacy of the procedure,
the common risks associated with the procedure and with continuing the
pregnancy, as well as alternatives to the procedure such as parenting
and adoption.
PPH staff are specifically trained to conduct a decisional-certainty
assessment on every patient and ascertain how firm the patient is in her
decision. Educators ask open-ended questions that allow the patient to
open up about her decision to make the appointment, difficulties in
coming to the clinic, and any questions or concerns she has about the
procedure. Patient educators specifically target the patient’s motivations
and assess whether the patient is truly certain in her decision. As part
of the decisional-certainty assessment, educators conduct intimate
partner violence screenings, which inquire into whether the patient is
safe at home, whether the patient has been threatened or coerced into
scheduling the appointment, and whether she has been abused.
Educators discuss the alternatives to an abortion and gauge whether the
patient has indeed considered other options. As well, educators inquire
into whether the patient has discussed the procedure with family,
friends, or mentors, or whether she feels unsafe doing so. Further,
educators look for “affirmative patients,” who speak with affirmations
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such as “it is right for me because . . .” and “I feel it is in the best interest
of my family because . . . .” Educators are trained to spend as much
time as needed with patients in order to completely assess decisional
certainty.
Patients are fully informed of the alternatives to the procedure,
including parenting and adoption. If a patient expresses any interest in
continuing the pregnancy, PPH provides a list of resources for prenatal
care, encourages her to begin prenatal vitamins, and can refer patients to
obstetricians. PPH has resources for parenting assistance, and
educators review all of the information with the patient so she is able to
pursue the resources when she leaves the clinic. If a patient expresses
an interest in adoption, PPH is partnered with an adoption agency that is
willing to travel to meet patients in any PPH health center. If a patient is
interested, PPH will facilitate connecting the patient with the agency or
will provide additional local resources to pursue adoption. Educators
offer patients adoption counseling and can assist patients in creating an
adoption plan.
Following patient education, at least 95% of PPH patients remain
very firm in their decision to have an abortion. If a patient is not certain,
educators speak with her further and help determine the best course of
action for the patient given her individual goals, values, and
circumstances. If a patient is not completely firm in her decision by the
end of the education process, PPH does not perform the abortion and
instead advises her to take more time with the decision. If there are any
signs of coercion, or that the woman feels pressured by another to have
the procedure, PPH does not perform the abortion.
If a patient remains firm following education, the patient then
speaks with a PPH physician. The physician again inquires into the
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patient’s reasons for having the procedure and explains the risks and
benefits of the procedure, as well as the risks and benefits of continuing
the pregnancy. The physician answers any remaining questions the
patient has, as well as ensures the patient is certain in her decision and
free of coercion. After the physician confirms the patient’s informed
consent, the physician will provide the medication or perform the
surgical procedure.
PPH educators complete comprehensive training. Educators
shadow other staff and managers for a period of time and complete seven
interactive modules before they communicate with a patient. Then,
educators begin speaking during sessions that are led by trained staff.
After a period of supervised sessions, educators begin conducting
sessions independently, with trainers periodically listening and
conducting random chart audits. During training, educators will speak
with managers following their sessions and talk about what they
observed, whether there were any emotional cues or red flags, and
whether the woman showed confidence in her decision. Beyond this
training, PPH educators are evaluated annually.
At trial, PPH offered uncontested evidence demonstrating nearly all
patients schedule their abortion appointments after giving considerable
thought to their decision and after making a firm decision. The majority
of questions patients ask during the education phase relate to the
medical procedure itself—usually how to take the misoprostol at home
and when to call the clinic. Jason Burkhiser-Reynolds, the Center
Manager for the Des Moines clinic, testified that in his experience, almost
all patients are firm in their decisions. Burkhiser-Reynolds works with
patients individually and frequently acts as a patient educator. In his
experience, no patient has ever expressed regret, wished she had more
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time, wished she had continued the pregnancy, or believed she was
rushed through the education session. PPH offered expert testimony,
which the State did not contest, that the vast majority of abortion
patients do not regret the procedure, even years later, and instead feel
relief and acceptance.
C. Abortion Landscape in Iowa Prior to the Act. At the time
this suit was filed, Iowa ranked forty-sixth in the nation for obstetrician
and gynecologist (OB/GYN) access for reproductive age women. 2 Sixty-
six of Iowa’s ninety-nine counties do not have an OB/GYN. Only 7.6% of
family medicine physicians perform pregnancy ultrasounds in their
offices. Because a handful of medical practitioners serve large
geographic areas, patients—especially rural patients—must often wait
between two to six weeks to see an obstetrician.
Close to half of all Iowa physicians are employed by hospital
systems. Approximately 40% of Iowa hospitals are affiliated with
Catholic organizations, which prohibit abortion care. Mercy Health
Organization, for example, is a major hospital system in Iowa and
adheres to Catholic medical directives. Physicians practicing at Mercy,
or another Catholic-affiliated hospital, may not participate in or facilitate
abortion services or permanent sterilization. “Facilitation” contemplates
any action that makes an abortion possible, including faxing patient
information to an abortion provider.
PPH performs abortions two or three days a week at its busiest
centers. At other centers, abortions are performed one day a week or
less. Staff availability and resources determine the schedule. Prior to
2Since the filing, Iowa has fallen to forty-ninth, with only 1.49 practicing
OB/GYNs per 10,000 women. William F. Rayburn, The Obstetrician–Gynecologist
Workforce in the United States 54 (Am. Cong. of Obstetricians & Gynecologists 2017).
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the Act at issue, PPH was able to schedule a patient seeking an abortion
within one or two weeks.
Many Iowa women struggle to obtain the procedure of their choice
or a procedure at all due to various constraints. First, both medication
and surgical abortions are only available during certain windows of a
woman’s pregnancy. An uncontested provision of the Act imposes a ban
on surgical abortions upon the twentieth week of pregnancy. In the past
year, PPH performed fifty surgical abortions on women who were within
two weeks of the twenty-week cutoff. PPH performed 600 medication
abortions on women who were within two weeks of the ten-week cutoff
for medication abortions.
There are many reasons women have second trimester or otherwise
late-in-window procedures. Most women are not aware of a pregnancy
until at least five weeks since their last menstrual period. Some forms of
contraception can mask the symptoms of pregnancy, which delays
women from discovering a pregnancy by days or weeks. Some patients’
life circumstances change drastically between discovery and the decision
to terminate. A patient may have lost her job, ended the relationship
with her partner, or lost a support system. Significantly, almost no fetal
anomalies can be diagnosed until the second trimester when prenatal
screening is conducted. Usually, an anatomical ultrasound is not
performed until the eighteenth or twentieth week of pregnancy. Thus,
some women may not be alerted to a problem until the second trimester,
and by the time they have spoken with physicians and made the difficult
choice to terminate, they may be very close to, or beyond, the twenty-
week cutoff.
Second, poverty plays a significant role in a woman’s ability to
terminate an unplanned pregnancy. As noted, more than half of PPH’s
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patients live below 110% of the federal poverty line and many more live
below 200% (low income). Nationally, 49% of women seeking an abortion
live in poverty, and another 26% are low income. Half of all people living
at or below the poverty line have a disability. Women at or near the
poverty line have higher rates of unintended pregnancy and abortions
than the population as a whole.
Women who wish to have an abortion must not only pay the cost of
the procedure, but also any collateral costs such as transportation, child
care, lodging, and subsequent medical costs. Hourly and low-wage
workers are unlikely to have paid sick or vacation days and, thus, will
incur lost wages for any time taken off for the procedure. Poor and low-
income families do not have savings, so in order to incur emergency
health expenses, they must make hard decisions about leaving bills
unpaid or taking on more debt. Many families in this situation rely on
alternative financial services, such as payday loans, to finance
emergency health costs. Financial hurdles can be extraordinary, and
many women are delayed in obtaining the procedure simply due to the
time it takes to tap their resources, determine how much money they can
raise, arrange for time off work, and find child care. For example, a
study 3 conducted by Dr. Deborah Karasek in Arizona just before a
twenty-four-hour mandatory delay law was put into effect found the
majority of patients opted to forego or delay food, rent, child care, or
another essential financial cost to pay for the procedure.
Third, Iowa women must travel significant distances to a PPH
clinic. Approximately 35% of surgical patients and 25% of medication
3PPH offered several studies during trial to establish the factual basis for its
claims. The studies were not admitted as exhibits but, rather, read from the witness
stand as learned treatises. See Iowa R. Evid. 5.803(18).
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patients in Iowa travel more than fifty miles to their needed clinic. 4 Both
figures are far greater than the 17% of women nationally who drive more
than fifty miles one way to receive an abortion. Indeed, in 2008, the
national median distance traveled to an abortion clinic was fifteen miles.
Thus, women in Iowa travel much farther than the average patient to
receive an abortion, which requires greater resources and support.
Fourth, victims of domestic violence and sexual assault also face
significant barriers to obtaining an abortion. The Centers for Disease
Control and Prevention (CDC) estimates one-fifth of women in the United
States are raped during their lifetime. The CDC also estimates 31.3% of
Iowa women have experienced rape, physical violence, and/or stalking by
an intimate partner in their lifetime. Victims of domestic violence and
sexual assault are disproportionately low income.
Reproductive coercion is also observed. This is a form of domestic
violence that involves coercive behavior over a woman’s reproductive
health. Abusers understand a woman is less likely to leave the
relationship if she has a child. Abusers may forcibly impregnate women,
refuse to wear a condom, or manipulate contraception in order to further
their control and dominance. Between 4% and 8% of all pregnant
4At trial, the parties disputed how many patients live within fifty miles of their
needed clinic. PPH expert Dr. Daniel Grossman concluded that 47% of surgical
patients, and 44% of medication patients live more than fifty miles from their needed
center. The State challenged this data, alleging Dr. Grossman erroneously (1) included
women who traveled from out of state in his calculations; (2) included surgical patients
who live within fifty miles of any PPH clinic, as they could receive an initial appointment
at a closer clinic; and (3) excluded Region 14, which includes the City of Davenport and
the then-existing Bettendorf clinic, as a region where women live within fifty miles of a
surgical center. On our review, we agree with the State that the scope of this suit is
limited to Iowa, and thus, we have removed out-of-state women from Dr. Grossman’s
calculations. However, we find that Dr. Grossman properly sought to determine how
many women live more than fifty miles from their needed clinic. As well, Dr. Grossman
properly excluded Region 14, as a significant part of the region was outside the radius
of Iowa City, the closest surgical center.
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women report experiencing physical abuse during pregnancy.
Significantly, women face an increased risk of homicide during
pregnancy.
Battered and abused women are often carefully monitored by their
abuser. In order to maintain control, abusers check the mileage on the
woman’s car, nail doors and windows shut, and call the woman at home
or at work multiple times during the day. Abusers often check insurance
claims and credit card statements, so a victim of domestic violence may
need to obtain cash to pay for the procedure. Abusers limit
communications to family and friends, so a woman may not have access
to people who can loan money or provide transportation. Victims of
domestic violence also must keep the pregnancy and decision to
terminate a secret from their abusers, so women must manage to
overcome all of the above hurdles as quickly as possible, before the
symptoms of pregnancy become visible. Managing to go to a doctor’s
appointment or clinic in secret, even for a single visit, therefore requires
significant planning and resources.
As well, victims of sexual assault and incest have unique interests
in terminating a pregnancy as quickly as possible, as well as heightened
confidentiality concerns. Many rape and incest survivors are extremely
distraught, and a pregnancy serves as a constant physical reminder of
the assault. For many, termination is an important step in the recovery
process. Further, many rape and incest survivors are afraid of disclosing
the event to friends and family. Thus, preserving confidentiality and
securing the procedure without discovery is paramount.
In sum, women in Iowa face significant obstacles in procuring an
abortion. There is scarce OB/GYN access. A majority of PPH patients
lives in poverty and must somehow gather the resources to obtain the
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procedure, women must travel significant distances to the nearest clinic,
and women who are victims of domestic violence or assault face
additional barriers beyond those imposed by distance and poverty.
D. Senate File 471. On May 5, 2017, Governor Branstad signed
into law Senate File 471. The statute was passed with “the intent of the
general assembly to enact policies that protect all unborn life.” 2017
Iowa Acts ch. 108, § 5. It contains two distinct directives. Division I
creates new prerequisites for physicians providing an abortion, and
Division II bars performing abortions upon the twentieth week of
pregnancy unless the woman’s life is in jeopardy. Id. §§ 1–2. PPH only
challenges Division I.
The Act requires physicians “performing an abortion [to] obtain
written certification from the pregnant woman” that she has completed a
number of steps at least seventy-two hours prior to the procedure. Id.
§ 1. Accordingly, at least seventy-two hours before an abortion
appointment, the woman must obtain certification:
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.
20
(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.
Id.
The Act permits physicians to perform an abortion without prior
certification (1) “to save the life of a pregnant woman,” (2) “in a medical
emergency,” or (3) if “in the physician’s reasonable medical judgment [it]
is designed to or intended to prevent the death or to preserve the life of
the pregnant woman.” 5 Id. For purposes of the Act, an abortion is
performed in a “medical emergency” when the procedure is performed
to preserve the life of the pregnant woman whose life is
endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical
condition caused by or arising from the pregnancy, or when
continuation of the pregnancy will create a serious risk of
substantial and irreversible impairment of a major bodily
function of the pregnant woman.
Id. § 2(6). Any physician who violates these provisions may have his or
her license suspended or revoked pursuant to Iowa Code section 148.6
(2018). Id. § 4.
E. Informed Consent and Decision-Making Under the Act.
1. Certification. The Act requires a patient be informed of a
number of things at least seventy-two hours before the scheduled
procedure. PPH has provided the following uncontested evidence
detailing what complying with the certification requirements actually
entails in practice.
The standard of care in obstetrics and gynecology is not to perform
an ultrasound until the twentieth week of pregnancy. Patients do not
5Sincethe filing of this suit, the legislature has amended this provision. The Act
now provides that an abortion may only be provided without prior certification in a
medical emergency. 2018 Iowa Legis. Serv. S.F. 359 (West 2018) (West No. 133).
21
simply schedule ultrasound appointments for the purpose of dating a
pregnancy. Rather, patients contact an obstetrician, establish they are
obtaining prenatal care, and then an ultrasound is performed at certain
junctions in the pregnancy when it would provide the most valuable
information.
Accordingly, obtaining certification is not as simple as making an
ultrasound appointment, as PPH and many other healthcare providers do
not currently allow early pregnancy patients to schedule only an
ultrasound. Indeed, it is PPH’s policy to perform and evaluate
ultrasounds only for patients coming to the clinic for abortion care.
Under the Act, a patient will have to request that PPH (or a local clinic,
the feasibility of which is discussed in greater detail below) schedule a
specific preabortion certification appointment in order to obtain an
ultrasound. PPH acknowledges that it will begin scheduling patients for
preabortion certification appointments should the Act be put into effect,
although it is contrary to the standard of care.
As well, the Act requires that patients be informed of “indicators,
contra-indicators, and risk factors” in light of their specific medical
history. Thus, women will have to have blood drawn and analyzed, as
well as provide full medical histories and have them reviewed, before a
physician can assess the potential risks of the procedure. Unlike PPH,
most obstetricians in Iowa do not have lab facilities in their offices, so a
patient’s blood would have to be drawn and then sent away for analysis.
Or, the patient would have to first visit the obstetrician to receive lab
orders then go herself to a different phlebotomy clinic for the blood
screening. Of course, these steps would need to be completed before she
has the initial appointment during which the physician analyzes her
medical status and history and informs her of the risks of an abortion. If
22
a patient went to PPH for an appointment, the entire certification process
could be completed in one visit. However, Dr. Jill Meadows, PPH’s
Medical Director, testified that, in order to schedule double the
appointments, women would be required to wait one to two weeks
between the certification and abortion appointments.
Finally, during the certification appointment, the woman will be
provided materials drafted by the department of public health. PPH
offered uncontested evidence that the materials contain medically
inaccurate information. For example, the materials state that medication
abortion is “usually” performed within forty-nine days of the last
menstrual period, when, in fact, it is very commonly performed up to
seventy days from a patient’s last menstrual period. Indeed, the
gestational range specified in the FDA-approved label for mifepristone is
up to seventy days. Additionally, the materials state that a surgical
abortion “takes about thirty minutes,” when in actuality the procedure
usually takes between five and ten minutes. As well, the materials
inform patients that surgical abortions involve “scrap[ing] the walls of the
womb,” but most providers, including PPH, do not perform the procedure
this way. Dr. Meadows testified that, as a whole, the department’s
materials overstate the complexities and risks of abortions and
understate the availability of the procedure.
2. Decisional certainty in abortion patients. At trial, PPH’s
witnesses discussed several studies of mandatory delay laws enacted in
other states and offered significant evidence relating to the decisional
certainty of abortion patients.
A centerpiece of both PPH’s and the State’s arguments is a study
authored by Dr. Sarah C.M. Roberts. The Roberts study was conducted
23
in Utah after the state implemented a 72-hour waiting period. 6 The
study surveyed 500 Utah women at four family planning facilities who
attended an informational abortion appointment pursuant to the
mandatory delay law. The researchers attempted to follow up with the
women sometime afterwards to see whether the patients obtained an
abortion. The researchers were able to follow up with 309 of the 500
women.
Of the 309 women, twenty-seven reported they were no longer
seeking an abortion. Of these women, eleven entered their appointments
with the intention of continuing their pregnancy. Nine women entered
their appointments “somewhat or highly conflicted” about their decisions
and had not yet decided whether to have the procedure. Seven women,
or 2% of the 309, entered their appointments certain in their decision to
have the abortion and then, following patient education, changed their
minds and decided to continue their pregnancy. The authors of the
study noted that in states without mandatory delay laws, between 1%
and 3% of patients similarly enter their appointments certain in their
decision and, after the patient education process, decide to continue
their pregnancies and forego the procedure. Accordingly, in the Roberts
study, the authors found the 72-hour waiting period had no effect on the
number of women who changed their minds from being certain in their
decision to have an abortion to deciding to continue their pregnancy.
The State urges that, in the Roberts study, the “most common
reason [for still being pregnant at follow up] given was that the woman
6At the time of the study, the Utah law differed from the Act in some respects.
Significantly, the Utah law did not require a patient to have an ultrasound and a
physician could complete the certification via telemedicine. Further, Utah waived the
72-hour waiting period for victims of rape and incest and patients younger than fifteen
years old. See Utah Code Ann. § 76–7–305 (West, Westlaw through 2018 Gen. Sess.).
24
‘just couldn’t do it.’ ” Therefore, the State argues, the mandatory delay
will ensure that women are given sufficient time to consider the weight of
their decision without the influence of providers “who may encourage
women who are conflicted to go through with the procedure as quickly as
possible so as not to lose a fee.”
There is, however, no evidence in the record that PPH has ever
pressured a patient to undergo an abortion simply to collect a fee.
Furthermore, in the Roberts study, thirty-four women were still pregnant
when the researchers followed up with them. Twenty-seven opted to
continue their pregnancies, six were still waiting for their appointment,
and one woman was prevented from having an abortion because the
delay pushed her beyond the clinic’s gestational limit. Of the thirty-four
women, eighteen reported they “just couldn’t do it.” Twenty women
entered their appointments either intending to continue their
pregnancies or conflicted in their decisions. PPH’s witnesses explained
that under PPH’s same-day regime, all twenty women would have been
given more time to consider their decision, and the eighteen who opted to
remain pregnant would have similarly reported they “just couldn’t do it.”
Beyond the Roberts study, PPH offered a number of additional
studies related to decisional certainty in abortion patients. Dr. Mary
Gatter conducted a study in Los Angeles that analyzed roughly 16,000
same-day abortion appointments where patients were given the option of
viewing the ultrasound. In the study, 99% of women who declined to
view the ultrasound went on to have the procedure and 98.4% of women
who opted to view the ultrasound went on to have the procedure.
Indeed, the slight association between voluntary viewing and continuing
the pregnancy was only present among the 7% of women who reported
being conflicted about their decision upon arrival.
25
PPH’s expert, Dr. Daniel Grossman, explained the study drew no
conclusion about whether patients were actually influenced by viewing
the ultrasound or whether conflicted patients chose to see the
ultrasound so they could be pushed toward not having the procedure.
He testified the study never concluded that viewing an ultrasound
caused uncertain patients to continue with their pregnancy.
Furthermore, the Gatter study did not gather data relating to the impact
of mandatory delays on patient decision-making, as California does not
have a mandatory delay statute.
Dr. Kari White conducted a study in Alabama in 2013. The study
reviewed de-identified billing data from two of the five abortion clinics in
Alabama while the state’s 24-hour mandatory delay law was in effect.
The study showed that 18.8% of women did not return to either of the
two clinics for a procedure. Dr. Grossman, a coauthor of the study,
testified the researchers exclusively reviewed billing data and did not
attempt to discern why the women did not return. Further, he testified it
was possible that some or all of the women went to another clinic or went
out of state for their procedure. Additionally, the study did not assess
decision-making. On cross-examination, the State expressly confirmed
that, in the study, “there’s no attempt to say why. Nobody is asking why
they didn’t return, so we’re not talking about that question.” PPH’s
witnesses clarified that the Alabama study did not find that 18.8% of
women did not go through with the abortion, nor did it assess the causal
relationship between the waiting period and the decision whether to
proceed with an abortion.
PPH additionally offered a second Utah study, authored by
Dr. Jessica N. Sanders. The Sanders study has two parts. First, the
researchers reviewed abortion statistics following the increase from a 24-
26
hour delay to a 72-hour delay. Second, researchers reviewed a
questionnaire completed by 307 women upon arrival at their procedure
appointment. In the first part of the study, the researchers reviewed
data and found that 80% of patients returned for their procedure when
the 24-hour delay was in effect, and 77% returned when the 72-hour
delay was in effect. The authors of the study explained that the first
portion of the study was not designed to discern the reasons why the
women did not return for their procedure. On cross-examination, the
State confirmed the researchers never spoke to the women who did not
return. PPH’s witnesses explained the study therefore could not, and did
not, determine whether the women were prevented from returning or
decided not to return.
Dr. Lauren J. Ralph conducted a study that reviewed a sample of
women seeking an abortion and compared two different measures of
decisional certainty. The study found abortion patients were as or more
certain of their decision than patients presenting for other procedures,
including mastectomies after a breast cancer diagnosis, reconstructive
knee surgery, and prostate cancer treatments.
Dr. Corinne Rocca authored a study that observed a cohort of
women receiving first and late second trimester abortions at thirty
facilities across the United States. The researchers conducted interviews
shortly after the women had their procedure and then conducted
interviews every six months for up to three years after the procedure.
The researchers concluded the typical participant had an over 99%
chance of reporting the decision to terminate her pregnancy was right for
her at the follow-up interview.
Finally, Dr. Grossman conducted a study in Texas while a 24-hour
mandatory delay law was in effect. The researchers surveyed patients’
27
decisional certainty prior to their initial informational visit, which
included an ultrasound, and after the visit. The study found that 92% of
women were sure of their decision prior to their initial appointment.
Following the consultation visit and ultrasound, 92% of women reported
being sure of their decision.
PPH also offered the expert testimony of three physicians and a
PPH health center manager. Dr. Meadows has treated over 10,000
abortion patients. She testified that it is her opinion, based on her
interactions and discussions with thousands of patients, that the Act will
not impact patient decision-making. She testified patients uniformly give
the decision considerable thought before contacting the clinic and PPH
educators are trained to discern which patients are insecure in their
decisions or may be under duress.
Dr. Susan Lipinski is an OB/GYN in Waterloo. Although she does
not perform elective terminations, she regularly counsels women who are
undecided about their pregnancies and performs terminations when the
health or life of the mother is at risk. She testified that patients are the
best judge of whether they are ready to initiate treatment and physicians
respect patient autonomy. She further testified that, in her experience,
patients would not benefit from taking an additional seventy-two hours
to reflect on their already-made decision.
Dr. Grossman is an OB/GYN professor at the University of
California, San Francisco. His clinical work focuses on outpatient
OB/GYN, including family planning and abortion care. He performs first
and second trimester abortions, both medication and surgical. Based on
treating thousands of patients, as well as his own research, he testified
that the 72-hour delay would not enhance patient decision-making.
28
Finally, Burkhiser-Reynolds testified about his experiences
working with abortion patients at the Des Moines PPH center. In his
experience, nearly all patients arrive at their appointments having
thoroughly researched and considered their decision. He testified that
close to all patients have already considered other alternatives prior to
their appointment. Further, he testified that almost all patients are firm
in their decision to have an abortion and very rarely is a patient
uncertain following the patient education process.
F. Abortion Landscape in Iowa Under the Act. PPH offered
additional evidence to support its claim that the Act creates unnecessary
barriers to accessing abortion in Iowa. We therefore proceed to consider
the evidence offered to demonstrate the Act’s likely ramifications for Iowa
women seeking to have an abortion.
1. Obtaining certification. Facially, the Act does not require women
to obtain certification from the same clinic or provider that ultimately
performs the procedure. The State posits that women could obtain
certification from a local provider for little or no additional cost. In
response, PPH has offered evidence that Iowa women cannot easily
obtain certification from a non-PPH provider.
At the time this suit was filed, Iowa ranked forty-sixth in the
nation in OB/GYN access for reproductive-age women. To obtain a
diagnostic test, such as an ultrasound, patients normally must schedule
an appointment and establish a patient–doctor relationship. Due to the
severely limited number of providers in Iowa, many obstetricians are
booked several weeks or months in advance.
Most local clinics with family medicine physicians do not have the
capacity to perform an ultrasound that includes audible heart tones.
Patients seeking certification would have to first schedule a family
29
medicine appointment, meet with the physician and inform the physician
of her desire for an abortion, 7 and then be referred to a radiology center
or hospital. Radiology centers and hospitals generally do not perform the
type of limited ultrasound used in abortion screenings out of fear of
liability for missing a potential defect. Thus, these facilities would
require the patient to undergo a more expensive and comprehensive
ultrasound.
Radiology centers often do not have a radiologist available in
person and, instead, use technicians to perform the ultrasounds. The
patient would therefore have to wait again to have a radiologist review
the images, which could take hours or days. Once a patient obtains an
ultrasound and certification from a local clinic, the facility would need to
send the records to PPH, which takes additional time. Many hospitals
decline to perform the certification ultrasound altogether due to religious
medical directives.
PPH witness Dr. Jane Collins, a poverty expert from the University
of Wisconsin, Madison, offered testimony on the difficulties of obtaining
certification from a non-PPH provider. To illustrate, Dr. Collins provided
the steps hypothetical patients in Ottumwa and Sioux City would need to
take in order to comply with the Act and obtain certification from a non-
PPH clinic.
The State offered Dr. Collins a list of twenty-six local providers a
woman in Ottumwa could visit to receive an ultrasound and obtain
certification. After excluding duplicate entries and multiple practices at
the same center, Dr. Collins narrowed the options to three facilities,
which she then contacted. The first facility did not provide pregnancy
7PPH urges that this disclosure jeopardizes a patient’s confidentiality,
particularly in small, rural towns.
30
ultrasounds. The second facility only performed pregnancy ultrasounds
on its own patients. Thus, a woman would need to first travel to the
clinic and pay for a new patient visit before having an ultrasound. A new
patient visit costs $199 and the ultrasound costs $235. The third facility
required a referral from a physician and only used technicians to perform
ultrasounds. The image would be sent off-site to a radiologist for an
additional, unknown fee, and the woman would wait an unknown period
of time before getting her results. An early pregnancy ultrasound at the
third facility costs $267, while a later first trimester ultrasound at this
facility costs $621.
For the Sioux City patient, the State provided Dr. Collins with a list
of ninety-one local providers. After eliminating duplicates and religious
facilities, Dr. Collins narrowed the options to just four providers, which
she then contacted. The first facility’s technician is not qualified to read
the ultrasound image. Because the Act requires the woman to have the
image described to her, she could not obtain certification from the
facility. The second facility does not accept referrals from an abortion
provider, nor does it accept referrals for merely an ultrasound. The third
facility requires a referral from a physician within its network. The
fourth facility only provides pregnancy ultrasounds for preexisting
patients.
Evidence was also offered on the ability of women to obtain
certification from crisis pregnancy centers (CPCs). This evidence
indicated these centers seek to counsel women with unplanned
pregnancies toward parenting or adoption. CPCs are generally not
licensed medical providers and are not required to comply with federal
privacy protections governing health information. PPH offered evidence,
which the State did not dispute, that CPCs frequently misinform women
31
about abortion. For example, many CPCs inform women that abortions
increase the risk of breast cancer, despite studies adduced by the
American College of Obstetricians and Gynecologists dispelling any
association. Dr. Meadows testified that, in her experience, she has
worked with patients who received ultrasounds at CPCs who were
informed they were weeks or months further along in their pregnancies
than they actually were.
Thus, the evidence showed women could incur prohibitive costs
and delays under the Act if they sought certification from a local
provider. In order to comply with the Act, evidence showed PPH patients
will be required to make two trips to a PPH clinic: one for a preabortion
certification appointment and another for the procedure.
2. Financial burden of a second visit. PPH offered additional
evidence relating to the financial resources needed to attend two
appointments to comply with the Act.
More than half of PPH patients live in poverty and many more are
low income. Dr. Collins offered testimony demonstrating what women in
poverty must overcome to obtain an abortion under the Act.
In 2017, a single person earning $12,060 a year or less lived below
the federal poverty line. If a woman is married or has a child, an income
of $16,240 or less placed her below the federal poverty line. Dr. Collins
provided a sample monthly budget representing the average monthly
expenditures of the typical PPH abortion patient: living at or below the
poverty line with one child. The budget assumes the patient receives all
available social services.
32
Sample Monthly Budget:
-$845: rent
-$200: car payments and related expenses
-$150: utilities
-$212: food after receiving $100 in SNAP benefits
-$248: childcare after $401 subsidy
-$ 50: telephone service
-$ 30: medical co-pays after Medical Assistance
-$ 50: personal care and household care items
+$323: Federal and State Earned Income Tax Credit
Total: $1,462 per month, exceeding the family’s
monthly income.
The sample budget demonstrates that, even with taking advantage
of all available social services, half of all PPH patients live day-to-day
with no savings and an increasing amount of debt. Importantly, the
budget does not include the costs of clothing, furniture, school fees,
cable or Internet, books, children’s toys, or any debt repayment. Thus,
to care for themselves and their children adequately, women must
realistically spend more than Dr. Collins’s budget.
After Texas implemented a 24-hour mandatory delay, patients
incurred an average of $141 to pay for the second clinic visit. When a
woman living in poverty faces an unplanned pregnancy, she does not
have any savings to fall back on and must make difficult decisions about
whether to leave bills unpaid or assume debt. Additional expenses of
twenty or fifty dollars are substantial for women in poverty who simply
do not have the funds at their fingertips.
Poor and low-income women are unlikely to have access to paid
sick days or personal days and will suffer lost wages when taking time
away from work. Scheduling time off work is difficult for hourly
employees, and taking time off twice in two weeks may be very difficult.
Indeed, many employers require patients to produce a doctor’s note to be
33
excused from multiple days of work, which compromises poor women’s
abilities to keep the procedure confidential.
Transportation poses another collateral expense, especially for
rural Iowans. Dr. Collins again used the hypothetical Ottumwa and
Sioux City patients to illustrate the expected transportation costs of an
additional visit to a PPH clinic. Dr. Collins offered two scenarios for each
patient: one in which the patient has access to a vehicle and another
where the patient must rely on public transportation.
The Ottumwa patient’s closest PPH clinic is in Des Moines. The
distance from Ottumwa to Des Moines is 84 miles one way, or 168 miles
round-trip. Using the average mileage per gallon of vehicles available to
low-income women and the average price of gasoline, the Ottumwa
patient with access to a vehicle incurs $20.16 in travel costs and three
hours of travel time. Using the minimum wage and the average cost of
child care for low-income women, the patient incurs $36.25 in lost wages
and $25 in child care costs. The total cost of the additional appointment
is $81.41.
The Ottumwa patient without a vehicle has a far more difficult
road ahead of her. The only bus from Ottumwa to Des Moines leaves at
4:05 p.m. and arrives in Des Moines at 5:35 p.m., after the PPH clinic
has closed. Yet, the only bus from Des Moines to Ottumwa departs at
8:55 a.m., before the PPH clinic opens. Thus, the woman must spend
two nights in Des Moines. Round-trip bus fare costs $60 and two nights
in a budget motel costs $148. The woman incurs $174 in lost wages. A
woman cannot leave her child in daycare for three days, so she either
must bring the child with her or arrange for a friend or family member to
care for the child. The total cost of the additional trip for the Ottumwa
patient without a vehicle is $382.
34
Dr. Collins used a different factual scenario for the Sioux City
patient. The Sioux City patient, like many PPH patients, is eight weeks
pregnant when she contacts the clinic. Because PPH estimates a one- to
two-week delay in appointments under the Act, the patient is able to
travel to Council Bluffs, the closest clinic, for the initial appointment
within the ten-week medication window, but is unable to schedule the
procedure in that window. Thus, the Sioux City patient must travel to
the nearest surgical center, Des Moines, for the additional appointment.
The distance one way from Sioux City to Des Moines is 200 miles,
or 400 miles round-trip. Using the same average costs for low-income
women as above, the Sioux City patient with access to a vehicle incurs
$48 in travel costs, $58 in lost wages, and $50 in child care. The total
cost of the additional trip is $156.
The Sioux City patient relying on public transportation also has a
difficult road ahead of her. The patient takes a bus from Sioux City to
Council Bluffs and then another bus from Council Bluffs to Des Moines,
arriving at 10:55 p.m. She spends the night in a budget motel and has
the procedure the following day. The bus to Council Bluffs departs at
11:15 p.m. and arrives a little after 1 a.m. She spends the night in
Council Bluffs and, a little after 6 a.m., boards the bus to Sioux City and
arrives at 7:50 a.m. The patient incurs $125 in bus fare, $148 in lodging
costs, and $174 in lost wages. The total cost of the additional
appointment for the Sioux City patient without a vehicle is $447.
Dr. Collins testified that confidentiality and ethical rules prevent
researchers from simply surveying the population and asking about
private abortion decisions. She explained that researchers could not go
door-to-door, or use a broad survey, and simply ask women if they
desired an abortion in the last year but could not obtain one. Data is
35
instead collected by requesting permission to be interviewed from women
who arrive at clinics for an abortion. PPH, therefore, cannot quantify the
exact number of women in Iowa who presently face certain barriers to
accessing abortion care because that type of studying simply is not done.
Instead, Dr. Collins stressed that every year 2000 women who live in
poverty seek abortions in Iowa. Those 2000 women live within the
financial constraints explored above and do not have spare funds at their
disposal.
PPH has offered evidence that gathering financial resources takes
time, including asking for days off work, asking family and friends for
financial assistance, researching transportation options, and finding
child care. Furthermore, PPH offered evidence that the Act will, in fact,
require women to raise additional funds, in some instances double the
funds, to pay for the additional trip. Thus, the Act will not only
considerably increase the cost of an abortion in Iowa, but will also cause
a meaningful number of Iowa women to delay their procedure in order to
amass the greater resources needed to obtain an abortion.
3. Other burdens. Evidence was also presented on the additional
burdens imposed by the Act beyond financial hardships.
a. Prevent abortions. PPH argues the Act will prevent some Iowa
women from having an abortion. Its prevention argument is two-fold.
First, the mandatory waiting period will delay women who present for an
abortion later in their pregnancies beyond the twenty-week cutoff,
thereby denying them the choice of having the procedure. Second, the
increased cost of the procedure will be prohibitive for some women,
causing them to forego the procedure entirely.
The evidence revealed many reasons women present for an
abortion close to twenty weeks into their pregnancy. Many fetal
36
anomalies or medical conditions are not diagnosed until eighteen or
twenty weeks into a pregnancy, resulting in a narrow window for women
to obtain an abortion. In the past year, PPH saw fifty patients who were
between eighteen and twenty weeks pregnant when they presented for
their procedure. Based on this figure, PPH maintains that should these
fifty women be required to comply with the Act, some or all will be
delayed and pushed beyond the twenty-week cutoff.
Dr. Meadows testified that, should a patient’s circumstances allow
it and a clinic has an available appointment, it is possible for a patient to
be seen in three or four days, rather than one or two weeks. However,
she cautioned that such an instance would be an exception, as PPH
clinics do not have the capacity to schedule double the appointments
without delaying women by one or two weeks. It is therefore unlikely
that all fifty women could schedule two appointments before the twenty-
week cutoff.
In the Roberts study, the 72-hour delay pushed one woman
beyond her clinic’s gestational limit, preventing her from having an
abortion. Utah’s certification requirements were less onerous than the
Act, as the certification visit could be completed through telemedicine,
did not require an ultrasound, and had exceptions for rape victims,
incest victims, and patients under the age of fifteen.
PPH relies on studies to demonstrate the impact of the Act’s
logistical requirements. In the Sanders study, 62% of women reported
the additional delay affected them negatively. Of those women, close to
half had to take extra time off work and 15% missed an extra day of
school. Forty-seven percent reported lost wages, 18% reported extra
child care costs, 30% reported increased transportation costs, and 27%
reported additional expenditures and lost wages by a family member or
37
friend. In Dr. Grossman’s Texas study, 23% of women experienced
difficulties in getting to the clinic for the consultation appointment. In
the study’s multivariable analysis, women below the federal poverty line
were significantly more likely to report difficulties in getting to the clinic.
The actual costs of an additional appointment vary significantly
among studies. Patients paid an average of $44 in Utah and $141 in
Texas for the additional appointment.
b. Prevent medication abortions. Evidence was also submitted to
show the Act would cause some women who prefer medication abortions
to be delayed beyond the ten-week cutoff and thereby deny women a
meaningful choice about their healthcare. In the past year, 600 patients,
or 27% of medication patients, presented for a medication abortion
within two weeks of the ten-week cutoff for the procedure.
Dr. Grossman conducted a study on medication abortions in Iowa.
In the study, 71% of Iowa women reported having a strong preference for
medication abortion. Ninety-four percent of Iowa women expressed that
having the procedure as early as possible was very important to them.
Additionally, Ted Joyce, a professor of Economics at Baruch
College, conducted a study on the impact of Mississippi’s 24-hour
mandatory delay law. The study reviewed vital statistics and compared
Mississippi women whose nearest clinic was located within the state with
Mississippi women whose nearest clinic was located out of state. After
the mandatory delay law was placed into effect, the rate of second
trimester abortions increased 53% among women whose closest clinic
was located within the state. Yet, there was only an 8% increase in
second trimester abortions among women whose closest clinic was out of
state. The authors concluded that, as more states implement mandatory
38
delay laws with in-person counseling requirements, the number of
abortions performed later in women’s pregnancies would increase.
Dr. Sharon Dobie authored a study that compared abortion rates
of rural and urban women in Washington during a period when several
abortion providers closed. The study found that, after the closings, 73%
of rural women traveled more than fifty miles to obtain an abortion.
Among those women, there was a significant increase in later abortions,
which was not present among urban patients. Indeed, following the
closings, the proportion of rural women who had abortions at eighteen
weeks into their pregnancy or later doubled.
c. Increased medical risks. Evidence was also presented to show
the Act exposes women to increased medical risks. While abortion is a
safe procedure and, in fact, safer than many office medical procedures,
the risk of failed or incomplete medication abortion increases with
advancing gestational age. The risks of surgical abortions also increase
with gestational age, even week by week. A second trimester abortion is
eight to ten times riskier than a first trimester abortion.
Dr. Grossman explained that when women do not have access to
abortion care, they do not universally decide to continue with their
pregnancies. Rather, some women attempt to take matters into their
own hands to terminate their pregnancy, at great risk to their own health
and safety. He further testified about his research in Texas where he
conducted in-depth interviews with eighteen women who reported
attempting to self-induce an abortion. The primary reason women were
pushed to self-induce was barriers to accessing clinical care. The women
reported having insufficient funds to travel to the clinic, having to travel
long distances, and other collateral costs, and these barriers all
contributed to their decision to self-induce.
39
In its amicus brief, the American College of Obstetricians and
Gynecologists discussed a 2016 study of Iowa clinics that inquired into
self-induced abortions in Iowa. The study found that 30% of Iowa
women surveyed had investigated options for clandestine home use of
misoprostol, and 8.6% reported prior attempts to self-induce.
d. Harm to domestic violence and assault victims. Evidence was
also presented to show that domestic violence and sexual assault victims
would be harmed by the Act’s requirements. Abused women are often
carefully monitored by their abusers and an additional trip, therefore,
places them at an even greater risk of discovery. Further, abusers often
limit communications with a woman’s friends and family and sometimes
even limit employment options, so abused women already have a difficult
time raising funds for a procedure. The prospect of raising additional,
potentially double the funds without detection may well be impossible.
PPH stresses that domestic violence is a medical issue. Women
who are pregnant are at an increased risk of homicide. Women who are
discovered attempting to have an abortion are at an increased risk of
physical and emotional abuse. By delaying a victim’s abortion until a
second appointment, PPH argues the Act subjects women to an increased
risk of violence, despite a physician’s medical judgment that performing
an abortion at the first visit is the safest time for the patient.
In her study of intimate partner violence among abortion clinic
populations, Dr. Audrey F. Saftlas surveyed 986 women seeking an
abortion in Iowa. The Saftlas study found that 13.8% of the women
experienced physical or sexual abuse in the last year, and 10.8%
experienced intimate partner abuse in the last year. In the Roberts
study, 26% of women who spent their own money on the abortion had to
tell someone else they were spending it. Of these women, 77% had to tell
40
the man involved in the pregnancy, a boyfriend, or a partner about the
expenditure. In the Sanders study, 62% of women indicated the 72-hour
delay negatively affected them. Of those women, one-third reported
having to tell someone about the procedure they would not have told if
the delay was only twenty-four hours.
With respect to sexual assault victims, PPH urges that the
mandatory waiting period will cause additional psychological harm. A
pregnancy that results from rape or incest is a constant reminder of the
assault, which is traumatizing for victims. Furthermore, requiring
victims to arrange to be away from work, school, or family obligations
twice will increase the risk of discovery, jeopardize their privacy, and
place them at risk of further emotional harm. Unlike other similar
statutes, the Act does not have an exception for rape victims.
G. District Court Decision and Positions on Appeal. Following
the two-day trial, the district court considered the offered evidence and
found the percentage of Iowa women who may change their minds and
decide to continue their pregnancies due to the waiting period “may be at
least eight percent” or higher. The court based this figure on the Roberts
Utah study, the Gatter Los Angeles study, the White Alabama study, and
the Sanders Utah study. The court ultimately found that a “measurable
number of women” may change their minds and the Act’s burdens did
not amount to a substantial obstacle for women seeking an abortion.
Therefore, the court found the Act did not violate the due process clause.
The court similarly rejected PPH’s equal protection claim.
On appeal, PPH argues that the district court’s factual conclusions
are unsupported by the record. PPH maintains the Act imposes severe
difficulties on women seeking abortions and, in some cases, will prevent
women from obtaining an abortion entirely. Moreover, PPH argues the
41
district court’s “eight percent” figure is based on a misreading of several
studies. PPH additionally asks that we depart from federal precedent
and apply strict scrutiny when reviewing state actions that infringe on
the right to choose to terminate a pregnancy.
The State, conversely, urges that the Act’s 72-hour delay is not
facially unconstitutional, as PPH has not established that the Act cannot
be constitutionally applied to any set of facts. Further, the State argues
that abortion is not a fundamental right under the Iowa Constitution and
we should decline to adopt a separate standard from federal precedent.
IV. Standard of Review.
We review constitutional claims de novo. Planned Parenthood of
the Heartland, Inc. v. Iowa Bd. of Med., 865 N.W.2d 252, 261 (Iowa 2015).
PPH brings a facial challenge to the Act. When reviewing
challenges to abortion statutes, the proper scope of a facial challenge is
subject to debate. Generally, to succeed on a facial challenge, the
petitioner must prove a statute is “totally invalid and therefore,
‘incapable of any valid application.’ ” Santi v. Santi, 633 N.W.2d 312,
316 (Iowa 2001) (quoting State v. Brumage, 435 N.W.2d 337, 342 (Iowa
1989)). However, in Planned Parenthood of Southeastern Pennsylvania v.
Casey, the United States Supreme Court impliedly rejected the no-set-of-
circumstances standard in the abortion context and, instead, considered
the validity of an abortion regulation among “the group for whom the law
is a restriction, not for whom the law is irrelevant.” 505 U.S. 833, 894,
112 S. Ct. 2791, 2829 (1992).
There, Pennsylvania’s spousal-notification provision would only
impose a burden on the 1% of women (in that case) who were victims of
domestic violence. Id. Although the provision would validly apply to the
many women who discuss with their partner their decision to terminate,
42
the Court instructed, “Legislation is measured for consistency with the
Constitution by its impact on those whose conduct it affects.” Id.
Because the provision imposed an undue burden upon the class of
women actually affected—victims of domestic violence—the Court
declared the spousal-notification provision facially unconstitutional. Id.
at 895, 112 S. Ct. at 2830.
We believe the Casey standard is the wiser approach. Abortion
regulations impact different women in many different ways. Womanhood
is not a monolith. There are few hurdles that are of level height for
women of different races, classes, and abilities. There are few
impositions that cannot be solved by wealth. Women of means are
surely better positioned to weather the consequences of waiting-period
requirements. Yet, it is axiomatic that a right that is only accessible to
the wealthy or privileged is no right at all. Accordingly, on our review of
the Act, we will measure its constitutionality by “its impact on those
whose conduct it affects.” Id. at 894, 112 S. Ct. at 2829.
V. Legal Analysis.
A. Substantive Due Process.
1. Substantive due process claims, generally. The Iowa
Constitution guarantees “no person shall be deprived of life, liberty, or
property, without due process of law.” Iowa Const. art. I, § 9. The
provision is “nearly identical in scope, import and purpose” to the
Federal Due Process Clause. State v. Hernandez-Lopez, 639 N.W.2d 226,
237 (Iowa 2002). Despite this likeness, we “jealously guard it as our
right and duty to differ from the Supreme Court, in appropriate cases,
when construing analogous provisions in the Iowa Constitution.”
Hensler v. City of Davenport, 790 N.W.2d 569, 579 n.1 (Iowa 2010).
Accordingly, while we may draw upon precedent from federal courts
43
when persuasive, we exercise our right to conduct an independent
interpretation of our constitution.
PPH’s due process claim rests not upon a procedural defect, but
rather upon the existence of a substantively inadequate justification for
burdening the ability to obtain an abortion. Substantive due process
claims are grounded in our nation’s long history of interpreting the text
of the Due Process Clause to “impose[] nothing less than an obligation to
give substantive content to the words ‘liberty’ and ‘due process of law.’ ”
Washington v. Glucksberg, 521 U.S. 702, 764, 117 S. Ct. 2258, 2281
(1997).
When Iowans bring claims alleging a deprivation of substantive
due process, we employ a two-stage inquiry. First, we “determine the
nature of the individual right involved.” Hensler, 790 N.W.2d at 580.
Second, we determine “the appropriate level of scrutiny to apply.” Id. “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.” Id. Conversely, if
the right at stake is not fundamental, we apply the “rational-basis test,”
which considers whether there is a “reasonable fit between the
government interest and the means utilized to advance that interest.”
Hernandez-Lopez, 639 N.W.2d at 238.
No clear test exists for determining whether a claimed right is
fundamental. However, there are a number of guiding principles.
Generally, only those “rights and liberties which are ‘deeply rooted in this
Nation’s history and tradition’ and ‘implicit in the concept of ordered
liberty’ qualify as fundamental.” State v. Seering, 701 N.W.2d 655, 664
(Iowa 2005) (quoting Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct.
1994, 2005 (2003)). A “ ‘[f]undamental right’ for purposes of
44
constitutional review is not a synonym for ‘important.’ Many important
interests, such as the right to choose one’s residence or the right to drive
a vehicle, do not qualify as fundamental rights.” King v. State, 818
N.W.2d 1, 26 (Iowa 2012).
Importantly, “[h]istory and tradition guide and discipline this
inquiry but do not set its outer boundaries.” Obergefell v. Hodges, 576
U.S. ___, ___, 135 S. Ct. 2584, 2598 (2015). Our constitution recognizes
the ever-evolving nature of society, and thus, our inquiry cannot be
cabined within the limited vantage point of the past. This review
“respects our history and learns from it without allowing the past alone
to rule the present.” Id. at ___, 135 S. Ct. at 2598.
The generations that wrote and ratified the Bill of Rights and
the Fourteenth Amendment did not presume to know the
extent of freedom in all of its dimensions, and so they
entrusted to future generations a charter protecting the right
of all persons to enjoy liberty as we learn its meaning.
Id. at ___, 135 S. Ct. at 2598.
Yet, a substantive due process claim “is not easy to prove.”
Blumenthal Inv. Trs. v. City of West Des Moines, 636 N.W.2d 255, 265
(Iowa 2001). The claim is “reserved for the most egregious governmental
abuses against liberty or property rights, abuses that ‘shock the
conscience or otherwise offend . . . judicial notions of fairness . . . [and
that are] offensive to human dignity.’ ” Id. (alterations in original)
(quoting Rivkin v. Dover Twp. Rent Leveling Bd., 671 A.2d 567, 574–75
(1996)). “With the exception of certain intrusions on an individual’s
privacy and bodily integrity, the collective conscience of [the court] is not
easily shocked.” Id. (quoting Rivkin, 671 A.2d at 575).
2. Fundamental right. Over forty years ago, the United States
Supreme Court held the “right of privacy,” as grounded in the Fourteenth
45
Amendment’s guarantee of personal liberty, was “broad enough to
encompass a woman’s decision whether or not to terminate her
pregnancy.” Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct. 705, 727 (1973).
The Court pointed to “a line of decisions” in which it “recognized that a
right of personal privacy, or a guarantee of certain areas or zones of
privacy, does exist under the Constitution.” Id. at 152, 93 S. Ct. at 726.
The Court’s prior decisions extended “this guarantee of personal privacy”
to the fundamental right to marriage, Loving v. Virginia, 388 U.S. 1, 12,
87 S. Ct. 1817, 1824 (1967); procreation, Skinner v. Oklahoma, 316 U.S.
535, 541, 62 S. Ct. 1110, 1113 (1942); contraception, Eisenstadt v.
Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 1038 (1972); Griswold v.
Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682 (1965); family
relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438,
442 (1944); child rearing, id. at 166, 64 S. Ct. at 442; and child
education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571,
573 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626
(1923). Roe, 410 U.S. at 152–53, 93 S. Ct. at 726–27. Within that
sphere of shielded personal autonomy, the Court reasoned, lies the
decision whether to continue or terminate a pregnancy. Id. at 153, 93
S. Ct. at 727. Thus, the constitutional right to an abortion was grounded
in the deeply personal nature of the decision. It is part of the host of
personal freedoms that emanate from the concept of “liberty” guaranteed
under the Due Process Clause.
Nineteen years later, the Supreme Court revisited Roe and affirmed
that a woman’s constitutionally protected liberty interests include the
decision whether to terminate her pregnancy before the point of viability.
Casey, 505 U.S. at 869–70, 112 S. Ct. at 2816. The Court explained that
abortion regulations “touch[] not only upon the private sphere of the
46
family but upon the very bodily integrity of the pregnant woman.” Id. at
896, 112 S. Ct. at 2830.
In prior cases, we have found the substantive due process
protections embodied in article I, section 9 of the Iowa Constitution
encompass the profoundly personal decisions Iowans make about family,
procreation, and child rearing. See McQuistion v. City of Clinton, 872
N.W.2d 817, 832 (Iowa 2015) (“The right to procreate is implied in the
concept of ordered liberty and qualifies for due process protection as a
fundamental right.”); In re Guardianship of Kennedy, 845 N.W.2d 707,
714 (Iowa 2014) (“A statutory scheme that empowered a court-appointed
actor . . . to have an intellectually disabled person sterilized without
some form of judicial review would raise serious due process concerns.”);
Seering, 701 N.W.2d at 663 (“[T]he familial relationship is a fundamental
liberty interest protected by both constitutions.”); Callender v. Skiles, 591
N.W.2d 182, 190 (Iowa 1999) (“We have repeatedly found fundamental
interests in family and parenting circumstances.”); Olds v. Olds, 356
N.W.2d 571, 574 (Iowa 1984) (“[T]he government is ill-equipped to dictate
the details of social interaction among family members. . . . [T]he
parenting right is a fundamental liberty interest that is protected against
unwarranted state intrusion.”).
Here, the State argues there is no similar fundamental right to
terminate a pregnancy under the Iowa Constitution. The State contends
the Iowa Constitution does not expressly protect the right to an abortion,
nor may it be found within any other provision. Specifically, the State
urges that abortion was a crime in Iowa when the due process clause
was adopted, see Revised Statutes of the Territory of Iowa ch. 49, § 10
(1843), and it remained a crime until the Roe decision, see Doe v. Turner,
361 F. Supp. 1288, 1292 (S.D. Iowa 1973), and thus, it is not deeply
47
rooted in Iowa’s history and traditions. In framing the issue, however,
the State misconstrues the true nature of the due process inquiry in this
case.
In Bowers v. Hardwick, the Supreme Court heard a substantive
due process challenge to Georgia’s criminal sodomy law. 478 U.S. 186,
187–90, 106 S. Ct. 2841, 2842–43 (1986). The Court framed the
constitutional inquiry as whether due process granted “a fundamental
right upon homosexuals to engage in sodomy.” Id. at 190, 106 S. Ct. at
2843. The Court then proceeded to explain, “Proscriptions against that
conduct have ancient roots” and determined that “homosexual sodomy”
was not “deeply rooted in this Nation’s history and tradition.” Id. at 192–
94, 106 S. Ct. 2844–46. This is the same approach used by the State
here to exclude abortion as a fundamental right.
However, just seventeen years later, the Court acknowledged its
error. Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484
(2003). The Court explained that the Bowers Court’s narrow framing of
the issue “disclose[d] the Court’s own failure to appreciate the extent of
the liberty at stake.” Id. at 567, 123 S. Ct. at 2478.
To say that the issue in Bowers was simply the right to
engage in certain sexual conduct demeans the claim the
individual put forward, just as it would demean a married
couple were it to be said marriage is simply about the right
to have sexual intercourse. The laws involved in Bowers and
here are, to be sure, statutes that purport to do no more
than prohibit a particular sexual act. Their penalties and
purposes, though, have more far-reaching consequences,
touching upon the most private human conduct, sexual
behavior, and in the most private of places, the home. The
statutes do seek to control a personal relationship that,
whether or not entitled to formal recognition in the law, is
within the liberty of persons to choose without being
punished as criminals.
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Id. Accordingly, the actual liberty interest at stake was not the limited
right of homosexuals to engage in sodomy, but the fundamental right of
consenting adults to engage in private, consensual conduct without
government intervention. Id. at 578, 106 S. Ct. at 2484.
Foundational principles such as liberty and due process “were
purposely left to gather meaning from experience.” Nat’l Mut. Ins. of D.C.
v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S. Ct. 1173, 1195
(1949) (Frankfurter, J., dissenting). The doctrines “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.”
Id. at 646, 69 S. Ct. at 1195–96. “In a Constitution for a free people,
there can be no doubt that the meaning of ‘liberty’ must be broad
indeed.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572, 92
S. Ct. 2701, 2707 (1972). A constitution would not use concepts to
express individual rights and guarantees if specificity were needed. At
the same time, a constitution would express individual rights and
guarantees with specificity if concepts could only express those rights
and guarantees associated with the concept at the time.
The Iowa Constitution “is a living and vital instrument.” In re
Johnson, 257 N.W.2d 47, 50 (Iowa 1977). “[U]nlike statutes, our
constitution sets broad general principles. . . . Its very purpose is to
endure for a long time and to meet conditions neither contemplated nor
foreseeable at the time of its adoption.” Id. We have explained that our
constitution “must have enough flexibility so as to be interpreted in
accordance with the public interest. This means they must meet and be
applied to new and changing conditions.” Pitcher v. Lakes Amusement
Co., 236 N.W.2d 333, 335–36 (Iowa 1975). Indeed, we once noted we had
49
“freed ourselves from the private views of the constitution’s framers
which were in many cases but accidents of history.” Id. at 336.
[I]n determining whether a provision of the Constitution
applies to a new subject matter, it is of little significance that
it is one with which the framers were not familiar. For in
setting up an enduring framework of government they
undertook to carry out for the indefinite future and in all
vicissitudes of the changing affairs of men, those
fundamental purposes which the instrument itself discloses.
Hence we read its words, not as we read legislative codes
which are subject to continuous revision with the changing
course of events, but as the revelation of the great purposes
which were intended to be achieved by the Constitution as a
continuing instrument of government.
Id. (quoting United States v. Classic, 313 U.S. 299, 316, 61 S. Ct. 1031,
1038 (1941)). Our constitutional doctrines “are not necessarily static,
and [our analysis] instead considers current prevailing standards that
draw their ‘meaning from the evolving standards . . . that mark the
progress of a maturing society.’ ” Griffin v. Pate, 884 N.W.2d 182, 186
(Iowa 2016) (quoting Trop v. Dulles, 356 U.S. 86, 100–01, 78 S. Ct. 590,
598 (1958)). Ultimately, “[t]his approach reveals the enduring strength of
our constitution.” Id.
As the Supreme Court did in Bowers, the State here fails to
appreciate the extent of the liberty interest at stake when the government
impermissibly invades a woman’s ability to decide whether to terminate a
pregnancy.
These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one’s own concept of existence,
of meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion
of the State.
. . . The mother who carries a child to full term is
subject to anxieties, to physical constraints, to pain that only
50
she must bear. That these sacrifices have from the
beginning of the human race been endured by woman with a
pride that ennobles her in the eyes of others and gives to the
infant a bond of love cannot alone be grounds for the State
to insist she make the sacrifice. Her suffering is too intimate
and personal for the State to insist, without more, upon its
own vision of the woman’s role, however dominant that
vision has been in the course of our history and our culture.
The destiny of the woman must be shaped to a large extent
on her own conception of her spiritual imperatives and her
place in society.
Casey, 505 U.S. at 851–52, 112 S. Ct. at 2807.
The guarantee of due process under the Iowa Constitution “exists
to prevent unwarranted governmental interferences with personal
decisions in life.” McQuistion, 872 N.W.2d at 832. “The decision whether
to obtain an abortion is fraught with specific physical, psychological, and
economic implications of a uniquely personal nature for each woman.”
In re T.W., 551 So. 2d 1186, 1193 (Fla. 1989). “The authority to make
such traumatic yet empowering decisions is an element of basic human
dignity. . . . [A] woman’s decision to terminate her pregnancy is nothing
less than a matter of conscience.” Casey, 505 U.S. at 916, 112 S. Ct. at
2840 (Stevens, J., concurring in part and dissenting in part).
Of all decisions a person makes about his or her body, the
most profound and intimate relate to two sets of ultimate
questions: first, whether, when, and how one’s body is to
become the vehicle for another human being’s creation;
second, when and how—this time there is no question of
“whether”—one’s body is to terminate its organic life.
Laurence H. Tribe, American Constitutional Law 1337–38 (2d ed. 1988).
Parenthood is more than biological procreation. It embraces a
bond that defies description, but also a series of social and moral
expectations that demand a parent takes responsibility to provide for his
or her child. Well into the twenty-first century, this expectation
continues to fall disproportionately upon the child’s mother. Motherhood
51
compels devotion and considerable sacrifice. Whether a woman is
personally prepared and capable of assuming life-altering obligations and
expectations is a decision about which the government has scarce
insight.
In Eisenstadt and Griswold, the Supreme Court recognized a
protected liberty interest in married couples and single individuals to be
free from unwarranted governmental intrusion in matters as intimate as
whether to use contraception. See Eisenstadt, 405 U.S. at 453, 92 S. Ct.
at 1038 (“If the right of privacy means anything, it is the 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.”); Griswold, 381 U.S. at 485,
85 S. Ct. at 1682. The identified right to “privacy” was not an
entitlement to secrecy, but rather the recognition that the government is
ill-equipped to intervene in decisions of such personal magnitude as
whether to procreate and assume the responsibilities of parenthood.
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.
3. Degree of scrutiny. Having identified the fundamental nature of
the right at issue, we next proceed to the second step of the substantive
due process inquiry. In the second step, we determine the “appropriate
level of scrutiny to apply” in examining the extent to which the right can
be regulated. Hensler, 790 N.W.2d at 580. It is well settled that “[i]f a
52
fundamental right is implicated, we apply strict scrutiny.” Seering, 701
N.W.2d at 662. Indeed, we have explained, “Substantive 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.’ ”
Bowers v. Polk Cty. Bd. of Supervisors, 638 N.W.2d 682, 694 (Iowa 2002)
(alteration in original) (quoting Reno v. Flores, 507 U.S. 292, 302, 113
S. Ct. 1439, 1447 (1993)). However, with respect to state actions that
infringe upon the right to terminate a pregnancy, the Supreme Court and
some states have seen fit to deviate downward.
In Roe, the Court cautioned that the fundamental right to
terminate a pregnancy is not absolute. 410 U.S. at 154, 93 S. Ct. at 727.
The state’s interests in maternal health and promoting potential life are
important and may justify intrusion on a woman’s decision to terminate
a pregnancy. Id. Thus, to balance the competing interests of the woman
and the state, the Court created a trimester framework. Id. at 163–66,
93 S. Ct. at 731–33. During the first trimester, nearly all state
regulations are unconstitutional, as the state’s interest in protecting
maternal health does not become “compelling” until the end of the first
trimester. Id. at 163, 93 S. Ct. at 731. During the second trimester,
regulations “reasonably relat[ing] to the preservation and protection of
maternal health” are permitted. Id. at 163, 93 S. Ct. at 732. During the
third trimester, when the fetus becomes viable, the state’s interest in
promoting potential life becomes “compelling,” and the state may
regulate in furtherance of that interest, including going “so far as to
proscribe abortion . . . except when it is necessary to preserve the life or
health of the mother.” Id. at 163–64, 93 S. Ct. at 732.
53
In Casey, it reconsidered the trimester framework. 505 U.S. at
873, 112 S. Ct. at 2818 (plurality opinion). The Court concluded it
“misconceive[d] the nature of the pregnant woman’s interest; and in
practice it undervalue[d] the State’s interest in potential life.” Id. Thus,
it endeavored to rebalance the interests of the pregnant woman and the
state and adopted the “undue burden” standard. Id. at 876, 112 S. Ct.
at 2820. Under the undue burden standard, the state may enact
previability abortion restrictions in furtherance of its interest in
promoting potential life. However, the state 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.” Id. at 877,
112 S. Ct. at 2820.
A statute with this purpose is invalid because the means
chosen by the State to further the interest in potential life
must be calculated to inform the woman’s free choice, not
hinder it. And a statute which, while furthering the interest
in potential life or some other valid state interest, has the
effect of placing a substantial obstacle in the path of a
woman’s choice cannot be considered a permissible means of
serving its legitimate ends.
Id.
The Casey Court explained that, under the standard,
[r]egulations which do no more than create a structural
mechanism by which the State . . . may express profound
respect for the life of the unborn are permitted, if they are
not a substantial obstacle to the woman’s exercise of the
right to choose.
Id. at 877, 112 S. Ct. at 2821. Unless the regulation places a substantial
obstacle on a woman’s right to choose, “a state measure designed to
persuade her to choose childbirth over abortion will be upheld if
reasonably related to that goal.” Id. at 878, 112 S. Ct. at 2821.
54
Several states have opted to apply the undue burden standard
under their own constitutions. In Pro-Choice Mississippi v. Fordice, the
Mississippi Supreme Court considered the appropriate standard for its
constitution and adopted the undue burden test. 716 So. 2d 645, 654–
55 (Miss. 1998). The court reasoned,
While we have previously analyzed cases involving the state
constitutional right to privacy under a strict scrutiny
standard requiring the State to prove a compelling interest,
we are not bound to apply that standard in all privacy cases.
The abortion issue is much more complex than most cases
involving privacy rights. We are placed in the precarious
position of both protecting a woman’s right to terminate her
pregnancy before viability and protecting unborn life. In an
attempt to create a workable framework out of these
diametrically opposed positions, we adopt the wellreasoned
decision in Casey, applying the undue burden standard to
analyze laws restricting abortion. We do not limit any future
application of the strict scrutiny standard for evaluating
infringement on a person’s right to privacy in other areas.
Id. at 655.
Yet, other states have declined to adopt the undue burden
standard under their own constitutions. In Planned Parenthood of Middle
Tennessee v. Sundquist, the Tennessee Supreme Court opted to apply
strict scrutiny to abortion regulations, concluding the undue burden
standard “is essentially no standard at all.” 38 S.W.3d 1, 16 (Tenn.
2000), superseded by constitutional amendment, Tenn. Const. art. I, § 36.
The court reasoned the undue burden standard “in effect, allows judges
to impose their own subjective views of the propriety of the legislation in
question.” Id. Although judges are instructed to review the effects of a
regulation, the test fails to
offer an objective standard by which the effect should be
judged. Accordingly, a regulation held to be an undue
burden by one judge could just as easily be found to be
reasonable by another judge because the gauge for what is
an undue burden necessarily varies from person to person.
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Id. Because the court found the right to decide whether to continue or
terminate a pregnancy to be a fundamental right, it declined to exchange
the well-established strict scrutiny approach with a test that “would
relegate a fundamental right of the citizens of Tennessee to the personal
caprice of an individual judge.” Id. at 17.
No court has held, and we do not today hold, that a woman’s right
to terminate a pregnancy is unlimited. Like all fundamental rights, it is
subject to reasonable regulation. When the legislature seeks to regulate
abortions, it generally acts pursuant to two identified state interests.
The state has a compelling interest in “protecting the woman’s own
health and safety” and ensuring that abortions, like other medical
procedures, are performed under safe circumstances for the patient.
Roe, 410 U.S. at 150, 93 S. Ct. at 725. As well, the state has a
compelling interest in promoting potential life. See id. at 164, 93 S. Ct.
at 732 (noting after viability the state may “promot[e] its interest in the
potentiality of human life”); see also Casey, 505 U.S. at 871, 112 S. Ct.
at 2817 (noting the state’s interest “in the protection of potential life”).
However, in giving the state its due recognition that its interests
are compelling, we must also hold the state to its convictions under the
constitution. A regulation must further the identified state interest that
motivated the regulation not merely in theory, but in fact. Demanding a
connection between the restriction and the state’s objective ensures the
government is not virtually unrestrained in its ability to regulate a
fundamental right.
When a state regulates abortion in furtherance of its interest in
potential life, the undue burden standard solely measures the impact the
regulation has on women’s ability to receive the procedure. See Planned
Parenthood of the Heartland, 865 N.W.2d at 263 (noting the Supreme
56
Court “applies the undue burden test differently depending on the state’s
interest advanced by a statute or regulation” and explaining the Court
only balances the burdens against the benefits when considering
regulations aimed at protecting maternal health). More, however, can be
at stake. 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.
Moreover, the undue burden standard tasks judges with
safeguarding women’s liberty interests by gauging the types of barriers
women can reasonably be expected to overcome and the types that may
prove too great. Justice Scalia, though he disagreed that the
constitution protects women’s reproductive decisional autonomy, argued
the undue burden standard “place[s] all constitutional rights at risk.”
Casey, 505 U.S. at 988, 112 S. Ct. at 2878 (Scalia, J., concurring in part
and dissenting in part). He explained,
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. at 992, 112 S. Ct. at 2880.
“The undue burden test requires a judge to consider only the effect
of the governmental regulation. It fails, however, to offer an objective
standard by which the effect should be judged.” Sundquist, 38 S.W.3d at
16. We agree with the Tennessee Supreme Court that the undue burden
standard “offers . . . no real guidance and engenders no expectation
among the citizenry that governmental regulation of abortion will be
objective, evenhanded, or well-reasoned.” Id. at 17.
 57
Narrow tailoring, conversely, replaces a judge’s subjective
understandings as to what obstacles women can conceivably withstand
in pursuit of exercising a fundamental right with a well-established
framework that measures the relationship between the government’s
objective and its chosen means. Narrow tailoring, while undoubtedly
constraining the government’s capacity to act in furtherance of its
compelling interests, ensures all state forays into constitutionally
protected spheres are judiciously fashioned and commit no greater
intrusion than necessary.
Ultimately, adopting the undue burden standard would relegate
the individual rights of Iowa women to something less than fundamental.
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. By applying the narrow tailoring framework, however, we 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. The guarantee of substantive due process
requires nothing less. Accordingly, we conclude strict scrutiny is the
appropriate standard to apply.
4. Disposition. Applying strict scrutiny, we consider whether the
statute is “narrowly tailored to serve a compelling state interest.” Santi,
633 N.W.2d at 318 (quoting State v. Klawonn, 609 N.W.2d 515, 519
(Iowa 2000)).
The Act expressly declared that its purpose was to “enact policies
that protect all unborn life.” 2017 Iowa Acts ch. 108, § 5. The State has
further clarified that the Act is an “informed choice” provision designed
to provide important information to Iowa women in the hope that, after
58
taking some time to consider the information, some women will choose to
continue a pregnancy they otherwise would have terminated. The State
indeed has a compelling interest in promoting potential life and in
helping people make informed choices in life.
Importantly, the factual question in this case is not whether some
women enter PPH clinics conflicted or even whether some women benefit
from additional time to consider their options. The record confirms that
PPH’s current same-day regime ensures that women who are conflicted
or who need more time are, in fact, given extra time or are given the
resources to pursue other options. Rather, the factual issue in this case
is whether requiring all women to wait at least three days between the
informational and procedural appointments will impact patient
decision-making.
Without a mandatory delay in effect, the evidence showed that
women who are conflicted in their decision or under duress do not
receive the procedure and, instead, are given more time to consider or
given resources to pursue alternatives. 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.
The Roberts study was the only study presented in this case that
actually inquired into why some women ultimately decide to continue
with their pregnancy. In that study, 2% of women who were certain in
their decision upon arrival changed their minds from wanting an
abortion to deciding to continue with their pregnancy. Yet, in
jurisdictions without mandatory waiting periods, between 1% and 3% of
59
women who are similarly certain in their decision upon arrival change
their minds from wanting an abortion to deciding to continue with the
pregnancy. Thus, the study that is most probative of the factual issue in
this case demonstrates that mandatory waiting periods have no effect on
patient decision-making.
The finding by the district court that “at least eight percent” of
Iowa women will likely change their minds under the Act is premised
upon the misreading of several studies discussed at trial. The “eight
percent” figure drawn by the district court from the Roberts study did not
just include the 2% of women who did change their decision after the
waiting period from having an abortion to continuing with their
pregnancy. It also included the 6% of women who continued with their
pregnancy after the waiting period but either intended to continue their
pregnancy at the time of the first appointment or were conflicted and had
not yet made a decision. It was an error to include this group of women.
In determining the effect of imposing a waiting period on the decision to
take any action, it would be incongruous to consider those people who
have not yet decided to act. If a person has not yet decided to act, the
person is in a state of waiting to act. Thus, the imposition of a waiting
period under this circumstance cannot be a factor in changing the
decision. A decision must first be made before it can be changed.
Moreover, we do not know how many women in the study entered
their appointments uncertain in their decision and then, after the waiting
period, decided to have the abortion. Thus, the study not only fails to
show how a mandatory waiting period reduces abortions by increasing
the number of women who change their decisions, but it also does not
show that more women in the group that begin the abortion process in a
60
state of uncertainty or with no intention to terminate will continue their
pregnancies.
Accordingly, the Roberts study can only be read to support the
conclusion that patients who are certain in their decision upon arrival
are unaffected by waiting periods. And the record demonstrates that
those who are uncertain in their decision upon arrival do not receive the
procedure under PPH’s same-day regime. In the application of our
constitution, care must be taken in analyzing and drawing the essential
conclusions from the evidence essential to the determination of its rights
and guarantees.
The district court’s reliance on the Gatter, White, and Sanders
studies to support its figure is similarly misplaced. Dr. Gatter’s
Los Angeles study is not relevant to the factual issue in this case, as it
did not assess whether receiving information and then observing a
mandatory waiting period impacts patient decision-making. Further, the
court overlooked testimony from PPH’s witnesses explaining the Gatter
study did not address causation and thus did not find that viewing an
ultrasound caused women to forego the abortion. Dr. White’s Alabama
study did not conclude that 18.8% of women did not go through with the
procedure, nor did it assess the causal relationship between the waiting
period and the decision to have an abortion. Indeed, both PPH and the
State clarified during trial that the White study was not probative of
decision-making. Finally, the first portion of the Sanders study—which
the court relied on—exclusively reviewed statistics and did not attempt to
discern why women did not return for their procedure. PPH’s witnesses
explained the study might well indicate that the women were prevented
from returning, rather than decided not to return.
61
Moreover, the district court failed to take the Ralph, Rocca, and
Grossman studies into consideration. These studies demonstrate that
abortion patients are firm in their decisions, the typical abortion patient
has an over 99% chance of reporting that the decision to terminate was
right for her, and that waiting periods do not impact decisional certainty.
In truth, the evidence conclusively demonstrates that the Act will
not result in a measurable number of women choosing to continue a
pregnancy they would have terminated without a mandatory 72-hour
waiting period. Moreover, the burdens imposed on women by the waiting
period are substantial, especially for women without financial means.
Under the Act, patients will need to make two trips to a PPH clinic since
it is likely they would not be readily able to obtain certification from a
local, non-PPH provider. The Act requires poor and low-income women,
which is a majority of PPH patients, to amass greater financial resources
before obtaining the procedure. Patients will inevitably delay their
procedure while assembling the resources needed to make two trips to a
clinic.
The district court considered this evidence and found that “women
will have the ability to account for the additional time to schedule two
appointments.” Yet, most women do not discover a pregnancy until at
least five weeks after their last menstrual period. Other women cannot
discover a pregnancy until later due to their contraception masking the
symptoms of pregnancy. Women take the necessary time to research
their options, talk to their loved ones, and make the decision whether to
continue with their pregnancy. If a woman decides to seek an abortion,
she must then raise the funds to travel to and pay for both
appointments. If a woman does not have money to put gasoline in her
62
car, she cannot go to the appointment. Women therefore cannot simply
schedule their initial appointment earlier.
Due to the Act’s delay, some patients will be pushed beyond the
twenty-week surgical abortion cutoff and others will be pushed beyond
the ten-week medication abortion window and will be denied the
procedure of their choice. The delay will also expose women to additional
medical risk. Finally, victims of domestic abuse and sexual assault will
endure additional hardships, including jeopardized confidentiality.
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.
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.
Unlike mandatory delay statutes in other states, the Act does not
provide an exception for rural women who live far from health centers.
See Tex. Health & Safety Code Ann. § 171.012(a)(4) (West, Westlaw
63
through 2017 Reg. and 1st Called Sess. of 85th Leg.); Va. Code Ann.
§ 18.2-76(B) (West, Westlaw through 2017 Reg. Sess.). See generally
Lisa R. Pruitt & Marta R. Vanegas, Urbanormativity, Spatial Privilege, and
Judicial Blind Spots in Abortion Law, 30 Berkeley J. Gender L. & Just. 76
(2015). Nor does it provide an exception for rape or incest victims. See
Utah Code Ann. § 76-7-305(9)(c)–(d) (West, Westlaw current with 2018
Gen. Sess. effective through April 1, 2018). Nor does it provide
exceptions for victims of domestic violence or human trafficking. See Fla.
Stat. Ann. § 390.0111(3)(b) (West, Westlaw through 2018 2d Reg. Sess.),
invalidated on other grounds by Gainesville Woman Care, LLC v. State,
210 So. 3d 1243, 1265 (Fla. 2017).
Reasonable minds unquestionably diverge as to the morality of
terminating a pregnancy. “It is conventional constitutional doctrine that
where reasonable people disagree the government can adopt one position
or the other. That theorem, however, assumes a state of affairs in which
the choice does not intrude upon a protected liberty.” Casey, 505 U.S. at
851, 112 S. Ct. at 2806–07 (majority opinion) (citations omitted). We do
not, and could not, endeavor to discern the precise moment when a
human being comes into existence. We have great respect for the
sincerity of those with deeply held beliefs on either side of the issue.
Nevertheless, the state’s capacity to legislate pursuant to its own moral
scruples is necessarily curbed by the constitution. The state may pick a
side, but in doing so, it may not trespass upon the fundamental rights of
the people.
Because it cannot satisfy strict scrutiny, we hold the “seventy-two
hour[]” waiting requirement of Division I of Senate File 471 violates due
process under the Iowa Constitution. See Iowa Code § 146A.1(1).
64
B. Equal Protection. While we conclude the Act is
unconstitutional under the due process clause, we further consider the
impact of the Act on our equal protection clause. Although not required,
it can serve to cast a greater light of understanding on a divisive issue in
society. See Obergefell, 576 U.S. at ___, 135 S. Ct. at 2602–05 (striking
down state prohibitions of same-sex marriage under both the Due
Process and Equal Protection Clauses).
The Iowa Constitution guarantees “[a]ll men and women are, by
nature, free and equal.” Iowa Const. art. I, § 1. It further promises “[a]ll
laws of a general nature shall have a uniform operation; 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.” Id. art. I, § 6. Our constitution’s guarantee of equal protection
of the law is “the very foundation principle of our government.” Coger v.
Nw. Union Packet Co., 37 Iowa 145, 153 (1873).
Liberty and equality are intertwined. “Rights implicit in liberty and
rights secured by equal protection may rest on different precepts and are
not always co-extensive, yet in some instances each may be instructive
as to the meaning and reach of the other.” Obergefell, 576 U.S. at ___,
135 S. Ct. at 2603. As our understanding of fundamental liberties and
intolerable inequalities deepens and evolves with time, so too does our
understanding of what “freedom is and must become.” Id.
For much of our state’s, and nation’s, history, biological differences
have been used to justify women’s subordinate position in society. In In
re Carragher, this court affirmed a statute that effectively prevented
female pharmacists from obtaining licenses to sell alcohol. 149 Iowa
225, 229–30, 128 N.W. 352, 353–54 (1910). We explained that although
“a woman may be a competent pharmacist, and as such be capable and
65
worthy to receive a permit, . . . the law could not permit the sex to engage
in the retail liquor traffic generally without serious injury to public
morals.” Id. at 229, 128 N.W.2d at 353. We then found “the fact that in
many instances individuals of one sex are in general better fitted than
those of the other sex for a given occupation or business is one of such
common knowledge and observation that the Legislature” is free to enact
statutes pursuant to it. Id. at 229–30, 128 N.W.2d at 354.
In Bradwell v. Illinois, the Supreme Court affirmed the State of
Illinois’s policy denying women licenses to practice law. 83 U.S. (16
Wall.) 130, 139 (1872). In his concurring opinion, Justice Bradley
offered his view on the definitive role of women in society.
[T]he civil law, as well as nature herself, has always
recognized a wide difference in the respective spheres and
destinies of man and woman. Man is, or should be, woman’s
protector and defender. The natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it
for many of the occupations of civil life. The constitution of
the family organization, which is founded in the divine
ordinance, as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the
domain and functions of womanhood. The harmony, not to
say identity, of interest and views which belong, or should
belong, to the family institution is repugnant to the idea of a
woman adopting a distinct and independent career from that
of her husband. . . .
. . . The paramount destiny and mission of woman are
to fulfil the noble and benign offices of wife and mother.
This is the law of the Creator. And the rules of civil society
must be adapted to the general constitution of things, and
cannot be based upon exceptional cases.
Id. at 141–42 (Bradley, J., concurring).
Yet, as time has progressed, so too have our understandings of
freedom and equality. Disparate treatment and relegation of women to a
subject sex may no longer be accomplished through the proxy of role
differentiation.
66
Reviewing courts must scrutinize challenged statutes in a manner
“free of fixed notions concerning the roles and abilities of males and
females. Care must be taken in ascertaining whether the statutory
objective itself reflects archaic and stereotypic notions.” Miss. Univ. for
Women v. Hogan, 458 U.S. 718, 724–25, 102 S. Ct. 3331, 3336 (1982).
Equal protection of the law now prevents governments from “den[ying] to
women, simply because they are women, full citizenship stature—equal
opportunity to aspire, achieve, participate in and contribute to society
based on their individual talents and capabilities.” United States v.
Virginia, 518 U.S. 515, 532, 116 S. Ct. 2264, 2275 (1996). “Inherent
differences” between the sexes “remain cause for celebration, but not for
denigration of the members of either sex or for artificial constraints on an
individual’s opportunity.” Id. at 533, 116 S. Ct. at 2276. And “such
classifications may not be used, as they once were, to create or
perpetuate the legal, social, and economic inferiority of women.” Id. at
534, 116 S. Ct. at 2276 (citation omitted).
Implicit in the concept of ordered liberty, we recognize today, is the
ability to decide whether to terminate a pregnancy. Profoundly linked to
the liberty interest in reproductive autonomy is the right of women to be
equal participants in society. As Justice Ginsburg once described the
issue, “in the balance is 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.” Ruth B. Ginsburg,
Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63
N.C. L. Rev. 375, 383 (1985).
Autonomy is key in addressing the equal protection claim
presented in this case. Autonomy is the great equalizer. Laws that
diminish women’s control over their reproductive futures can have
67
profound consequences for women. Some women embrace them and
never look back. Others, however, do look back and see a trajectory in
life different from men. 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. Societal advancements in occupational
opportunities are meaningless if women cannot access them. Policies
that make education more affordable are meaningless if women are kept
out of reach. Equality and liberty in this instance, as in so many others,
are irretrievably connected.
When a state action infringes upon a fundamental right, the
guarantee of equal protection of the law requires the state to demonstrate
the action is narrowly tailored to serve a compelling government interest.
Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005). As discussed, we
conclude the Act cannot satisfy strict scrutiny. Thus, we hold the
“seventy-two hour[]” waiting requirement of Division I of Senate File 471
violates the right to equal protection under the Iowa Constitution.
VI. Conclusion.
For the foregoing reasons, the judgment of the district court is
reversed. The language in Iowa Code section 146A.1(1) requiring
physicians to wait “at least seventy-two hours” between obtaining written
certification and performing an abortion is stricken from the statute. See
Iowa Code § 4.12 (codifying the severability doctrine).
REVERSED.
All justices concur except Mansfield and Waterman, JJ., who
dissent.
68
#17–1579, Planned Parenthood v. Reynolds
MANSFIELD, Justice (dissenting).
Abortion is one of the most divisive issues in America today. 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.
Whatever one may think of the United States Supreme Court’s
abortion cases, they recognize this point. As Justices O’Connor,
Kennedy, and Souter wrote for the Court in Planned Parenthood of
Southeastern Pennsylvania v. Casey,
Abortion is a unique act. It is an act fraught with
consequences for others: for the woman who must live with
the implications of her decision; for the persons who perform
and assist in the procedure; for the spouse, family, and
society which must confront the knowledge that these
procedures exist, procedures some deem nothing short of an
act of violence against innocent human life; and, depending
on one’s beliefs, for the life or potential life that is aborted.
505 U.S. 833, 852, 112 S. Ct. 2791, 2807 (1992). Accordingly, in Casey,
the Court concluded, “Though the woman has a right to choose to
terminate or continue her pregnancy before viability, it does not at all
follow that the State is prohibited from taking steps to ensure that this
choice is thoughtful and informed.” Id. at 872, 112 S. Ct. at 2818
(plurality opinion). “States are free to enact laws to provide a reasonable
framework for a woman to make a decision that has such profound and
lasting meaning.” Id. at 873, 112 S. Ct. at 2818.
Unfortunately, the majority opinion lacks this sense of balance and
perspective. Forgoing accepted methods of constitutional interpretation,
the opinion instead relies at times on an undertone of moral criticism
toward abortion opponents. From reading the majority opinion, one
would barely know that abortion—with few exceptions—was
69
continuously illegal in Iowa from the time our constitution was adopted
until the United Supreme Court overrode our law by deciding Roe v.
Wade, 410 U.S. 113, 93 S. Ct. 705 (1973). From reading the majority
opinion, one would scarcely be aware that many women in Iowa are pro-
life and strongly support the same law the court concludes
unconstitutionally discriminates against them.
After considering the text, original meaning, and subsequent
interpretation of the constitutional provisions at issue, the record in this
case, the district court’s carefully written decision, and abortion cases
from around the country, I conclude that the waiting period in Senate
File 471 does not violate either article I, section 9 or article I, section 6 of
the Iowa Constitution.
I. The Majority Disregards the Text and Original
Understanding of the Constitutional Provisions at Issue.
I will begin where constitutional interpretation ought to begin: with
the relevant constitutional provisions. 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. Article I, section 6 provides, “All laws of a
general nature shall have a uniform operation; 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.” Id. art. I, § 6.
Neither provision as worded or as originally understood supports a
right—let alone a fundamental right—to terminate a pregnancy. I will
examine article I, section 9 first. The majority presumably concludes
that a law mandating a 72-hour waiting period for an abortion is a
“depriv[ation] of . . . liberty . . . without due process of law.” Id. art. I, § 9
(emphasis added).
70
This sounds like a contradiction. How can a law deny due process
of law? Indeed, our framers would have found the notion of substantive
due process as self-contradictory as it sounds. 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.”
1 The Debates of the Constitutional Convention of the State of Iowa 101–
02 (W. Blair Lord rep., 1857) [hereinafter The Debates],
www.statelibraryofiowa.org/ services/collections/law-library/iaconst.
The due process clause, in other words, guarantees certain procedures.
The idea of substantive due process would have made no sense to our
framers.
Turning to article I, section 6, it consists of two clauses: one
requiring uniformity and the other prohibiting special privileges and
immunities. Iowa Const. art. I, § 6. A 72-hour waiting period for an
abortion is uniform, and it doesn’t grant a special privilege.
An article that I cowrote examined the original understanding of
article I, section 6. Edward M. Mansfield & Conner L. Wasson, Exploring
the Original Meaning of Article I, Section 6 of the Iowa Constitution, 66
Drake L. Rev. 147 (2018). I won’t repeat the article, which goes into the
convention debates and other contemporary sources, but the article
concludes, “The uniformity clause was designed to be a barrier against
geographic discrimination, the privileges and immunities clause a barrier
against government-bestowed monopolies (or oligopolies).” Id. at 201.
Additionally, the Iowa Constitution—including article I, section 9
and article I, section 6—became effective on September 3, 1857. Six
71
months later, on March 15, 1858, the general assembly adopted a law
making abortion a crime under all circumstances, “unless the same shall
be necessary to preserve the life of such woman.” 1858 Iowa Acts ch. 58,
§ 1 (codified at Revisions of 1860, Statutes of Iowa § 4221). Abortion
remained generally illegal in Iowa until Roe v. Wade was decided over one
hundred years later. Given this timing, i.e., the fact that a ban on
abortion was adopted right after the constitution became effective, it is
difficult to conceive that a legislatively mandated waiting period for
abortion would have violated the original understanding of either article
I, section 9 or article I, section 6.
Of course, “originalism is not the only available tool in
constitutional interpretation.” State v. Seats, 865 N.W.2d 545, 577 (Iowa
2015) (Mansfield, J., dissenting). But the majority wants it both ways.
In the first part of its opinion, the majority quotes a number of broad,
general pronouncements by the framers of our constitution at the 1857
convention. Yet the majority ignores that which is far more relevant—
(1) the text those framers actually approved, and (2) what they said
concerning the meaning of that text. For example, the majority quotes
Mr. Ells’s general remarks on the importance of a Bill of Rights, but
ignores what Mr. Ells said specifically one page later concerning the
meaning of the due process clause. See 1 The Debates at 101–02.
Yes, the framers debated and adopted an extensive bill of rights.
But they did so because the specific text and meaning of each right
mattered.
The majority tries to align itself with two opinions of our court from
the 1970s and one opinion from 2016, implying that they endorsed its
notion of a living constitution. See Griffin v. Pate, 884 N.W.2d 182 (Iowa
72
2016); In re Johnson, 257 N.W.2d 47 (Iowa 1977); Pitcher v. Lakes
Amusement Co., 236 N.W.2d 333 (Iowa 1975). There is a difference.
Pitcher presented the question whether a rule allowing for
nonunanimous civil jury verdicts violated article I, section 9 of the Iowa
Constitution. 236 N.W.2d at 334. We held it did not. Id. at 338. We
reasoned that article I, section 9 preserved “the general concept of a right
to jury trial” but did not freeze every characteristic that a jury trial had in
1857. Id. As we stated, “From obvious necessity a carefully limited
flexibility was developed in the construction of constitutions.” Id. at 336.
Johnson involved a constitutional challenge to the lack of jury
trials in juvenile delinquency proceedings. 257 N.W.2d at 48. We
concluded that neither article I, section 9 nor article I, section 10 of the
Iowa Constitution required jury trials. Id. at 48, 51. We pointed out that
the juvenile court system did not exist in 1857 and that a constitution’s
purpose is “to meet conditions neither contemplated nor foreseeable at
the time of its adoption.” Id. at 50.
Griffin involved the constitutionality of a law denying the vote to
anyone who had committed a felony. 884 N.W.2d at 185. This turned
on the meaning of “infamous crime” as used in our state constitution.
Id. We said that “the concept of infamy is not locked into a past
meaning”; it could evolve. Id. at 186. However, even based on
“community standards of today,” all felonies remained infamous crimes,
and there was no constitutional violation. Id. at 198.
Thus, in all three cases—Pitcher, Johnson, and Griffin—we
recognized that the Iowa Constitution was living in the sense that it
could adapt to legislative enactments reflecting new societal needs. See
Griffin, 884 N.W.2d at 185–86, 198–205; Johnson, 257 N.W.2d at 48;
Pitcher, 236 N.W.2d at 334–35. This makes sense, since it is primarily
73
the job of the elected branches of government, not the judiciary, to be
responsive to changing conditions. “Statutes do not serve as
constitutional definitions but provide us the most reliable indicator of
community standards to gauge the evolving views of society important to
our analysis.” Griffin, 884 N.W.2d at 198.
This case involves something quite different. Here, by contrast, the
majority has used the living constitution not as a means of adapting to
“the community standard expressed by our legislature,” id. at 205, but
as a way of erecting a strict scrutiny barrier to legislative action without
reference to the constitutional text or history.
We may not personally agree with the legislature’s judgments. I
made it clear that I did not believe someone convicted of a felony who
had completed her or his sentence should be denied the right to vote.
Chiodo v. Section 43.24 Panel, 846 N.W.2d 846, 863 (Iowa 2014)
(Mansfield, J., specially concurring). In the end, though, that’s
irrelevant.
II. The Majority’s One-Sided Substantive Due Process Analysis
Does Not Give Due Consideration to the Interests on Each Side.
Although I doubt that our framers contemplated substantive due
process as part of article I, section 9, our court does have a line of
substantive due process cases in the area of parenting and procreation.
The majority cites these. See McQuistion v. City of Clinton, 872 N.W.2d
817, 833 (Iowa 2015) (recognizing a fundamental right to procreate); In re
Guardianship of Kennedy, 845 N.W.2d 707, 714–15 (Iowa 2014)
(recognizing a fundamental right to procreate); State v. Seering, 701
N.W.2d 655, 663–64 (Iowa 2005) (recognizing a right to live with one’s
family); Callender v. Skiles, 591 N.W.2d 182, 190–92 (Iowa 1999)
(recognizing the due process rights of a biological father); Olds v. Olds,
74
356 N.W.2d 571, 574 (Iowa 1984) (recognizing that how to parent a child
implicates a fundamental liberty interest).
I agree with the majority to this extent: One can reasonably read
these precedents and conclude that laws relating to abortion also
implicate substantive due process rights. Still, there is a crucial
difference. In none of those other areas was there a fundamental interest
on the other side of the ledger. The fact that there are two profound
concerns—a woman’s autonomy over her body and human life—has to
drive any fair-minded constitutional analysis of the problem. As I have
already pointed out, it underlies the “undue burden” standard set forth
in Casey.
Regrettably, instead of admitting there are two weighty concerns,
the majority eloquently describes one of these concerns while
diminishing the other. Thus, the majority states, and I agree, that
“[a]utonomy and dominion over one’s body go to the very heart of what it
means to be free.” And later the majority defines abortion in terms of
“[w]hether a woman is personally prepared and capable of assuming life-
altering obligations and expectations.” I agree that being a parent is a
life-altering obligation that falls unevenly on women in our society.
But abortion has another aspect to which the majority gives short
shrift. Referring to the anti-abortion side, the 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.
75
To be clear, many if not most abortion opponents view it as ending
a life. 8
III. Since Casey, Most Waiting Periods Have Been Upheld
Under the Undue Burden Standard.
The relevant United States Supreme Court precedent on waiting
periods is Casey, 505 U.S. 833, 112 S. Ct. 2791. In Casey, the Supreme
Court rejected a constitutional challenge to the waiting period in the
Pennsylvania Abortion Control Act of 1982, which required that a woman
seeking an abortion be given specified information at least twenty-four
hours before the abortion was performed. Id. at 844, 112 S. Ct. at 2803
(majority opinion).
Thus, the Supreme Court held a state’s regulation of abortion will
not be deemed unconstitutional unless it is an undue burden on the
woman’s right. Id. at 877, 112 S. Ct. at 2820–21 (plurality opinion). A
regulation is an undue burden if “its purpose or effect is to place a
substantial obstacle in the path of a woman seeking an abortion before
the fetus attains viability.” Id. at 878, 112 S. Ct. at 2821. Nevertheless,
“not every law which makes a right more difficult to exercise is, ipso
8Iam also troubled by the majority’s view that failing to recognize abortion “as a
fundamental right” is legally equivalent to upholding laws against “homosexual
sodomy.” In Lawrence v. Texas, the Supreme Court noted there was only limited
historical basis for such sodomy laws and even more limited historical basis for their
enforcement. 539 U.S. 558, 567–71, 123 S. Ct. 2472, 2478–80 (2003). The Court
concluded, “Laws prohibiting sodomy do not seem to have been enforced against
consenting adults acting in private.” Id. at 569; 123 S. Ct. at 2479.
Apart from any historical differences, there is a more basic difference between
an act which many view as extinguishing a human life and one which affects nobody
but its participants. For the Lawrence Court, it was dispositive that the state was
relying entirely on moral concerns to ban purely private conduct between consenting
adults that did not involve “injury to a person.” Id. at 567, 123 S. Ct. at 2478.
Obviously, the Supreme Court does not share the majority’s theory of equivalence
because it invalidated a law against homosexual sodomy in Lawrence but has adhered
to the undue burden test set forth in Casey.
76
facto, an infringement of that right.” Id. at 873, 112 S. Ct. at 2818. The
Court elaborated,
Numerous forms of state regulation might have the
incidental effect of increasing the cost or decreasing the
availability of medical care, whether for abortion or any other
medical procedure. The fact that a law which serves a valid
purpose, one not designed to strike at the right itself, has the
incidental effect of making it more difficult or more expensive
to procure an abortion cannot be enough to invalidate it.
Only where state regulation imposes an undue burden on a
woman’s ability to make this decision does the power of the
State reach into the heart of the liberty protected by the Due
Process Clause.
Id. at 874, 112 S. Ct. at 2819. “Not all burdens on the right to decide
whether to terminate a pregnancy will be undue.” Id. at 876, 112 S. Ct.
at 2820.
Contrary to the majority’s view, Casey’s undue burden standard
was not an unprincipled decision by Justices O’Connor, Kennedy, and
Souter “to deviate downward” in constitutional jurisprudence. It was an
effort to recognize the unique status of this particular constitutional
conflict between a woman’s autonomy and respect for human life.
Based upon this framework, the Supreme Court concluded the 24-
hour waiting period imposed by the Pennsylvania law was constitutional
and not an undue burden. Id. at 887, 112 S. Ct. at 2826. It stated,
The idea that important decisions will be more informed and
deliberate if they follow some period of reflection does not
strike us as unreasonable, particularly where the statute
directs that important information become part of the
background of the decision.
Id. at 885, 112 S. Ct. at 2825. In so doing, the Court acknowledged
many of the arguments raised here by Planned Parenthood:
The findings of fact by the District Court indicate that
because of the distances many women must travel to reach
an abortion provider, the practical effect will often be a delay
of much more than a day because the waiting period requires
77
that a woman seeking an abortion make at least two visits to
the doctor. The District Court also found that in many
instances this will increase the exposure of women seeking
abortions to “the harassment and hostility of anti-abortion
protestors demonstrating outside a clinic.” As a result, the
District Court found 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.”
Id. at 885–86, 112 S. Ct. at 2825 (emphasis added) (quoting Planned
Parenthood of Se. Pa. v. Casey, 744 F. Supp. 1323, 1351–52 (E.D. Pa.
1990)).
Yet in the end, the Casey Court concluded that the waiting period,
despite “increasing the cost and risk of delay of abortions,” was not a
substantial obstacle to the woman’s ultimate decision. Id. at 886, 112
S. Ct. at 2825 (quoting Casey, 744 F. Supp. at 1378). As one court has
put it, “Casey thus makes clear that the substantial obstacle test is, as
the name suggests, substantial.” Tucson Women’s Ctr. v. Ariz. Med. Bd.,
666 F. Supp. 2d 1091, 1098 (D. Ariz. 2009). Particularly,
[i]t requires more than State-sponsored informed consent
and State-sponsored advocacy for childbirth. It requires
more than delay and inconvenience. Indeed, even when the
restriction in question is “particularly burdensome” for
women with few financial resources, women who must travel
long distances, and women who may have difficulty
explaining their whereabouts to husbands, employers, or
others, the Supreme Court held that the burden does not
rise to the level of a substantial obstacle that invalidates the
statute.
Id.; see also Karlin v. Foust, 188 F.3d 446, 484, 486 (7th Cir. 1999); Utah
Women’s Clinic, Inc. v. Leavitt, 844 F. Supp. 1482, 1487–88 (D. Utah
1994), rev’d in part on other grounds, appeal dismissed in part, 75 F.3d
564 (10th Cir. 1995).
Waiting periods are not uncommon in Iowa law. We have a three-
day waiting period for marriage. See Iowa Code § 595.4 (2018). There is
78
a 72-hour waiting period after birth for adoption. See id. § 600A.4(2)(g).
There is a ninety-day waiting period for divorce. See id. § 598.19. All of
these waiting periods implicate fundamental constitutional interests in
marriage and parenting. The legislature mandated waiting periods to
ensure these important life decisions were made after time for reflection.
No one can reasonably question the legislature’s power to impose these
waiting periods before Iowans begin or end a marriage or give up a
newborn baby for adoption. So why can’t the legislature impose a
waiting period before an abortion?
A clear majority of courts since Casey have upheld abortion
waiting periods under both state and federal constitutions. See
Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 372–74 (6th Cir.
2006) (finding a 24-hour waiting period mandated by Ohio law not an
undue burden); A Woman’s Choice–E. Side Women’s Clinic v. Newman,
305 F.3d 684, 685, 692–93 (7th Cir. 2002) (declaring an 18-hour waiting
period under Indiana law not an undue burden); Karlin, 188 F.3d at 485–
86 (finding that a 24-hour delay imposed hardships “generally no
different than those the Court in Casey held did not amount to an undue
burden”); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452,
1467 (8th Cir. 1995) (noting South Dakota’s 24-hour waiting period was
“virtually identical” to those previously upheld and was not an undue
burden); Fargo Women’s Health Org. v. Schafer, 18 F.3d 526, 527, 535
(8th Cir. 1994) (finding arguments raised against North Dakota’s 24-hour
waiting period were “substantially similar” to those raised in Casey and
provision not an undue burden); Barnes v. Moore, 970 F.2d 12, 14–15
(5th Cir. 1992) (per curiam) (noting Mississippi’s 24-hour waiting period
was not an undue burden under Federal Constitution); Tucson Women’s
Ctr., 666 F. Supp. 2d at 1104–05 (declining to issue preliminary
79
injunction because “[p]laintiffs have failed to show that they are likely to
succeed in their claim that the 24–hour provision imposes an undue
burden on the right of Arizona women to an abortion”); Summit Med. Ctr.
of Ala., Inc. v. Siegelman, 227 F. Supp. 2d 1194, 1206 (M.D. Ala. 2002)
(refusing to enjoin Alabama’s Woman’s Right to Know Act, which
provided 24-hour waiting period); Eubanks v. Schmidt, 126 F. Supp. 2d
451, 456 (W.D. Ky. 2000) (“Simply put, the twenty-four hour informed
consent period makes abortions marginally more difficult to obtain, but
. . . it does not fundamentally alter any of the significant preexisting
burdens facing poor women who are distant from abortion providers.”);
Leavitt, 844 F. Supp. at 1487–88 (“Even if [Utah law] were to specifically
mandate two visits to the abortion clinic for every woman, it could not be
found facially unconstitutional on those grounds.”); Clinic for Women, Inc.
v. Brizzi, 837 N.E.2d 973, 976, 987–88 (Ind. 2005) (concluding Indiana’s
18-hour waiting period was not an undue burden under Indiana
Constitution); Pro-Choice Miss. v. Fordice, 716 So. 2d 645, 656 (Miss.
1998) (“Because the mandatory consultation and twenty-four hour delay
ensures that a woman has given thoughtful consideration in deciding
whether to obtain an abortion, [Mississippi law] does not create an
undue burden and is therefore constitutional.”); 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) (concluding Missouri’s 24-hour
waiting period was not an undue burden); Preterm Cleveland v.
Voinovich, 627 N.E.2d 570, 579 (Ohio Ct. App. 1993) (finding no facial
invalidity under Ohio Constitution of a law establishing a 24-hour
waiting period).
Two state supreme courts have invalidated waiting periods after
rejecting the undue burden test. Gainesville Woman Care, LLC v. State,
80
210 So. 3d 1243, 1254, 1263–64 (Fla. 2017) (enjoining a 24-hour waiting
period under Florida Constitution); Planned Parenthood of Middle Tenn. v.
Sundquist, 38 S.W.3d 1, 16, 24 (Tenn. 2000) (invalidating Tennessee’s
48-hour waiting period). As I discuss below, one of those states (Florida)
has express privacy language in its constitution; the other state case
(Tennessee) is no longer controlling law in Tennessee because it was
overruled by a constitutional amendment. 9
Also, in Planned Parenthood of Delaware v. Brady, the court
enjoined a 24-hour waiting period because the law lacked an exception
for a medical emergency that was not life-threatening. 250 F. Supp. 2d
405, 410 (D. Del. 2003). In any event, Senate File 471 includes
exceptions both to protect the mother’s life and for a medical emergency.
2017 Iowa Acts ch. 108, § 1 (codified at Iowa Code § 146A.1(2)(b))
(“Compliance with the prerequisites of this section shall not apply
to . . . [a]n abortion performed in a medical emergency.”).
Only two trial courts have invalidated waiting periods while
applying the undue burden test. See Planned Parenthood of Ind. & Ky.,
Inc. v. Comm’r, Ind. State Dep’t of Health, 273 F. Supp. 3d 1013, 1043
9The amendment provides in part, “Nothing in this Constitution secures or
protects a right to abortion or requires the funding of an abortion.” Tenn. Const. art. I,
§ 36. The dissent in Sundquist turned out to be prescient:
Undoubtedly, the issue of abortion is one of the most
controversial and fiercely debated political issues of our time, and any
resolution of this issue can only be achieved through deliberative,
thoughtful, and public dialogue. Nevertheless, with its decision today,
the Court has elevated one extreme of this debate to a constitutional level
and has made any meaningful compromise on this issue all but
impossible. The Court has done so simply by proclaiming that the right
to obtain an abortion is “fundamental” under the Tennessee
Constitution, and that as such, our Constitution effectively removes from
the General Assembly any power to reach a reasonable compromise that
considers all of the important interests involved.
38 S.W.3d at 25 (Barker, J., dissenting in part and concurring in part).
81
(S.D. Ind. 2017) (granting preliminary injunction against enforcement of
an Indiana law that required an 18-hour waiting period and an
ultrasound before obtaining abortion) (appeal pending); Planned
Parenthood of Minn., N.D., S.D. v. Daugaard, 799 F. Supp. 2d 1048,
1065–66 (D.S.D. 2011) (concluding South Dakota’s 72-hour delay was an
undue burden); see also June Med. Servs. v. Gee, 280 F. Supp. 3d 849,
869 (M.D. La. 2017) (denying a motion to dismiss a challenge to a 72-
hour waiting period in Louisiana because the plaintiffs sufficiently
pleaded that the law imposed an undue burden).
Eight states have laws currently in force with waiting periods
longer than twenty-four hours. See Ala. Code § 26-23A-4(a) (Westlaw
current through 2018-579) (forty-eight hours); Ark. Code Ann. § 20-16-
1703(b)(1) (West, Westlaw current through 2018 Fiscal Sess. & 2d
Extraordinary Sess.) (forty-eight hours); La. Stat. Ann. § 1061.17(B)(3)(a)
(Westlaw current through 2018 1st Extraordinary Sess.) (seventy-two
hours); Mo. Ann. Stat. § 188.039(2) (West, Westlaw current through 2018
2d Reg. Sess.) (seventy-two hours); N.C. Gen. Stat. Ann. § 90-21.82(1)
(West, Westlaw current through 2017 Reg. Sess.) (seventy-two hours);
Okla. Stat. Ann. tit. 63, § 1-738.2(B)(1) (West, Westlaw current through
ch. 17 of 2d Extraordinary Sess.) (seventy-two hours); Tenn. Code Ann.
§ 39-15-202(d)(1) (West, Westlaw current through 2018 2d Reg. Sess.)
(forty-eight hours); Utah Code Ann. § 76-7-305(2)(a) (West, Westlaw
current through various chs. of 2018 Gen. Sess.) (seventy-two hours).
As the foregoing discussion indicates, the United States Supreme
Court has upheld a 24-hour waiting period in Casey; other courts
generally follow Casey; and several other states besides Iowa have 72-
hour waiting periods in effect that have not been enjoined.
82
Planned Parenthood’s main argument against the constitutionality
of the waiting period in Senate File 471 is that it will require a woman to
make “two trips” in order to obtain an abortion. I do not discount this
argument. However, this precise argument was made and rejected in
Casey. The majority makes no attempt to distinguish Casey. In the end,
I don’t think one can distinguish it. The majority simply says it is not
the test under the Iowa Constitution.
IV. Other States Apply the Undue Burden Standard Under
Their State Constitutions, and Those That Don’t Generally Have
Privacy Language Not Found in Iowa’s Constitution.
A number of states have relied on the undue burden test in
evaluating the constitutionality of abortion restrictions under their state
constitutions. Hope Clinic for Women, Ltd. v. Flores, 991 N.E.2d 745,
757, 763 (Ill. 2013); Brizzi, 837 N.E.2d at 983–84 (applying a “material
burden” standard under the Indiana Constitution that is “the equivalent
of Casey’s undue burden test”); Hodes & Nauser, MDs, P.A. v. Schmidt,
368 P.3d 667, 676 (Kan. Ct. App. 2016) (en banc), review granted (Apr.
11, 2016); Fordice, 716 So. 2d at 655; Nixon, 185 S.W.3d at 691–92; see
also Planned Parenthood Ariz., Inc. v. Am. Ass’n of Pro-Life Obstetricians &
Gynecologists, 257 P.3d 181, 189 (Ariz. Ct. App. 2011) (applying the
undue burden test after finding that the Arizona Constitution recognizes
no more expansive right to an abortion).
I acknowledge that some other states have rejected the undue
burden test, as the majority has done today. 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.
83
In Valley Hospital Ass’n v. Mat-Su Coalition for Choice, the Alaska
Supreme Court expressly rejected the undue burden test expounded in
Casey. 948 P.2d 963, 969 (Alaska 1997). The court relied on an Alaska
Constitution provision that states, “The right of the people to privacy is
recognized and shall not be infringed.” Id. at 968 (quoting Alaska Const.
art. I, § 22). The court noted that “[t]his express privacy provision was
adopted by the people in 1972” and “provides more protection of
individual privacy rights than the United States Constitution.” Id.
In Gainesville Woman Care, LLC, the Florida Supreme Court struck
down Florida’s mandatory 24-hour waiting period as violating the right to
privacy in the Florida Constitution added by voters in 1980. 210 So. 3d
at 1247, 1252, 1265. The court explained that this standard meant a
challenger had no obligation to show the law imposed an “undue burden
or significant restriction.” Id. at 1255.
Similarly, in Montana, the state supreme court struck down an
abortion restriction and rejected the undue burden standard. Armstrong
v. State, 989 P.2d 364, 384 (Mont. 1999). The court based its decision to
depart from federal precedent on the presence of a separate privacy
provision in the Montana Constitution, which had been added in 1972.
Id. at 372–74; see also Mont. Const. art. II, § 10 (adopted 1972).
Sundquist departed from federal precedent and declined to follow
the undue burden standard even though Tennessee’s constitution has no
specific privacy guarantee. 38 S.W.3d at 16–17. As previously noted,
though, that decision was overturned by a Tennessee constitutional
amendment. See Tenn. Const. art. I, § 36 (amended 2014).
84
Hence, states relying on the due process clauses of their state
constitutions typically have applied the undue burden test. 10
Like those other state courts, I would apply Casey under the Iowa
Constitution, at least until the Supreme Court offers a different legal
standard for our consideration. As of now, I am persuaded by the
thoughtful and nuanced analysis undertaken by Justices O’Connor,
Kennedy, and Souter for the Supreme Court plurality in Casey.
The majority’s requirement of “strict scrutiny” and “narrow
tailoring”—combined with its rejection of Casey’s undue burden
standard—would make any abortion restriction very difficult to sustain.
In recent years, only in the areas of sexually violent predators and
termination of parental rights have we found that a law or ordinance
passed strict scrutiny review in our court. Compare In re L.M., 654
N.W.2d 502, 505–07 (Iowa 2002), and In re Det. of Garren, 620 N.W.2d
275, 286 (Iowa 2000), with Mitchell County v. Zimmerman, 810 N.W.2d 1,
16–18 (Iowa 2012), In re A.W., 741 N.W.2d 793, 811 (Iowa 2007), Spiker
v. Spiker, 708 N.W.2d 347, 352 (Iowa 2006), In re S.A.J.B., 679 N.W.2d
645, 650–51 (Iowa 2004), Lamberts v. Lillig, 670 N.W.2d 129, 133 (Iowa
2003), and Santi v. Santi, 633 N.W.2d 312, 321 (Iowa 2001).
The majority caricatures the undue burden test. It says that such
a test enables the State to adopt any abortion restriction “so long as it
stop[s] just short of requiring women to move heaven and earth.” I am
10Some states have applied strict scrutiny to abortion legislation, but have
neither approved nor rejected the undue burden test. See Doe v. Maher, 515 A.2d 134,
156–57 (Conn. Super. Ct. 1986); Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387, 402–04
(Mass. 1981); Women of State of Minn. ex rel. Doe v. Gomez, 542 N.W.2d 17, 31 (Minn.
1995); Right to Choose v. Byrne, 450 A.2d 925, 933–34 (N.J. 1982).
Michigan state courts have found no right to an abortion at all in their state
constitution. Mahaffey v. Att’y Gen., 564 N.W.2d 104, 109–11 (Mich. Ct. App. 1997).
85
puzzled by this hyperbole. It ignores the fact that Casey struck down
one of Pennsylvania’s laws—a spousal-notification provision—under the
undue burden test, even though the law had a number of exceptions.
505 U.S. at 887–98, 112 S. Ct. at. 2826–31 (majority opinion). It ignores
the fact that two abortion waiting periods have been enjoined by federal
district courts under the undue burden test. Planned Parenthood of Ind.
& Ky., Inc., 273 F. Supp. 3d at 1043; Planned Parenthood of Minn., N.D.,
S.D., 799 F. Supp. 2d at 1065–66. It ignores the fact that our court has
repeatedly struck down laws in other areas even when applying a more
forgiving standard than the undue burden test. See, e.g., Hensler v. City
of Davenport, 790 N.W.2d 569, 588–89 (Iowa 2010); State v. Dudley, 766
N.W.2d 606, 617, 622 (Iowa 2009); Varnum v. Brien, 763 N.W.2d 862,
896, 904 (Iowa 2009); Racing Ass’n of Cent. Iowa v. Fitzgerald, 675
N.W.2d 1, 16 (Iowa 2004). 11
11Besides the Casey undue burden test and the majority’s approach, there is a
third alternative. In Casey, four dissenters took the following position:
The States may, if they wish, permit abortion on demand, but the
Constitution does not require them to do so. The permissibility of
abortion, and the limitations upon it, are to be resolved like most
important questions in our democracy: by citizens trying to persuade one
another and then voting.
505 U.S. at 979, 112 S. Ct. at 2873 (Scalia, J., concurring in the judgment in part and
dissenting in part).
On a blank slate, I might agree with this view, but we have now been living
under Casey for a generation. Although Casey is inconsistent with the original
understanding of our framers, substantive due process has evolved and our court has
previously indicated that article I, section 9 protects certain rights related to procreation
and families. See McQuistion, 872 N.W.2d at 833; Callender, 591 N.W.2d at 190–91. As
I’ve already noted, a number of state supreme courts have followed Casey under their
own constitutions. The State does not advocate for a standard other than the Casey
undue burden test in this case. In the past, I have criticized our court for “freelancing
under the Iowa Constitution without the benefit of an adversarial presentation.” State
v. Tyler, 830 N.W.2d 288, 299 (Iowa 2013) (Mansfield, J., dissenting). For now, I find
Casey persuasive.
86
V. The Waiting Period in Senate File 471 Does Not Violate the
Undue Burden Standard.
I must now confront whether the waiting period in Senate File 471
passes the undue burden test. The issue is a close one, but I believe it
does.
To begin with, I believe the 72-hour waiting period—like other
waiting periods for important decisions—serves a legitimate purpose.
Although various studies were discussed in the district court, only the
Utah study directly addresses the relevant issues. See Sarah C.M.
Roberts, et al., Utah’s 72-Hour Waiting Period for Abortion: Experiences
Among a Clinic-Based Sample of Women, 48 Persp. on Sexual & Reprod.
Health 179 (2016) [hereinafter Roberts].
This published, peer-reviewed study directly examined the effect of
Utah’s 72-hour waiting period by following up with a sample of 309
women who had sought abortion services. Id. Of these women, twenty-
seven reported that they were no longer seeking an abortion after the
mandatory waiting period. Id. at 182. This is approximately 8% of the
women surveyed. To quote the study itself, “Eight percent of women
reported changing their minds.” Id. at 185.
Approximately 4000 abortions are performed each year in Iowa,
approximately 3000 by Planned Parenthood. Thus, the State
extrapolates from the Utah data that a 72-hour waiting period would
likely result in 320 fewer abortions (8% of 4000) being performed in Iowa.
The majority concludes that the number is much lower because
only 2% out of the 8% started out certain they wanted to have an
abortion. Others were more conflicted. The majority then compares this
number to the 1 to 3% who change their minds in jurisdictions without
mandatory waiting periods.
87
The majority’s comparison is apples to oranges, however. If 8%
decide not to have an abortion when there is a waiting period and 1 to 3%
decide not to have an abortion when there is no waiting period, the
difference made by the waiting period is 5 to 7%, or approximately 200 to
280 fewer abortions per year.
Alternatively, one can subtract from the 8% the 3% who indicated
in the baseline survey that they preferred to have the baby, on the theory
that they would have been screened out by Planned Parenthood anyway.
That leaves 5% who wanted to have the abortion, even though some may
have had a degree of conflict.
In addition, the Utah study challenges the majority’s view as to the
overall burdens resulting from a 72-hour waiting period. The study
states, “[A]lthough some advocates argue that logistical difficulties
presented by two-visit requirements and waiting periods make women
unable to have abortions, this was not the case in our study cohort.” Id.
(footnote omitted)
Thus, based on a scholarly study of actual experience, a 72-hour
waiting period leads to at least 5 and potentially as much as 8% of
women changing their minds, but does not prevent a woman who still
wanted an abortion after the waiting period from getting one. It does
result in “logistical and financial difficulties, including increasing the
cost of having an abortion by about 10%.” Id.
Second, the majority overlooks the role of Planned Parenthood’s
own business decisions. In 2008, Iowa became the first state where
telemedicine abortions were widely performed. Planned Parenthood of the
Heartland, Inc. v. Iowa Bd. of Med., 865 N.W.2d 252, 255 & n.1 (Iowa
2015). A telemedicine abortion involves a remote video connection to a
physician who is not physically present in the clinic. Id. at 255.
 88
By October 2013, Planned Parenthood had fifteen clinics
throughout Iowa that provided abortion services. When the Iowa Board
of Medicine adopted a rule prohibiting telemedicine abortions, Planned
Parenthood sued to enjoin the rule and represented that it would be
forced to close clinics unless it could continue telemedicine abortions.
See id. at 261, 268. Applying the Casey standard under the Iowa
Constitution, we found in favor of Planned Parenthood and struck down
the rule. Id. at 269. We noted the board of medicine had adopted a
separate rule that generally approved the use of telemedicine in medical
procedures. Id. We further noted that there had been little discussion
before the board as to how the telemedicine abortion rule would protect a
woman’s health. Id. In sum, we said, “It is difficult to avoid the
conclusion that the Board’s medical concerns about telemedicine are
selectively limited to abortion.” Id. I joined the opinion because, under
Casey, I was not convinced the board’s telemedicine abortion rule served
its stated medical purpose. 12
12As we noted in our previous Planned Parenthood case, the Supreme Court
“applies the undue burden test differently depending on the state’s interest advanced by
a statute or regulation.” Planned Parenthood of the Heartland, 865 N.W.2d at 263. In
other words, Casey distinguished between health-related measures and informed-
choice measures for purposes of the undue burden test. See id. at 263–64; see also
Casey, 505 U.S. at 878, 112 S. Ct. at 2821 (plurality opinion). With a health-related
measure, we concluded that Casey “requires us to weigh the strength of the state’s
justification for a statute against the burden placed on a woman seeking to terminate
her pregnancy.” Planned Parenthood of the Heartland, 865 N.W.2d at 264.
A year later, the Supreme Court confirmed that we had read federal precedent
correctly. In Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down two
health-related restrictions on the performance of abortions, concluding that “neither of
these provisions confers medical benefits sufficient to justify the burdens upon access
that each imposes.” 579 U.S. ___, ___, 136 S. Ct. 2292, 2301 (2016).
This case, of course, involves the other prong of Casey: informed decision-
making.
89
Yet Planned Parenthood closed clinics anyway. Today it has five
clinics in Iowa. 13 If Planned Parenthood still operated fifteen clinics,
many of the concerns raised by the majority would not exist.
Planned Parenthood provided no information as to its budget or
finances. We are asked to take it on faith that Planned Parenthood could
not operate more clinics or open those clinics on more days by either
raising additional funds, reducing expenses, or using its existing funds
differently. As a nonprofit charitable entity, Planned Parenthood’s
operations are already subject to public scrutiny to a significant degree,
for example, through the filing of Form 990’s with the IRS.
Third, the majority relies a great deal on hypothetical examples
developed by a Wisconsin professor of community environmental
sociology. But this witness claimed—incorrectly—there are no data on
women who are actually unable to get an abortion because of waiting
periods. As she put it, “We have identified some factors that make some
women more vulnerable than others, but there is no data.” In fact, the
Utah study provided those data, and they showed one woman out of 309
was unable to have an abortion because the waiting period pushed her
outside the permissible time window. Roberts, 48 Persp. on Sexual
& Reprod. Health at 185.
Casey emphasized that under the undue burden test, “[w]hat is at
stake is the woman’s right to make the ultimate decision, not a right to
be insulated from all others in doing so.” 505 U.S. at 877, 112 S. Ct. at
2821 (plurality opinion). “[T]he State may take measures to ensure that
13Some but not all of the closings were due to the legislature’s decision no longer
to reimburse Planned Parenthood for providing family planning services. The majority
implicitly criticizes the legislature for cutting off funds for nonabortion-related services.
I believe we should not participate in this policy debate, which is not before us and is
not part of the present case.
90
the woman’s choice is informed, and measures designed to advance this
interest will not be invalidated as long as their purpose is to persuade
the woman to choose childbirth over abortion.” Id. at 878, 112 S. Ct. at
2821. “[U]nder the undue burden standard a State is permitted to enact
persuasive measures which favor childbirth over abortion, even if those
measures do not further a health interest.” Id. at 886, 112 S. Ct. at
2825.
Casey reasoned that “at some point increased cost could become a
substantial obstacle,” but a “slight” increase in cost would not be. Id. at
901, 112 S. Ct. at 2833. Casey also reasoned that “[t]he proper focus of
constitutional inquiry is the group for whom the law is a restriction, not
the group for whom the law is irrelevant.” Id. at 894, 112 S. Ct. at 2829.
The majority misconstrues this last statement from Casey. With a
facial challenge to a waiting period, under Casey, the plaintiff must
consider the group of persons for whom the law is a restriction.
Presumably, that is almost all women seeking an abortion in Iowa,
because almost all of them would not choose to wait seventy-two hours
after their initial abortion-related appointment to undergo the abortion.
The majority, however, focuses on subsets of those persons, such as rape
victims and the indigent. That would be appropriate for an as-applied
challenge, not a facial one. With a facial challenge, the plaintiff must
show that the law operates as a substantial obstacle in “a large fraction”
of the cases where it is a restriction at all. Id. at 895; 112 S. Ct. at
2830. 14
14I might agree with the majority that a 72-hour waiting period ought to have an
exception for victims of rape. The majority notes that Senate File 471 has no such
exception. Yet for the majority this is really beside the point because the majority
would invalidate the law with or without such an exception.
91
Having said all this, I believe the issue is indeed close. Common
sense tells me that waiting periods lead to more considered decision-
making and to some changes of mind. The Utah study quotes women
who, after the 72-hour waiting period, “just couldn’t do it” and changed
their mind. Roberts, 48 Persp. on Sexual & Reprod. Health at 182.
But common sense also tells me that requiring two trips will result
in emotional and financial costs. It will make it more difficult for some
women to have medication abortions and force them into riskier and
more invasive surgical abortions. Inevitably, a 72-hour waiting period
will end up being longer than seventy-two hours in many cases.
Ultimately, I give considerable weight to the empirical evidence
from Utah, to Casey’s express approval of a 24-hour period despite the
fact that it would necessitate two trips, and to other federal and state
court decisions sustaining waiting periods. I cannot conclude that the
72-hour waiting period in Senate File 471 is facially invalid under article
I, section 9 of the Iowa Constitution.
VI. The Waiting Period in Senate File 471 Does Not Violate
Article I, Section 6.
Article I, section 6 does not present as close a question for me. I
do not follow the majority’s reasoning that Senate File 471 violates equal
protection of the laws. 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.
See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270, 113
92
S. Ct. 753, 760 (1993) (“Whatever one thinks of abortion, it cannot be
denied that there are common and respectable reasons for opposing it,
other than hatred of, or condescension toward (or indeed any view at all
concerning), women as a class—as is evident from the fact that men and
women are on both sides of the issue.”).
The majority of course does not need to reach article I, section 6,
since it has already invalidated the 72-hour waiting period under article
I, section 9. Thus, I wonder if the majority is laying groundwork instead,
perhaps a stepping stone toward a ruling that Iowa’s Medicaid program
must fund abortions. See, e.g., Harris v. McRae, 448 U.S. 297, 338, 100
S. Ct. 2701, 2706 (1980) (Marshall, J., dissenting) (arguing that denial of
Medicaid funding for medically necessary abortions “is a form of
discrimination repugnant to the equal protection of the laws guaranteed
by the Constitution”).
In lieu of citing supportive caselaw, the majority asserts that
without the benefit of the majority’s ruling, women may “never fully
assume a position in society equal to men, who face no such similar
constraints for comparable sexual activity.”
This statement, to my mind, epitomizes the difficulties with the
majority opinion. I am confident that many Iowans wholeheartedly agree
with the court’s statement. However, I am equally confident many
Iowans are offended by it. Is it really the basis on which the court wishes
to render an enduring constitutional decision?
For the foregoing reasons, I would affirm the judgment of the
district court.
Waterman, J., joins this dissent.