Read the document: What the Iowa Supreme Court said (2024)

IN THE SUPREME COURT OF IOWANo. 23-1145Submitted April 11, 2024—Filed June 28, 2024PLANNED PARENTHOOD OF THE HEARTLAND, INC., EMMA GOLDMAN CLINIC,and SARAH TRAXLER,Appellees,VS.KIM REYNOLDS ex rel. STATE OF IOWA, and IOWA BOARD OF MEDICINE,Judge.Appellants.Appeal from the Iowa District Court for Polk County, Joseph Seidlin,In a case challenging the constitutionality of a law prohibiting abortionafter a fetal heartbeat is detected, the defendant state officials appeal the districtcourt's granting of a temporary injunction blocking enforcement of the law.REVERSED AND REMANDED.McDermott, J., delivered the opinion of the court, in which McDonald,Oxley, and May, JJ., joined. Christensen, C.J., filed a dissenting opinion, inwhich Mansfield and Waterman, JJ., joined. Mansfield, J., filed a dissentingopinion, in which Christensen, C.J., and Waterman, J., joined.Brenna Bird, Attorney General; Eric Wessan (argued), Solicitor General;and Daniel Johnston, Assistant Attorney General, for appellants.Peter Im (argued) of Planned Parenthood Federation of America, Washing-ton, D.C.; Rita Bettis Austen of American Civil Liberties Union of Iowa Founda-

2tion, Des Moines; Caitlin Slessor and Samuel E. Jones of Shuttleworth & Inger-soll, P.L.C., Cedar Rapids; and Dylan Cowit and Anjali Salvador of PlannedParenthood Federation of America, New York, New York, for appellees.John Eidsmoe, Montgomery, Alabama, for amici curiae Foundation forMoral Law and Lutherans for Life.David E. Fowler of Constitutional Government Defense Fund, Franklin,Tennessee, and Justin Reid of Reid Law Firm PLLC, Des Moines, for amici curiae32 State Family Policy Councils and Family Policy Alliance.Christopher E. Mills of Spero Law LLC, Charleston, South Carolina, andTimm Reid of Reid Law Firm PLLC, Des Moines, for amicus curiae AmericanCollege of Pediatricians.Peter M. Sand, West Des Moines, for amicus curiae American Associationof Pro-Life Obstetricians and Gynecologists.D. John Sauer of James Otis Law Group, LLC, St. Louis, Missouri, andDaniel A. Dlouhy of Dlouhy Law, PC, East Dubuque, Illinois, for amicus curiaeAlliance for Hippocratic Medicine.Theodore E. Rokita, Indiana Attorney General; James W. Barta, IndianaDeputy Solicitor General; and Thomas M. Bright, Indiana Deputy Attorney Gen-eral, Indianapolis, Indiana, for amici curiae State of Indiana and 16 Other States.Ryan Benn, Indianola, and Mario Diaz, Alexandria, Virginia, for amicuscuriae Concerned Women for America.Christopher P. Schandevel, John J. Bursch, and Erin M. Hawley, Lans-downe, Virginia; Noah H. Ridgway of Hagenow Gustoff & Karas LLP, Des Moines;and Jacob Phillips, Orlando, Florida, for amicus curiae Alliance Defending Free-dom.

3Chuck Hurley of the Family Leader, Urbandale, and Olivia F. Summers,Washington, D.C., for amici curiae 45 Members of the Iowa Legislature and theAmerican Center for Law & Justice.Inc.Alan R. Ostergren, Des Moines, for amicus curiae the Kirkwood Institute,Roxanne Barton Conlin and Devin C. Kelly of Roxanne Conlin & Associ-ates, P.C., Des Moines, for amicus curiae Interfaith Alliance of Iowa.Joshua S. Opperman and Sonci Kingery, Des Moines, for amici curiae IowaCoalition Against Domestic Violence and Iowa Coalition Against Sexual Assault.Sarah E. Wilson of Sarah E. Wilson Law Firm, PLC, Ankeny, and Julie E.Fink and Selena Kitchens of Kaplan Hecker & Fink LLP, New York, New York, foramicus curiae The National Infertility Association.Laura Schultes of RSH Legal, Cedar Rapids, and Jayme Jonat and Char-lotte Baigent of Holwell Shuster & Goldberg LLP, New York, New York, for amicuscuriae Medical Students for Choice.Scott M. Brennan, Tyler L. Coe, and Katelynn T. McCollough of DentonsDavis Brown, Des Moines; Diane Siegel Danoff and Christopher J. Merken ofDechert LLP, Philadelphia, Pennsylvania; and Nina S. Riegelsberger of DechertLLP, New York, New York, for amici curiae Non-Iowan Abortion Care Providers.Nicole A. Saharsky of Mayer Brown LLP, Washington, DC, and Dane Schu-mann of Capitol Counsel, P.L.L.C., Urbandale, for amici curiae American Collegeof Obstetricians and Gynecologists, American Medical Association, Society forMaternal-Fetal Medicine, Society of Family Planning, and American Society forReproductive Medicine.

4MCDERMOTT, Justice.The State asks us to dissolve a temporary injunction blocking enforcementof a statute that prohibits physicians, with certain exceptions, from performingan abortion after detecting a fetal heartbeat. In granting the injunction, the dis-trict court applied an “undue burden” test and concluded that the petitionerswere likely to succeed in their constitutional substantive due process challenge.The State asks us to dissolve that injunction, arguing that the district court ap-plied the wrong constitutional test and that the court must instead review theabortion restriction under the less demanding “rational basis” test.When a party alleges that a statute violates a due process right, the natureof the individual right at stake dictates the constitutional test that the courtapplies. Under our well-established tiers of scrutiny, if the government actionimplicates a “fundamental” right, we apply the strict scrutiny test and determinewhether the government's action is narrowly tailored to serve a compelling gov-ernment interest. But if the right at stake is not a fundamental right, then weapply the rational basis test and determine whether the law is rationally relatedto a legitimate state interest.We have previously held that abortion is not a fundamental right underthe Iowa Constitution. See Planned Parenthood of the Heartland, Inc. v. Reynoldsex rel. State (PPH 2022), 975 N.W.2d 710, 740 (Iowa 2022). Applying our estab-lished tiers of scrutiny, we hold that abortion restrictions alleged to violate thedue process clause are subject to the rational basis test. Employing that testhere, we conclude that the fetal heartbeat statute is rationally related to thestate's legitimate interest in protecting unborn life. We thus reverse the districtcourt order entering the temporary injunction blocking enforcement of the fetalheartbeat statute and remand for further proceedings.

5I.The law challenged in this case bars most abortions when there is a “de-tectable fetal heartbeat.” Iowa Code § 146E.2(2)(a) (2023). Under this statute, aphysician must perform an abdominal ultrasound to detect cardiac activity and“shall inform the pregnant woman, in writing,” whether any cardiac activity wasdetected and, if so, that “an abortion is prohibited.” Id. § 146E.2(1)(b)(1)–(2). Thepregnant woman must sign a form acknowledging receipt of this information. Id.§ 146E.2(1)(c).The statute includes exceptions that allow an abortion after detection of afetal heartbeat if there is a medical emergency or if the pregnancy resulted fromrape or incest. Id. §§ 146E.1(3)–(4), .2(2)(a). The medical emergency exceptionallows an abortion to “preserve the life of the pregnant woman whose life is en-dangered by a physical disorder, physical illness, or physical injury, including alife-endangering physical condition caused by or arising from the pregnancy.” Id.§ 146A.1(6)(a); id. § 146E.1(4). For the rape exception to apply, the rape must be"reported within forty-five days of the incident to a law enforcement agency or toa public or private health agency which may include a family physician.” Id.§ 146E.1(3)(a). The incest exception applies if the incest “is reported within onehundred forty days of the incident to a law enforcement agency or to a public orprivate health agency which may include a family physician.” Id. § 146E.1(3)(b).Abortions are almost entirely prohibited when a fetal heartbeat is detectedafter twenty or more weeks. See id. § 146E.2(2)(b). The only exceptions after thatdate are when “in the physician's reasonable medical judgment the pregnantwoman has a condition which the physician deems a medical emergency” orwhen "the abortion is necessary to preserve the life of an unborn child.” Id.This statute came into being after Governor Kim Reynolds called a specialsession of the Iowa Legislature for “the sole purpose of enacting legislation that

6addresses abortion and protects unborn lives." Press Release, Off. of the Gover-nor of Iowa, Gov. Reynolds Calls Special Session to Enact Pro-life Legislation(July 5, 2023), https://governor.iowa.gov/press-release/2023-07-05/gov-reyn-olds-calls-special-session-enact-pro-life-legislation[https://perma.cc/7YLY-YDD9]. On July 11, 2023, at that special session, the legislature passed a fetalheartbeat bill nearly mirroring an earlier fetal heartbeat statute enacted in 2018.Compare 2023 Iowa Acts ch. 1, §§ 1-2 (codified at Iowa Code §§ 146E.1, .2(2024)), with 2018 Iowa Acts ch. 1132, §§ 3–4 (codified at Iowa Code §§ 146C.1,.2 (2019)). Governor Reynolds announced her plan to sign the bill at an event onJuly 14.On July 12, Planned Parenthood of the Heartland, Emma Goldman Clinic,and Sarah Traxler, M.D. (collectively, “Planned Parenthood”), filed a petition fordeclaratory judgment and injunctive relief. They named as defendants GovernorReynolds and the Iowa Board of Medicine (together, “the State”). The petition fordeclaratory judgment alleged that the fetal heartbeat statute violated three pro-visions in the Iowa Constitution: the due process clause in article I, § 9; the“inalienable rights” clause in article I, § 1; and the equal protection clause inarticle I, §§ 1 and 6. That same day, Planned Parenthood also moved for anemergency temporary injunction. Its motion asked the district court to block en-forcement of the statute until the court could rule on the merits of the constitu-tional challenge. The district court held a hearing on the motion on July 14—thesame day that Governor Reynolds signed the fetal heartbeat statute into law.On July 17, the district court held that Planned Parenthood had standingto bring its claims, the case was ripe, and that an injunction should be issuedbarring the State from enforcing the fetal heartbeat law until a final ruling in thecase. The district court also ordered that the Iowa Board of Medicine, which is

7tasked with creating administrative rules to implement the statute, should nev-ertheless proceed with rulemaking. The State sought interlocutory review of thedistrict court order, which we granted.II.The order challenged in this appeal was not a final judgment on the meritsbut rather an order granting a motion for temporary injunction. The State arguesthat the district court erred in its analysis and asks us to dissolve the temporaryinjunction. Although the district court discussed several considerations whendeciding whether to grant the temporary injunction, both the district court in itsorder and the parties in their briefs focus on whether Planned Parenthood canshow a "likelihood of success on the merits." Max 100 L.C. v. Iowa Realty Co.,621 N.W.2d 178, 181 (Iowa 2001) (en banc). For a court to enter a temporaryinjunction, the parties requesting it must convince the court that they are likelyto succeed at the conclusion of the case after all the evidence is heard. Leagueof United Latin Am. Citizens of Iowa v. Pate, 950 N.W.2d 204, 208–09 (Iowa 2020)(per curiam). Temporary injunctions are equitable remedies intended to preventirreparable harm from occurring before the court has had a chance to determineif the alleged legal wrong occurred. Id. at 209. There's no basis to provide a tem-porary remedy if a plaintiff cannot show a likelihood of success in ultimatelyproving that legal wrong. Id.Whether Planned Parenthood can show a likelihood of success on the mer-its depends heavily on the test the court applies to determine whether the statuteinfringes a constitutional right. A brief review of our court's recent opinions in-volving challenges to abortion restrictions sets the stage for our analysis.

8A.In 2015, we addressed a challenge to an administrative rule that restricted“telemedicine abortions” by requiring physicians to perform a physical examina-tion on pregnant patients before providing an abortion and to be physically pre-sent with them when an abortion drug is administered. See Planned Parenthoodof the Heartland, Inc. v. Iowa Bd. of Med. (PPH 2015), 865 N.W.2d 252, 253 (Iowa2015). Under the “undue burden” test created in Planned Parenthood of South-eastern Pennsylvania v. Casey, federal law at the time prohibited abortion re-strictions that had “the purpose or effect of placing a substantial obstacle in thepath of a woman seeking an abortion of a nonviable fetus.” 505 U.S. 833, 877-79(1992) (plurality opinion). We made no determination in PPH 2015 whether theIowa Constitution provided an independent right to obtain an abortion, acceptinginstead the Iowa Board of Medicine's concession that any state constitutionalright was "coextensive with the right available under the United States Consti-tution.” 865 N.W.2d at 254. Applying the federal undue burden standard, weheld that the statute violated due process. Id. at 269.In 2018, the legislature passed a statute prohibiting abortion “when it hasbeen determined that the unborn child has a detectable fetal heartbeat, unless,in the physician's reasonable medical judgment,” one of several exceptions ap-plies. 2018 Iowa Acts ch. 1132, § 4 (codified at Iowa Code § 146C.2(2) (2019)).Planned Parenthood filed a petition for declaratory judgment and for an injunc-tion to prevent enforcement of the statute. The State stipulated to the temporaryinjunction, but it continued to litigate the underlying constitutional issues, ar-guing in a motion to dismiss that the Iowa Constitution did not protect a rightto abortion.While that motion awaited a ruling in the district court, we issued an opin-ion in a different case challenging the constitutionality of a separate statute that

9imposed a seventy-two-hour waiting period between appointments with a physi-cian before the physician could perform an abortion. See Planned Parenthood ofthe Heartland v. Reynolds ex rel. State (PPH 2018), 915 N.W.2d 206, 212 (Iowa2018). In determining the type of right at issue-and thus the constitutionalstandard of review for the challenged statute—we held that abortion was a fun-damental right under the Iowa Constitution. Id. at 237. We applied the test as-sociated with fundamental rights—the "strict scrutiny" test-to the seventy-two-hour waiting period and held that the statute violated both the due process andequal protection clauses of the Iowa Constitution. Id. at 241–244, 244–46. Twojustices dissented. Id. at 246 (Mansfield, J., dissenting, joined by Waterman, J.).The dissent argued that declaring abortion a fundamental right under the IowaConstitution lacked both a textual and historical basis. Id. at 246–47. The dis-sent would have applied Casey's undue burden standard (the federal standardat the time) in analyzing the constitutionality of the waiting period statute. Id. at254.In the wake of PPH 2018, the State withdrew its motion to dismiss, andPlanned Parenthood moved for summary judgment. In January 2019, the districtcourt applied strict scrutiny and concluded that the original fetal heartbeat lawviolated the due process and equal protection clauses of the Iowa Constitution.The district court granted Planned Parenthood's motion for summary judgmentand entered a permanent injunction preventing the state from enforcing the stat-ute. The State did not appeal at that time.In June 2020, the legislature enacted a different waiting period statutethat imposed a shorter duration—twenty-four hours-between appointmentswith a physician before obtaining an abortion. See PPH 2022, 975 N.W.2d at 718.Planned Parenthood promptly sued and sought a temporary injunction to blockenforcement of the statute. Id. at 719. The district court applied PPH 2018's strict

10scrutiny standard and determined that the twenty-four-hour waiting period re-quirement was unconstitutional. Id. at 720.On appeal, we reconsidered PPH 2018's holding that abortion was afundamental right. Id. at 735-36. We noted that other state courts that hadrecognized a right to abortion under the due process clause of their stateconstitutions had “overwhelmingly found that the right . . . is no broader thanthe federal right (if it exists at all)." Id. at 738. We concluded that nothing in thetext of Iowa's Constitution-whether in the due process clause or elsewhere-refers to or includes protection for abortion. Id. at 739–40. And we observed thatnothing in our state's historical treatment of abortion, which included outrightbans under a series of laws dating to the state's founding, established abortionas a fundamental right. Id. at 740-41. We thus declared abortion was not afundamental right under the due process clause of Iowa's Constitution,overruling PPH 2018. Id. at 741, 744. Two justices dissented from this part ofthe opinion. Id. at 750 (Christensen, C.J., concurring in part and dissenting inpart); id. at 756 (Appel, J., dissenting).But no majority formed in PPH 2022 regarding the appropriate standardof review to apply on remand. See id. at 744-45 (plurality opinion). A three-justiceplurality noted that the State did not take a position on what test should replacethe strict scrutiny standard. Id. Concluding that “we should not go where theparties do not ask us to go,” the plurality left this question open for the partiesto litigate further. Id. at 745. The plurality also noted that an important abortioncase currently before the United States Supreme Court could determine theundue burden test's fate in federal constitutional analysis and could provideinsight relevant to our consideration of the issue. Id. at 745–46. Two justices whojoined the majority opinion overturning PPH 2018 dissented from the pluralityopinion on this point, arguing that our precedents required adoption of the

11rational basis test. Id. at 749 (McDermott, J., concurring in part and dissentingin part, joined by McDonald, J.).One week after we decided PPH 2022, the United States Supreme Courtdecided Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022). In Dobbs,the Supreme Court overruled Casey and the undue burden standard under theFederal Constitution. Id. at 231. It held that abortion is not a fundamental rightand, as a result, abortion restrictions challenged under the Federal Due ProcessClause are subject only to rational basis review. Id. at 300.On the heels of PPH 2022 and Dobbs, the State moved in the district courtto dissolve the permanent injunction entered in January 2019 that barred en-forcement of the original fetal heartbeat law. The State argued that Dobbs andPPH 2022 had produced a substantial change in the law and that no legal basisremained to keep the injunction in place. The district court concluded that itlacked authority to dissolve the injunction, noting that several years had elapsedsince the judgment had been entered without an appeal. It further held that evenif it had the authority to act, the undue burden test applied, and the fetal heart-beat statute failed this test. The district court thus denied the State's motion todissolve the permanent injunction. In the State's appeal, we deadlocked 3-3,which affirmed the district court's ruling by operation of law and kept the in-junction in place. Planned Parenthood of the Heartland, Inc. v. Reynolds ex rel.State, No. 22–2036, 2023 WL 4635932 (Iowa June 16, 2023) (mem.); see IowaCode § 602.4107.Governor Reynolds's call for the special legislative session, as describedearlier, soon followed, resulting in the enactment of the new fetal heartbeat stat-ute at issue in this appeal. See 2023 Iowa Acts ch. 1, §§ 1-2 (codified at IowaCode §§ 146E.1, .2 (20232024)).

12B.In navigating the unsettled terrain regarding the level of scrutiny to applyin this case, the district court looked principally to PPH 2022. It rejected theState's argument that because PPH 2022 held abortion is not a fundamentalright, rational basis review is required under our precedents. The district courtexamined the differing viewpoints expressed in PPH 2022's plurality opinion andpartial dissent, noting that the plurality did not adopt the partial dissent's pro-posal for rational basis review and the plurality's statement that for the timebeing "the Casey undue burden test we applied in PPH [2015] remains the gov-erning standard." 975 N.W.2d at 716.The district court thus applied the undue burden test as the operativestandard and concluded that Planned Parenthood had shown a likelihood of suc-cess on its claim that the fetal heartbeat statute violates the due process clauseof the Iowa Constitution. After finding in favor of Planned Parenthood on thispoint, the district court did not analyze Planned Parenthood's separate argumentthat the statute violated the inalienable rights clause in article I, § 1 of the IowaConstitution, nor did it analyze Planned Parenthood's equal protection claim un-der article I, §§ 1 and 6 of the Iowa Constitution. The district court briefly ad-dressed two other factors in its injunction analysis—the potential irreparableharm that may result from failing to enter the temporary injunction, and thebalance of potential harms to each party—and concluded that both weighed infavor of Planned Parenthood.III.A.Our approach to reviewing constitutional challenges to statutes reflectsimportant separation of powers considerations. The separation of powers among

13the branches of government preserves the balance established in the Constitu-tion to prevent “a gradual concentration of the several powers in the same de-partment.” The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed.,1961). The Iowa Constitution vests the legislature with the authority “to make,alter, and repeal laws and to formulate legislative policy.” In re C.S., 516 N.W.2d851, 859 (Iowa 1994). This authority includes “the legislature's broad, inherentpower to pass laws that promote the public health, safety, and welfare." Gravertv. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995). The executive power is the au-thority "to put the laws enacted by the legislature into effect.” In re C.S.,516 N.W.2d at 859. The judicial power encompasses “the power to decide andpronounce a judgment” in particular cases. Klouda v. Sixth Jud. Dist. Dep't ofCorr. Servs., 642 N.W.2d 255, 261 (Iowa 2002). “It is emphatically the provinceand duty of the judicial department to say what the law is." Marbury v. Madison,5 U.S. (1 Cranch) 137, 177 (1803).The legislature's power does not extend to lawmaking that violates a con-stitutional provision. Our constitution provides that it “shall be the supreme lawof the State" and any inconsistent law “shall be void." Iowa Const. art. XII, § 1.When a challenged statute encroaches on a constitutional provision, the courthas an “imperative duty" to declare the statute inoperative. McGuire v. Chi., B. &Q. R. Co., 108 N.W. 902, 905 (Iowa 1906). But a court may not strike down astatute based on its own disagreement—even deeply held disagreement—withthe public policy advanced in the statute.A court's ability to nullify a law depends entirely on whether a law is irrec-oncilable with a particular provision of the constitution. As we put the point longago: "We are not the guardians of the rights of the people of the State unless theyare secured by some constitutional provision which comes within our judicial

14cognizance. The remedy for unwise or oppressive legislation, within constitu-tional bounds, is by appeal to the justice and patriotism of the representativesof the people.” Stewart v. Bd. of Supervisors, 30 Iowa 9, 17 (1870). Legislativemajorities are sometimes dreadfully wrong. But our system nevertheless allowsthem to pursue their will without judicial interference unless their actions invadeconstitutional protections.The Iowa Constitution's due process clause provides that “no person shallbe deprived of life, liberty, or property, without due process of law.” Iowa Const.art. I, § 9. Determining whether a party's substantive due process rights havebeen violated, as claimed in this case, involves a two-step analysis. State v. Laub,2 N.W.3d 821, 836 (Iowa 2024). “The first step is to ‘identify the nature of theindividual right involved' and determine whether that right is fundamental.”State v. Groves, 742 N.W.2d 90, 92 (Iowa 2007) (quoting In re Det. of Cubbage,671 N.W.2d 442, 446 (Iowa 2003)). “Once we identify the nature of the right, thesecond step is to apply the appropriate test.” Id. at 93. “If we determine the rightis fundamental, then we will apply strict scrutiny.” Id. Strict scrutiny requiresus to determine whether the government's action is narrowly tailored to serve acompelling government interest. Sanchez v. State, 692 N.W.2d 812, 817 (Iowa2005). On the other hand, “[i]f we determine a fundamental right is not impli-cated, we apply a rational basis review.” Groves, 742 N.W.2d at 93. Under therational basis test, we determine whether the law is “rationally relate[d] to a le-gitimate government purpose.” Id.A fundamental right, as we apply that term in our constitutional analysis,doesn't simply mean “important.” King v. State, 818 N.W.2d 1, 26 (Iowa 2012).“Many important interests,” we have noted, “do not qualify as fundamentalrights." Id. Some fundamental rights (freedom of speech or the right to trial byjury, for instance) are expressly enumerated in the text of the Constitution. See

15District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008). In determiningwhether an unenumerated right is fundamental, the alleged right at issue mustbe objectively "deeply rooted” in our “history and tradition” and “implicit in theconcept of ordered liberty.” Hensler v. City of Davenport, 790 N.W.2d 569, 581(Iowa 2010) (quoting Chavez v. Martinez, 538 U.S. 760, 775 (2003) (pluralityopinion)). Whether abortion is a fundamental right determines the standard ofreview we apply.We answered the question whether abortion is a “fundamental right” inPPH 2022. See 975 N.W.2d at 740. In that case, we held that obtaining an abor-tion is not a fundamental right under the Iowa Constitution, expressly overrulingPPH 2018. Id. at 740, 742. We first examined the text of the Iowa Constitution.Id. We concluded that the text offered “no support for [a] reading of the due pro-cess clause as providing fundamental protection for abortion.” Id. at 740.We then analyzed the state's treatment of abortion throughout its history.Id. A right to an abortion, as the historical record shows, is not rooted at all inour state's history and tradition, let alone “deeply" rooted. See id. at 740-41. Thedeep roots that exist show not protection for abortion rights but common lawand statutory prohibitions on abortion from the very beginning through moderntimes. Id. Abortion became a crime in Iowa “just six months after the effectivedate of the Iowa Constitution—and remained generally illegal until Roe v. Wade[,410 U.S. 113 (1973),] was decided over one hundred years later.” Id. at 740."Historically," we concluded, “there is no support for abortion as a fundamentalconstitutional right in Iowa.” Id.Planned Parenthood argues that the fact that women's rights were quitelimited early in our state's history but expanded over time undercuts the per-suasive force of the historical evidence prohibiting abortion. Yet as we observedin PPH 2022, “even as women's rights expanded, the ban on abortion remained

16in place until Roe superseded it.” Id. at 741 (citing Iowa Code § 701.1 (1973),imposing criminal penalties of up to five years' imprisonment on anyone whoadministers a drug or performs a procedure “with intent to produce [a] miscar-riage of any woman . . . unless such miscarriage shall be necessary to save herlife”). Whether a right to obtain an abortion has deep roots in our state's historyis an objective inquiry, see Hensler, 790 N.W.2d at 581, and that history suppliesno support for abortion as a fundamental right, PPH 2022, 975 N.W.2d at 740-41.As we held in PPH 2022, neither text nor history establishes abortion as afundamental right under the Iowa Constitution. Id. at 739–42.B.Having determined that the individual right at stake is not a fundamentalright, we turn to the appropriate level of scrutiny. See Groves, 742 N.W.2d at 93.Since the statute implicates no fundamental right, our precedents would haveus apply the rational basis test. Laub, 2 N.W.3d at 836; King, 818 N.W.2d at 32;Groves, 742 N.W.2d at 93. Planned Parenthood argues that we should insteadadopt the undue burden test from Casey. It contends that the undue burdentest would better balance the state's interest in protecting what Roe and Caseycalled “fetal life,” and what the law now before us describes as an “unborn child,"with protecting maternal health and a woman's liberty interest in decidingwhether to terminate a pregnancy.In Casey, the Supreme Court reaffirmed several propositions of its holdingin Roe, including that the Constitution protects a right to an abortion before fetalviability "without undue interference from the State.” 505 U.S. at 846. Caseyfurther declared that the “State has legitimate interests from the outset of thepregnancy in protecting the health of the woman and the life of the fetus,” and

17that the state may restrict abortions after viability if the abortion regulation con-tains exceptions for pregnancies endangering the mother's life or health. Id. Un-der Casey's undue burden test, an abortion regulation would be held unconsti-tutional if “its purpose or effect is to place a substantial obstacle in the path ofa woman seeking an abortion before" viability. Id. at 878. The Casey pluralityabandoned Roe's “zones of privacy" analysis in favor of a “liberty” interest arisingunder the due process clause of the Fourteenth Amendment. Compare Roe,410 U.S. at 152, with Casey, 505 U.S. at 846–47.The Casey dissenters criticized the “inherently standardless nature” of theundue burden test as permitting judges to inject their own policy preferenceswhen deciding whether a particular restriction creates an undue burden to get-ting an abortion. 505 U.S. at 992 (Scalia, J., concurring in the judgment in partand dissenting in part). As the dissenters predicted, the undue burden test hasvexed courts trying to apply it. See Dobbs, 597 U.S. at 284–85 (noting that “Ca-sey has generated a long list of Circuit conflicts” and collecting cases). The undueburden test requires judges to determine whether an abortion regulation will"prevent" or "deter” a “significant number of women from obtaining an abortion."Casey, 505 U.S. at 893–94. But the test offers no guidance on how much pre-vention or deterrence will cause an abortion regulation to violate the Constitu-tion. See Dobbs, 597 U.S. at 284 ("Casey's 'line between' permissible and uncon-stitutional restrictions ‘has proved to be impossible to draw with precision.'(quoting Janus v. AFSCME Council 31, 585 U.S. 878, 921 (2018))). An undueburden standard inevitably leaves courts unable to provide predictability, con-sistency, or coherence in its application. We already have well-established tiersof review that we routinely apply when analyzing whether a regulation infringesconstitutional due process rights.2 "

18Planned Parenthood notes that we have adopted forms of intermediatescrutiny that are more stringent than rational basis but less stringent than strictscrutiny when evaluating burdens imposed by election laws and commercialspeech and content-neutral speech regulations. See Democratic Senatorial Cam-paign Comm. v. Pate, 950 N.W.2d 1, 7 (Iowa 2020) (per curiam); State v. Musser,721 N.W.2d 734, 743 (Iowa 2006). But the suggestion that an intermediatestandard in these examples somehow supports an intermediate standard forabortion restrictions quickly falls apart when one considers that voting and freespeech—unlike abortion—are both fundamental rights enumerated in the Fed-eral and State Constitutions. See U.S. Const. amend. I; id. amend. XIV, § 2; IowaConst. art. I, § 7; id. art. II, § 1; see also Burdick v. Takushi, 504 U.S. 428, 433(1992) (noting that voting is a matter of “fundamental significance under ourconstitutional structure” (quoting Ill. State Bd. of Elections v. Socialist WorkersParty, 440 U.S. 173, 184 (1979))). Intermediate scrutiny for election laws, forinstance, allows courts to balance competing constitutional requirements of en-suring fair and orderly elections against the right to vote. Abortion is not a fun-damental right under either the United States or Iowa Constitutions, Dobbs,597 U.S. at 300; PPH 2022, 975 N.W.2d at 740, and thus the legislature gener-ally maintains the authority to regulate it like other activities that fall within thelegislature's police powers.Subjecting all laws that involve legislative line-drawing—which is virtuallyall laws to heightened scrutiny would severely hamstring the legislature's abil-ity to carry out its role in our democratic process. Our tiers of scrutiny strike abalance between deferring to the legislative process and protecting constitutionalrights by holding laws that draw distinctions involving fundamental rights toheightened scrutiny. “Our role,” as we have said, “is to decide whether constitu-tional lines were crossed, not to sit as a superlegislature rethinking policy

19choices of the elected branches." AFSCME Iowa Council 61 v. State, 928 N.W.2d21, 26 (Iowa 2019).Stated simply, we can find no principled basis under our due process prec-edents to apply the heightened scrutiny of an undue burden test to abortion.And it would appear we're not alone in our judgment; in the time since Dobbsdiscarded Casey's undue burden standard, no state appears to have applied theundue burden test to a law restricting abortion based on a state constitution'sdue process clause."We thus will apply the rational basis test. “Under a rational basis analysis,a statute is constitutional if we find a ‘reasonable fit between the governmentinterest and the means utilized to advance that interest.' ” Groves, 742 N.W.2dat 93 (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 238 (Iowa 2002)).Rational basis review, while not toothless, presents a "very deferential standard."AFSCME Iowa Council 61, 928 N.W.2d at 32 (quoting NextEra Energy Res. LLC v.Iowa Utils. Bd., 815 N.W.2d 30, 46 (Iowa 2012)). A party challenging a statuteunder the rational basis test bears “a heavy burden” to show that the state'saction is unconstitutional. Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d1, 8 (Iowa 2004). Statutes are presumed constitutional, and we will not declarea law unconstitutional under the rational basis test unless it “clearly, palpably,and without doubt infringe[s]" a constitutional right. Residential & Agric. Advi-sory Comm., LLC v. Dyersville City Council, 888 N.W.2d 24, 50 (Iowa 2016) (al-teration in original) (quoting Racing Ass'n of Cent. Iowa, 675 N.W.2d at 8).Planned Parenthood argues that we should not reconsider the constitu-tional standard in this appeal at all because the parties have not had a chanceto fully develop the record. But under the rational basis test, the state "is notrequired or expected to produce evidence to justify its legislative action." AmesRental Prop. Ass'n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007). A court

20need only find a "realistically conceivable” basis that the statute advances a le-gitimate state interest. Hensler, 790 N.W.2d at 584 (emphasis omitted) (quotingMiller v. Boone Cnty. Hosp., 394 N.W.2d 776, 779 (Iowa 1986) (en banc)). “[T]hatbasis need not be supported by evidence in the traditional sense ." Garrisonv. New Fashion Pork LLP, 977 N.W.2d 67, 86 (Iowa 2022).The State offers several interests that it asserts are advanced by the fetalheartbeat statute, each of which was recognized by the United States SupremeCourt as a legitimate state interest in Dobbs: “respect for and preservation ofprenatal life at all stages of development”; “protection of maternal health andsafety”; “elimination of particularly gruesome or barbaric medical procedures”;"preservation of the integrity of the medical profession”; “mitigation of fetal pain”;and “prevention of discrimination on the basis of race, sex, or disability.”597 U.S. at 301. The state's interest in protecting the unborn can be traced toIowa's earliest days. State v. Moore, 25 Iowa 128, 135-36 (1868).Every ground the State identifies is a legitimate interest for the legislatureto pursue, and the restrictions on abortion in the fetal heartbeat statute are ra-tionally related to advancing them. As a result, Planned Parenthood's substan-tive due process challenge fails. The district court thus erred in granting thetemporary injunction.C.An appellate court may affirm a district court ruling on any ground urgedby the successful party in the district court and again on appeal, even if thedistrict court didn't rely on that ground in its ruling. Veatch v. City of Waverly,858 N.W.2d 1, 7 (Iowa 2015). Planned Parenthood argued in the district courtthat the fetal heartbeat statute violated both the due process clause and theinalienable rights clause. The district court granted the temporary injunctionbased solely on the due process argument. But Planned Parenthood presents no

21inalienable rights clause argument on appeal, urging instead that the districtcourt should rule on it first with a more developed record. Because PlannedParenthood forgoes its inalienable rights argument on appeal, we decline to con-sider it as an alternative basis to affirm the temporary injunction. We similarlydecline to consider Planned Parenthood's claim that the statute violates equalprotection, as Planned Parenthood presented no such argument in the injunc-tion proceeding in the district court or in this appeal.IV.The State makes two other arguments-challenges to standing and ripe-ness—seeking not merely to reverse the temporary injunction order but to dis-miss the case entirely as improperly brought. It argues that abortion providerssuch as Planned Parenthood should not be allowed to bring constitutional claimson behalf of women seeking abortions and that permitting them to do so distortstraditional principles of standing. The State also argues that PlannedParenthood's lawsuit is not ripe for review because Planned Parenthood filed itbefore Governor Reynolds signed the fetal heartbeat statute into law, meaningthat there was not yet any law to challenge. The district court rejected both ar-guments. We agree with the district court that Planned Parenthood has standingand that its claims are ripe for review.A.Standing refers to a party's right to bring a legal action. DuTrac Cmty.Credit Union v. Hefel, 893 N.W.2d 282, 289 (Iowa 2017). To demonstrate stand-ing, a “party must (1) have a specific personal or legal interest in the litigationand (2) be injuriously affected.” Id. (quoting Citizens for Responsible Choices v.City of Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004)). Although the injury can-not be merely speculative, "a likelihood or possibility of injury" may be enoughto establish an injury-in-fact that is sufficiently concrete and imminent to create

22standing. Iowa Bankers Ass'n v. Iowa Credit Union Dep't, 335 N.W.2d 439, 445(Iowa 1983).Although abortion providers have no constitutional right to perform abor-tions, see Planned Parenthood of the Heartland, Inc. v. Reynolds, 962 N.W.2d 37,56 (Iowa 2021), they nevertheless suffer an injury-in-fact when a statute forbidsthem from providing abortion procedures, Singleton v. Wulff, 428 U.S. 106,112–113 (1976). Violations of the fetal heartbeat statute could result in revoca-tion of abortion providers' medical licenses and fines of up to $10,000. See IowaCode § 148.6(1)–(2)(c); id. § 272C.3(2). Planned Parenthood has demonstrated aninjury-in-fact under our standing precedents.The district court also concluded that Planned Parenthood has third-partystanding in this case through the pregnant women it serves. Although a partygenerally may assert only its own rights and not the claims of a third party whoisn't before the court, our precedents provide several exceptions to this generalrule. Iowa Movers & Warehousem*n's Ass'n v. Briggs, 237 N.W.2d 759, 772 (Iowa1976) (en banc). These exceptions include (1) “where a peculiar relationship be-tween the party and the rightholder makes such allowance appropriate,"(2) "where the rightholder has difficulty asserting [its] own rights," and(3) “where, unless assertion of the third person's rights were permitted, thoserights would be diluted and adversely affected.” Id.We agree with the district court that Planned Parenthood's lawsuit satis-fies our prudential rules permitting third-party standing in this case. The rela-tionship between abortion providers and women seeking abortions weighs in fa-vor of third-party standing. See Singleton, 428 U.S. at 117 (finding providers"uniquely qualified to litigate the constitutionality of the State's interferencewith” abortion). Further, under the time limitations established in the fetal heart-

23beat statute, women seeking an abortion might reasonably have difficulty assert-ing their own rights in a manner enabling timely adjudication of the importantconstitutional questions presented in this case. Under these facts, we find thatPlanned Parenthood satisfies third-party standing requirements. We thus affirmthe district court's ruling rejecting the State's standing challenge.B.We turn to the State's ripeness argument. “A case is ripe for adjudicationwhen it presents an actual, present controversy, as opposed to one that is merelyhypothetical or speculative.” Barker v. Iowa Dep't of Pub. Safety, 922 N.W.2d581, 590 (Iowa 2019) (quoting State v. Bullock, 638 N.W.2d 728, 734 (Iowa2002)). The ripeness doctrine prevents courts from adjudicating cases prema-turely and thus “from entangling themselves in abstract disagreements over ad-ministrative policies . . . until an administrative decision has been formalizedand its effects felt in a concrete way by the challenging parties.” Id. (quoting Statev. Wade, 757 N.W.2d 618, 627 (Iowa 2008)). Two questions drive our ripenessanalysis in this situation: (1) whether the issues are “sufficiently focused so asto permit judicial resolution without further factual development” and(2) whether postponing judicial action would impose a hardship on any party.Iowa Coal Min. Co. v. Monroe County, 555 N.W.2d 418, 432 (Iowa 1996).The legislature passed the fetal heartbeat statute on July 11, 2023. Gov-ernor Reynolds issued a statement that same day expressing her intent to signthe bill on July 14. Planned Parenthood filed its petition and motion for tempo-rary injunction on July 12. With Governor Reynolds having called the speciallegislative session that passed the fetal heartbeat bill and announced the dateand location that she would sign the bill, its imminent enactment was all butcertain. The fetal heartbeat bill stated that it would become effective immediately.Planned Parenthood presented sufficient evidence that it would suffer hardship,

24including potential fines and license revocations, if the district court failed to actright away. The district court, for its part, issued the order granting the tempo-rary injunction on July 17, three days after the statute became effective.On these facts, we find no error in the district court's conclusion that thecase was ripe and thus affirm the district court's ruling rejecting the State's ripe-ness challenge.V.The district court granted the temporary injunction after concluding thatPlanned Parenthood was likely to succeed in its constitutional challenge underan undue burden standard. Our holding today—applying rational basis as theconstitutional test—undermines the rationale for the district court's ruling. Un-der the rational basis test, Planned Parenthood cannot show a likelihood of suc-cess on the merits of its substantive due process challenge. We thus hold thatPlanned Parenthood is not entitled to a temporary injunction blocking enforce-ment of the fetal heartbeat statute. We reverse the order granting the temporaryinjunction and remand the case for the district court to dissolve the temporaryinjunction and continue with further proceedings.REVERSED AND REMANDED.McDonald, Oxley, and May, JJ., join this opinion. Christensen, C.J., filesa dissenting opinion, in which Mansfield and Waterman, JJ., join. Mansfield, J.,files a dissenting opinion, in which Christensen, C.J., and Waterman, J., join.

25#23–1145, Planned Parenthood v. ReynoldsCHRISTENSEN, Chief Justice (dissenting).Today, our court's majority strips Iowa women of their bodily autonomy byholding that there is no fundamental right to terminate a pregnancy under ourstate constitution. I cannot stand by this decision. The majority's rigid approachrelies heavily on the male-dominated history and traditions of the 1800s, all thewhile ignoring how far women's rights have come since the Civil War era. It is abold assumption to think that the drafters of our state constitution intended fortheir interpretation to stand still while we move forward as a society. Instead, weshould interpret our constitution through a modern lens that recognizes how ourlives have changed with the passage of time.Historically, "the men in the Iowa General Assembly enacted statutes re-lated to abortion, and the men reelected the representatives, and the men servedon the courts, while the women stayed home.” Planned Parenthood of the Heart-land, Inc. v. Reynolds ex rel. State (PPH 2022), 975 N.W.2d 710, 793 (Iowa 2022)(Appel, J., dissenting). In sum, generations of women in Iowa faced multiple lay-ers of exclusion and discrimination. Not only did women have no say in the draft-ing of our state constitution, but they had no input in the statutes being enactedin the state legislature and no ability to vote for the elected officials responsiblefor these statutes. “Consequently, the common law addressing abortion devel-oped in a society where any rule elevating the continuation of the growth of afetus was largely untempered by consideration of the impact on the woman whobore the brunt of the rule.” Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum.Servs., 309 A.3d 808, 906-07 (Pa. 2024). So is it any wonder why Iowa is notflush with legal history demonstrating that a medical procedure specific towomen is a deeply rooted part of our state's tradition?

26Women are human beings in their own right, worthy of the same freedoms,privileges, and protections as men. Yet, women have not consistently possessedthe same collection of rights granted to men throughout Iowa's history. Instead,society viewed women as little more than an extension of the men in their liveswhen our state constitution was drafted and for generations to come.¹There were no women members of the Iowa constitutional conventions,which occurred in 1844, 1846, and 1857, and no women members of the legis-lature during that period.² While African-American males received the right tovote when the states ratified the Fifteenth Amendment to the United States Con-stitution in 1870, women of all races had to wait until 1919 for that right.³ It wasnot until 1998 that the citizens of Iowa voted to expressly include women in thelanguage of the Iowa Constitution's inalienable rights clause. See Iowa Const.amend. 45.Of course, women now play a far greater role in shaping society than theydid in the middle of the nineteenth century. The political actors responsible forthe statute at issue-Iowa Code section 146E.2 (2023)—include significant fe-male representation in leadership roles in both the general assembly and thegovernor's office, along with a female attorney general whose office is tasked withdefending the statute. The overwhelming majority of these women have spent1 See, e.g., Zerfing v. Mourer, 2 Greene 520, 521-22 (Iowa 1850) (affirming the defendant'sliability in a trespass action for seducing and impregnating the plaintiff's daughter); Iowa StateUniv., Women's Suffrage in Iowa [hereinafter Women's Suffrage in Iowa],https://cattcenter.iastate.edu/timeline/ [https://perma.cc/B3WB-WAJR]; see also Bradwell v.Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring) (“[T]he civil law, as well as nature her-self, has always recognized a wide difference in the respective spheres and destinies of man andwoman. So firmly fixed was this sentiment in the founders of the common law that it becamea maxim of the system of jurisprudence that a woman had no legal existence separate from herhusband, who was regarded as her head and representative in the social state. . . .”).2 See Women's Suffrage in Iowa.3 See Nat'l Women's Hist. Museum, Timeline: Woman Suffrage Timeline (Apr. 12, 2018),https://www.womenshistory.org/exhibits/timeline-woman-suffrage [https://perma.cc/H9L7-GPEN].

27most if not all—of their lives with the ability to choose whether to continue apregnancy under the United States Supreme Court's 1973 decision in Roe v.Wade, 410 U.S. 113, 153 (1973). And as a female serving as the chief executiveofficer of the state's judicial branch and only the third woman appointed to theIowa Supreme Court, I know all too well how far women have come and the ef-forts it took to achieve this progress. But we didn't come this far to say, “Ourwork is done."Unfortunately, this statute-and the majority's decision allowing it to takeeffect not only brings that progress to a halt but also takes a giant step back-ward. Despite the great strides men and women have made for women's equalityin the decades since the drafting of our state constitution, women “are once againrelegated to their traditional (and outdated) roles as only child-bearers and moth-ers," "forced to live their twenty-first century lives by nineteenth century stand-ards and mores." Planned Parenthood Great Nw. v. State, 522 P.3d 1132, 1235(Idaho 2023) (Stegner, J., dissenting). This law is contrary to the rights affordedunder the Iowa Constitution. Accordingly, I dissent from the majority's decisionand would affirm the district court's temporary injunction, finding what's re-ferred to as "the fetal heartbeat bill” unconstitutional. In doing so, I also joinJustice Mansfield's dissent in full, including his constitutional analysis.I. Women Have the Right to Decide Whether to Continue Their Pregnancy.In 2018, our court held that the decision to end a pregnancy is implicit inthe concept of ordered liberty and thus a fundamental right under the due pro-cess clause of the Iowa Constitution. Planned Parenthood of the Heartland v.Reynolds ex rel. State (PPH 2018), 915 N.W.2d 206, 237-38 (Iowa 2018). Accord-ingly, any regulations affecting this right were subject to strict scrutiny. Id. at238. Four years later, and with a significant change in the makeup of our court,we overruled that 2018 decision with a majority of the court concluding “that the

28Iowa Constitution is not the source of a fundamental right to an abortion neces-sitating a strict scrutiny standard of review for regulations affecting that right."PPH 2022, 975 N.W.2d at 716.At the time, I declined to weigh in on the merits of that debate on staredecisis grounds. See id. at 750-56 (Christensen, C.J., concurring in part anddissenting in part). I concluded that no special justification “warrant[ed] such aswift departure from the court's 2018 decision," so I would have applied strictscrutiny review to analyze the twenty-four-hour waiting period at issue in linewith our 2018 holding. Id. at 750. Putting aside whether stare decisis shouldhave constrained our court from overturning that 2018 decision, I acknowledgethat the 2018 decision is no longer controlling precedent. But part of the reasonthis case is before us is that no majority of the court agreed on the appropriatestandard of review to apply to abortion regulations in our 2022 decision. Id. at744–45 (majority opinion).This time around, even Planned Parenthood has abandoned its call forstrict scrutiny review, arguing instead that “[a]n intermediate level of scrutiny isappropriate in the abortion context because of the importance of balancing thedifferent interests at stake." Meanwhile, the State advocates for rational basisreview of abortion regulations. Therefore, I see no reason to re-litigate our 2018and 2022 decisions to consider whether abortion regulations are subject to strictscrutiny because neither party is asking for that. Id. at 745 (“[W]e should not gowhere the parties do not ask us to go.").I join Justice Mansfield's dissent and agree that—at the very least-weshould “evaluate state regulations and restrictions on abortions before the six-teenth week using intermediate scrutiny and the Casey undue burden stand-ard." It is painfully apparent to me that the majority misapprehends the nature

29of the liberty at issue here. It is not whether abortion, with the polarizing reac-tions it evokes, is a fundamental right but rather whether individuals have thefundamental right to make medical decisions affecting their health and bodilyintegrity in partnership with their healthcare provider free from government in-terference. I also write separately to highlight some of my qualms with the ma-jority opinion and the impractical exceptions to the statute that are likely to gen-erate new constitutional challenges.A. Iowa's History and Tradition Surrounding Abortion is Not Clear-Cut. By exclusively relying on the text of our constitution that was adopted in1857 and our state's history and tradition to conclude that abortion is not afundamental right, the majority perpetuates the gendered hierarchies of oldwhen women were second-class citizens. Justice Mansfield's dissent accuratelydetails the oppression that women in Iowa faced for much of our history, whilethe majority glosses over this part of our state's history and tradition. With a fullaccount of our early treatment of women in Iowa and their utter absence in de-cision-making roles, it is not surprising that Iowa lacks a rich history and tradi-tion of supporting abortion. The majority's approach provides no opportunity toovercome or repudiate this history.Nonetheless, the majority oversimplifies Iowa's history and tradition re-garding abortion by concluding that it provides no support for abortion as a fun-damental right under the state constitution. Despite Iowa's history of laws crim-inalizing or restricting abortion, women in Iowa have long had the ability to ter-minate a pregnancy to preserve the life of the mother. This dates back to Iowa'stime as a territory, when the 1843 territorial law banned the “administ[ration] toany woman, pregnant with a child, any medicine, drug, or substance whatever,or shall employ any other means with intent thereby to destroy such child, andthereby cause its death, unless the same shall be necessary to preserve the life

30of the mother." Iowa Rev. Stat. ch. 49, § 10 (Terr. 1843) (emphasis added.) And,consistent with the treatment of women at the time, the motivation for criminal-izing abortion was rooted in sexism, as “[t]he leading advocate of criminalization,Dr. Horatio Storer and his colleagues, vigorously resisted the entry of womeninto the medical profession.” PPH 2022, 975 N.W.2d at 796 (Appel, J., dissent-ing). Yet, a woman in Iowa had at least a limited ability to end her pregnancyeven at a time when she “had little or no say about her body and her children,her property, where she lived, her civic duties, her opportunities, her career, herdress—indeed her life.” Okla. Call for Reprod. Just. v. Drummond, 526 P.3d 1123,1135 (Okla. 2023) (per curiam) (Kauger, J., concurring).For decades, Iowa continued to make an exception to its abortion laws forthe life of the mother. See Iowa Code § 701.1 (1966) (criminalizing “any person,with intent to produce the miscarriage of any woman, willfully administer to herany drug or substance whatever, or, with such intent, use any instrument orother means whatever, unless such miscarriage shall be necessary to save herlife” (emphasis added)). We also gave physicians deference in determiningwhether an abortion was necessary under the exception, holding that a physi-cian who performs the procedure “is entitled to the presumption of correct judg-ment and good faith, thereby falling under the therapeutic exception.” State v.Abodeely, 179 N.W.2d 347, 354 (Iowa 1970).As I will explain later, the statute at issue today does not give physiciansthis same professional latitude in their decision-making. Nor does it give manypregnant women any meaningful opportunity to terminate a pregnancy when itthreatens their health or ability to carry a child to term in the future. In short,although the right was limited, Iowa's history and traditions certainly, at a min-imum, support a woman's right to obtain an abortion to save her life. The ma-jority ignores this aspect of our history altogether.

31Moreover, the majority's conclusion too heavily weighs the absence of anytext in our state constitution referring to, or including, abortion. Other proce-dures affecting bodily integrity and medical care that are not specifically men-tioned in our constitution include organ transplants and blood transfusions.Like abortion, some religions oppose or ban these medical practices, but it isdifficult to imagine the State arguing "that an individual's right to makehealth-care decisions regarding [organ transplants or blood transfusions are]subject to a government ban because they are not specifically enumerated in ourstate constitution—or because some religions find them objectionable." PlannedParenthood S. Atl. v. State, 882 S.E.2d 770, 804 (S.C. 2023) (Beatty, C.J., con-curring).On a related note, some may find this abortion ban objectionable on reli-gious grounds. Those include Iowans of Jewish faith, who may have a sincerelyheld religious belief in their right to terminate a pregnancy after a fetal heartbeatis detected. The Court of Appeals of Indiana recently affirmed an injunction halt-ing a similar abortion law under the state's Religious Freedom Restoration Act(RFRA) because the state failed to show “its claimed compelling interest in pro-tecting the potential for life is satisfied by denying [Jewish] Plaintiffs' religious-based exception” given the statute's other exceptions for situations involvingrape, incest, fetal abnormalities, and medical emergencies. Individual Membersof Med. Licensing Bd. of Ind. v. Anonymous Plaintiff 1, 233 N.E.3d 416, 455(Ind. Ct. App. 2024). Like Indiana's law, Iowa's newly enacted RFRA law triggersstrict scrutiny and poses related legal issues. See 2024 Iowa Acts ch. 1003, § 4(to be codified at Iowa Code § 675.2 (2025)).Finally, the majority's decision raises concerns about the stability of otherrights we consider fundamental. Our “precedents about bodily autonomy, sexualand familial relations, and procreation are all interwoven—all part of the fabric

32of our constitutional law, and because that is so, of our lives." Dobbs v. JacksonWomen's Health Org., 597 U.S. 215, 378 (2022) (Breyer, J., dissenting). Conse-quently, today's ruling casts doubt on the stability of rights like contraception,interracial marriage, and same-sex marriage should constitutional challenges tothese rights come before us.Same-sex marriage, for example, was historically forbidden in Iowa untilour court held that a state statute limiting civil marriage to a union between aman and a woman violated the Iowa Constitution in 2009. Varnum v. Brien,763 N.W.2d 862, 906–07 (Iowa 2009); see also Obergefell v. Hodges, 576 U.S.644, 675 (2015) ("The Court now holds that same-sex couples may exercise thefundamental right to marry. No longer may this liberty be denied to them.").“[T]ime_brings developments that our founders could not have contemplated." Planned Parenthood Great Nw., 522 P.3d at 1215 (Zahn, J., dissenting).While I agree that we should look to Iowa's history and tradition to determine theframers' intent and guide our analysis, the rights of Iowans did not freeze onceour state constitution took effect. Today's decision risks limiting our interpreta-tion to conditions as they existed in the mid-19th century, eliminating rightsfrom our constitution in the process.B. The Statute's Exceptions Authorizing Abortion in Certain Circum-stances Are Unattainable for Many Pregnant Women and Girls. While thestatute outlines exceptions that allow for abortions in situations involving rape,incest, certain fetal abnormalities incompatible with life, miscarriages, or medi-cal emergencies, they are crafted in such a way that the application rings hollow.See Iowa Code § 146E.2. Frankly, in many of these situations, they serve as an-other example of how this statute prioritizes the unborn over the living, placingpregnant women in grave harm in the process. Although the majority opinionrejects a facial challenge to the overall statute, it does not and could not close

33the door to "as applied" challenges, including equal protection claims by individ-ual women harmed as these problematic exceptions go into effect.In discussing these exceptions, I recognize that the parties did not havethe benefit of the Iowa Board of Medicine's (Board) rules on this statute duringthe briefing stage because the Board was still in the rulemaking process. Thoserules have since been adopted, and while they illuminate some aspects of theexceptions, we are still left with many questions and concerns. One importantyet unclear rule is the potential discipline a physician faces for performing anabortion on someone who does not qualify for one of these exceptions, as therule simply states that failure to comply with the rules or statute “may constitutegrounds for discipline." Iowa Admin. Code r. 653-13.17(5). But this is clear: thepotential disciplinary options at the Board's disposal can be both career-endingand severe.4It is important to keep in mind the State's proclaimed interests for thisstatute when reading the abortion exceptions. Primarily, the State contends thestatute serves its “vital interest in protecting unborn human life at all stages ofdevelopment." To a lesser degree, it also mentions the “protection of maternalhealth and safety,” “elimination of particularly gruesome or barbaric medicalprocedures,” “preservation of the integrity of the medical profession,” “mitigationof fetal pain,” and “preservation of discrimination on the basis of race, sex, ordisability” as other legitimate interests in protecting life, both born and unborn.(Quoting Dobbs, 597 U.S. at 301.)It takes little effort to understand how the statute's exceptions fail to fur-ther many of these proclaimed interests, regardless of whether we classify them4The potential disciplinary options available to the Board include the revocation or sus-pension of a physician's medical license, a civil penalty up to $10,000, and even a criminal pen-alty that is a class “D” felony. See Iowa Code § 147.55; id. § 148.6.

34as legitimate, important, or compelling. That is true even for the interest that theState stresses most-the "vital interest in protecting unborn human life at allstages of development”—because the statute includes exceptions to the abortionban after the detection of a fetal heartbeat in certain situations when there is nothreat to the pregnant woman or fetus. And in some instances, the statute'sexceptions even have the potential to do more harm than good to the lives of themother and unborn child.1. Rape and incest exceptions. The statute attempts to provide exceptionsthat allow for abortion after the detection of a fetal heartbeat when women be-come pregnant as the result of either rape or incest. See Iowa Code § 146E.1(3).Suffering through rape or incest is certainly one of the most traumatic things aperson can experience, particularly when it results in pregnancy. 5 But the State's"exceptions" for these survivors throw significant barriers in front of them byrequiring actions that are unrealistic and unfair.To terminate a pregnancy that was the result of rape, the rape must be"reported within forty-five days of the incident to a law enforcement agency or toa public or private health agency which may include a family physician" so longas the pregnancy has not reached a “postfertilization age” of “twenty or moreweeks.” Id. §§ 146E.1(3)(a), .2(2)(b). Further, the rules require a physician whointends to perform an abortion under the rape exception to use the followinginformation in making a good-faith assessment that the exception applies:1. The date the sex act that caused the pregnancy occurred.2. The age of the woman seeking an abortion at the time ofthat sex act.5This statute distinguishes rape from incest, but incest is generally a form of sexualabuse. We treat it as such under the criminal code, which classifies it as a class "D" felony. SeeIowa Code § 726.2.

353. Whether the sex act constituted a rape.4. Whether the rape was perpetrated against the woman seek-ing an abortion.5. If initial reporting was to someone other than the physicianwho intends to perform or induce an abortion, the date the rape wasreported to a law enforcement agency, public health agency, privatehealth agency, or family physician.Iowa Admin. Code r. 653–13.17(4)(a)(2). The physician may also “require the per-son providing the information to sign a certification form attesting that the in-formation is true.” Id. r. 653–13.17(4)(a)(2) (flush language). Nothing in the stat-ute or rules declares who must make this report, so it is unclear if a crediblesecondhand report of rape from a pregnant nonverbal teenager's mother, for ex-ample, meets this reporting requirement when the patient either is too distraughtor physically cannot report what happened to legal or medical authorities.Notably, despite the statute's use of the term “rape” in the exception, itdoes not define that term. See Iowa Code § 146E.1(3)(a). “Rape” is not languageused in our criminal code, which criminalizes “sexual abuse" instead. See IowaCode § 709.1. According to the Board's rules, a “pregnancy is the result of a rape”when “the pregnancy is the result of conduct that would constitute an offenseunder Iowa Code section 709.2, 709.3, 709.4, or 709.4A when perpetratedagainst a female, regardless of where the conduct occurred." Iowa Admin. Coder. 653–13.17(2) (flush language).These code sections include sexual abuse in the first degree, sexual abusein the second degree, sexual abuse in the third degree, and sexual abuse in thefourth degree when a healthcare professional is the offender. See Iowa Code§§ 709.2-.4A. They all discuss ways in which a person commits varying degreesof sexual abuse, but none of them define “sexual abuse." That definition is in

36Iowa Code section 709.1, so physicians will first have to know to read that por-tion of the Iowa Code before determining whether any rape occurred that meetsthe exception. See id. § 709.1. From there, the physician will have to becomewell-versed in the four different sexual abuse statutes encompassed in the ruleto determine whether the pregnancy is the result of conduct that would consti-tute an offense under any of these four statutes. See Iowa Admin. Coder. 653–13.17(2) (flush language).Physicians should not have to guess whether the patient's narrative legallyconstitutes “rape” before rendering medical treatment to the patient without fearof jeopardizing their medical license or career. The degree of sexual abuse is oftenbaffling to law enforcement and prosecutors. How can we expect medical profes-sionals to reach these legal conclusions when our own profession often struggleswith making that same determination?Likewise, the statute's exception for incest raises questions about how itapplies. That exception allows for termination of a pregnancy that “is the resultof incest which is reported within one hundred forty days of the incident to a lawenforcement agency or to a public or private health agency which may include afamily physician.” Iowa Code § 146E.1(3)(b).6 The 140-day reporting periodamounts to twenty weeks. Under the rules,"The pregnancy is the result of incest" [when] a sex act occursbetween closely related persons that involves a vagin*l penetrationthat causes a pregnancy. The closely related persons must be re-lated, either legitimately or illegitimately, as an ancestor, descend-ant, brother or sister of the whole or half blood, aunt, uncle, niece,6Nothing in the statute or the Board's rules explains why a rape victim only has 45 daysto report her rape while a victim of incest has 140 days to obtain an abortion under the excep-tions. It makes no difference to the fetus whether the report is made in 45 days or 100 days, butour legislature saw fit to let a pregnancy conceived through incest progress further along than apregnancy conceived through rape before allowing for its abortion.

37or nephew. For purposes of this rule, a closely related person in-cludes a stepparent, stepchild, or stepsibling, including siblingsthrough adoption.7Iowa Admin. Code r. 653–13.17(2) (flush language) (italicization omitted).Like the rape exception, it is unclear who is qualified to report this for theexception to apply, which is concerning because incest often involves child vic-tims. Once a report is made, the physician intending to perform the abortionmust obtain similar information to that required for the rape exception. Id.r. 653–13.17(4)(a)(1). The rules do not prescribe how a physician is to obtain theinformation required to determine whether the rape or incest exception applies,though the rape exception states that the physician “may rely on the informationreceived upon a good-faith assessment that the information is true.” Id.r. 653–13.17(4)(a)(2) (flush language). This offers little reassurance when disci-pline for failing to comply with the rules or the statutory requirements can de-stroy a physician's medical career.In reality, if Iowa follows the trend of other states with similar bans, therewill likely be few physicians trained and willing to perform abortions in the state,even if a physician determines that one of the exceptions applies.8 Statistics fromthe Association of American Medical Colleges (AAMC) show that "for the secondyear in a row, students graduating from U.S. medical schools this year were lesslikely to apply for residency positions in states with abortion bans and other"The Board's rule regarding incest lists aunts and uncles who are closely related, but thatappears to exclude aunts, uncles, or other relatives by marriage who are not biologically relatedto the victim.8 See, e.g., Julie Rovner & Rachana Pradhan, Medical Residents are Starting to AvoidStates with Abortion Bans, Data Shows, NPR (May 9, 2024, 8:01 AM) [hereinafter Medical Resi-dents are Starting to Avoid States with Abortion Bans], https://www.npr.org/sections/health-shots/2024/05/09/1250057657/medical-residents-starting-avoid-states-abortion-bans[https://perma.cc/YNK6-QSUC].

38significant abortion restrictions." With this statute in place, Iowa certainly fallswithin that category of states that ob-gyns will avoid. The AAMC analysis alsoreveals “that the number of applicants to OB-GYN residency programs in abor-tion-ban states dropped by 6.7%, compared with a 0.4% increase in states whereabortion remains legal.”10Recent medical school graduates are not alone in their decision to avoidstates with strict abortion laws. An August 2022 survey of 1,000 jobseekers inthe United States revealed that one in three jobseekers would not apply to jobsin states with abortion bans. 11 More recently, fifty-one businesses in Texas sub-mitted an amicus brief to the Texas Supreme Court in support of Texas womenchallenging the state's abortion ban, detailing how the ban is “increasing the costof business in Texas, driving away top talent, risking potential future businesscoming to the State, and threatening a diverse workforce.”12 They cited researchestimating Texas's abortion restrictions could cause an economic loss to womenand the state economy of $14.5 billion annually due to a reduction in labor forceparticipation, earning level, and increasing turnover and time off from workamong women ages fifteen to forty-four years. 13 This information does not bodewell for Iowa, considering 34% more of our state's college-educated workforce9 Medical Residents are Starting to Avoid States with Abortion Bans10 Medical Residents are Starting to Avoid States with Abortion Bans11Jennifer Liu, Turning Down a $300K Job, Deferring Dreams of Austin: How Roe's End isChanging Millenials'Plans and Lives, CNBC (Aug. 18, 2022, 10:04 AM),Careerhttps://www.cnbc.com/2022/08/18/how-roes-end-is-changing-millennials-career-plans-and-lives.html [https://perma.cc/5FRX-EHDB].12Brief for Amici Curiae Bumble Inc. and Other Businesses and Businesspeople in Sup-port of Appellees, 2023 WL 8355790, at *1 (filed Nov. 20, 2023), State v. Zurawski, No. 23-0629,2024 WL 2787913 (Tex. May 31, 2024), [Brief for Bumble Inc. et al.].13Brief for Bumble Inc. et al.; see also Erin Weber, Texas Abortion Ban and Other Re-strictions Cost the State Economy Almost $15 Billion Per Year, Inst. for Women's Pol'y Rsch.(Sept. 2, 2021), https://iwpr.org/texas-abortion-ban-and-other-restrictions-cost-the-state-economy-almost-15-billion-per-year/ [https://perma.cc/X86H-Q35B].

39leaves the state after graduation than stays here, making us the tenth worststate at retaining new college graduates according to a 2022 report.14Perhaps these concerns overshadow an even bigger problem with the rapeand incest exceptions, which is that most sexual assaults go unreported. TheBureau of Justice Statistics found that only 21.5% of rape or sexual assaultswere reported to police in 2021 and 21.4% in 2022. Alexandra Thompson & Su-sannah N. Tapp, U.S. Dep't of Just., Criminal Victimization, 2022 6 tbl.4 (2023),https://bjs.ojp.gov/document/cv22.pdf [https://perma.cc/467K-MCYT]. Whenvictims do report, it is often delayed because the process of reporting “involvesmany things that a victim's [posttraumatic stress disorder] would push them toavoid, including thinking about the assault [and] detailing the assault.” JillianMiller Purdue & Fredrick E. Vars, Time to Heal: Trauma's Impact on Rape & Sex-ual Assault Statutes of Limitations, 11 Tex. A&M L. Rev. 125, 139 (2023).Plus, those seeking incest exceptions face additional obstacles, as they areoften minors whose abusers are family members. 15 They risk being kicked out oftheir home and ostracized by their family, who may very well support the abuser.As I have documented before, it is sadly “not uncommon to terminate the paren-tal rights of parents who continue to deny their child's sexual abuse and con-tinue to reside with the child's abuser." In re D.D., 955 N.W.2d 186, 198-99 (Iowa2021) (Christensen, C.J., concurring specially) (collecting cases involving thissituation). Combine these risks with Iowa's requirement that minors obtain pa-rental notification or judicial bypass to receive an abortion, and the already14Erin Murphy, Iowa's “Brain Drain" Among Worst in U.S., Analysis Shows, The Gazette(Sept. 22, 2022, 6:38 PM), https://www.thegazette.com/state-government/iowas-brain-drain-among-worst-in-u-s-analysis-shows/ [https://perma.cc/F4S3-BLMR].15 See, e.g., Elizabeth Chuck, Post-Roe, Exceptions to State Abortion Bans Won't be Easyto Acquire, NBC News (Jan. 24, 2022, 12:24 PM), https://www.nbcnews.com/news/us-news/post-roe-exceptions-state-abortion-bans-wont-easy-acquire-rcna34986[https://perma.cc/6CPV-T495].

40daunting task of reporting the incest to obtain an abortion under the exceptionbecomes even more challenging. See Iowa Code § 135L.3.This brings me back to my concerns about the reporting process requiredto obtain the exception. Imagine a twelve-year-old girl telling her mother that herstepfather raped her, resulting in pregnancy. As I have already noted, it is notuncommon for the mother to choose not to believe her own child or simply chooseto stand by her man. How does a twelve-year-old navigate reporting this on herown? What twelve-year-old has the knowledge or wherewithal to independentlyreport rape or incest to either law enforcement or medical professionals? What'sworse is that the twelve-year-old may not even realize that she was the victim ofa crime because she may live in a household where sexual abuse is sadly nor-malized. It is an understatement to say that this exception is unrealistic andunfair for many rape and incest survivors—especially the children amongthem—who become pregnant from these crimes.When women (or young girls) are unable to clear those hurdles and areforced to carry their abuser's biological child to term, they encounter new battles."The trauma of sexual assault lingers and can prevent victims from effectivelycontinuing their employment, academic, or other life goals. It can therefore sup-press economic success and increase the risk of impoverishment for victims ofsexual assault.” Jill C. Engle, Sexual Violence, Intangible Harm, and the Promiseof Transformative Remedies, 79 Wash. & Lee L. Rev. 1045, 1071 (2022) (footnoteomitted). This does not even address the additional trauma these survivors facewhen they are forced into custody battles or required to participate in litigationto terminate their abuser's parental rights to the child. See, e.g., Jordan S.Miceli, Note, The Haunting of Her House: How Virginia Law Punishes Women WhoBecome Mothers Through Rape, 78 Wash. & Lee L. Rev. Online 129, 155–58

41(Dec. 15, 2021) (discussing the harms women face when their rapists assert pa-rental rights to the child conceived through rape); see also 2016 Iowa Actsch. 1046, § 1 (codified at Iowa Code § 232.116(1)(p) (2017)) (authorizing termi-nation of parental rights since 2016 when “[t]he court finds there is clear andconvincing evidence that the child was conceived as the result of sexual abuseas defined in section 709.1, and the biological parent against whom the sexualabuse was perpetrated requests termination of the parental rights of the biolog-ical parent who perpetrated the sexual abuse").Needless to say, these exceptions are fraught with problems. Most prob-lematic for the State is that nothing in the record shows how it promotes itsprofessed primary vital interest in protecting unborn life at all stages of develop-ment. These exceptions, while seemingly favoring the pregnant woman's inter-ests over fetal life, are “based on a tragic circ*mstance rather than risks to themother's physical health” or the desire to protect any fetal life. Individual Mem-bers of Med. Licensing Bd. of Ind., 233 N.E.3d at 456. “It begs the question, whydoes the state abandon its professed primary [vital] interest, the protection offetal life, in rape or incest cases?” Planned Parenthood S. Atl., 882 S.E.2d at 800.The State offers no reason why pregnancies that result from rape or incestcan be terminated after a fetal heartbeat is detected while other pregnanciesmust continue. Terminating any of these pregnancies results in the loss of po-tential life, regardless of how those pregnancies were conceived. See id. The sta-tus of a woman in either situation is the same: she is pregnant.2. Medical emergency exception. The statute's exception authorizing abor-tions when a pregnant woman is experiencing a medical emergency pits the lifeof the mother against the life of the fetus. In doing so, it treats the pregnant

42woman as little more than a means to an end and ignores the mother's crucialrole in carrying that potential life to term. That exception allows:[A]n abortion . . . to preserve the life of the pregnant woman whoselife is endangered by a physical disorder, physical illness, or physicalinjury, including a life-endangering physical condition caused by orarising from the pregnancy, but not including psychological condi-tions, emotional conditions, familial conditions, or the woman's age;or when continuation of the pregnancy will create a serious risk ofsubstantial and irreversible impairment of a major bodily function ofthe pregnant woman.Iowa Code § 146A.1(6)(a) (emphasis added); see also id. § 146E.1(4). It also au-thorizes abortions when a fetal heartbeat is detected after twenty or more weekswhen “in the physician's reasonable medical judgment the pregnant woman hasa condition which the physician deems a medical emergency" or an “abortion isnecessary to preserve the life of an unborn child.” Id. § 146E.2(2)(b). “ ‘Reasona-ble medical judgment' means a medical judgment made by a reasonably prudentphysician who is knowledgeable about the case and the treatment possibilitieswith respect to the medical conditions involved.” Id. § 146E.1(6) (italicizationomitted). The Board's rules offer no additional insight into what constitutes a“medical emergency” under the exception.Nationwide, this lack of guidance into what constitutes a life-endangeringmedical emergency in states with similar statutes continues to perplex physi-cians at the expense of the pregnant women seeking their care. 16 In Missouri, aUnited States Department of Health and Human Services investigation found theFreeman Health System in Joplin violated federal law when it refused to providean abortion for a pregnant woman whose water broke early at seventeen weeks16 See, e.g., Alice Miranda Ollstein & Megan Messerly, Patients are Being Denied Emer-gency Abortions. Courts Can Only Do So Much, Politico (April 23, 2024, 5:00 AM),https://www.politico.com/news/2024/04/23/doctors-abortion-medical-exemptions-00153317.

43of pregnancy even though she was at risk for serious infection and doctors toldher the fetus would not survive. 17In Oklahoma, a woman filed a federal complaint alleging the OklahomaChildren's Hospital turned her away when she was seeking an abortion due tolife-threatening pregnancy complications because the ultrasound detected fetalcardiac activity. 18 The pregnant woman—who had a partial molar pregnancy19and was at risk of bleeding to death if the cysts inside her uterus ruptured—ul-timately endured a three-hour trip across state lines to Kansas, where she wasable to terminate her failed pregnancy. 20In ongoing litigation surrounding Idaho's abortion statute, board-certifiedob-gyn Dr. Emily Corrigan gave specific examples of the problems she's experi-enced practicing at a Boise hospital under an ambiguous abortion statute thatonly protects abortions when they are necessary to prevent the mother's death.See United States v. Idaho, 623 F. Supp. 3d 1096, 1105 (D. Idaho 2022), staygranted, 83 F.4th 1130 (9th Cir. 2023), rev'd, 82 F.4th 1296 (9th Cir.) (mem.)17 Amanda Seitz, Feds: Hospitals That Denied Emergency Abortion Broke the Law, APNews (May 1, 2023, 5:52 PM), https://apnews.com/article/emergency-abortion-law-hospitals-kansas-missouri-emtala-2f993d2869fa801921d7e56e95787567 [https://perma.cc/W5UU-BH2H].18 Carmen Forman, After Being Denied Life-Saving Abortion, Oklahoma Woman Files Hos-pital Complaint, Oklahoma Voice (Sept. 13, 2023, 5:30 AM), https://oklaho-mavoice.com/2023/09/13/after-being-denied-life-saving-abortion-oklahoma-woman-files-hos-pital-complaint/ [https://perma.cc/A4YF-HZEH].19In partial molar pregnancies, fertilization goes wrong, causing either two sperm to fer-tilize the same egg or an egg is fertilized by one sperm that later duplicates. Selena Simmons-Duffin, "I'll Lose My Family" A Husband's Dread During an Abortion Ordeal in Oklahoma, NPR (May 1,2023, 10:44 AM) ["I'll Lose My Family" A Husband's Dread During an Abortion Ordeal in Okla-homa.], https://www.npr.org/sections/health-shots/2023/05/01/1172973274/oklahoma-abortion-ban-exception-life-of-mother-molar-pregnancy [https://perma.cc/DSE5-5YBW]. These pregnanciescarry "a risk of heavy bleeding, infection, and a life-threatening condition called preeclampsiathat can lead to organ failure. There's also a risk that cancer will develop." Id.20 "I'll Lose My Family" A Husband's Dread During an Abortion Ordeal in Oklahoma.

44(en banc), stay granted, 144 S. Ct. 541 (2004), rev'd sub nom. Moyle v. UnitedStates, 2024 WL 3187605 (June 26, 2004) (per curiam).Specifically, she discussed her treatment of “three recent patients—all ofwhom presented with emergency medical conditions and required an abortion."Id. The court summarized the concerns that Dr. Corrigan brought up with re-spect to these three patients:She says that for each of these patients, it was "medically impossibleto say that death was the guaranteed outcome.” Regarding Jane Doe1, for example, she says that this patient “could have developed se-vere sepsis potentially resulting in catastrophic injuries such as sep-tic emboli necessitating limb amputations or uncontrollable uterinehemorrhage ultimately requiring hysterectomy but [she] could stillbe alive." Jane Does 2 and 3 were in similar situations—they couldhave survived, but each “potentially would have had to live the re-mainder of their lives with significant disabilities and chronic medi-cal conditions as a result of their pregnancy complication."Id. (citations omitted); see also Cameron v. EMW Women's Surgical Ctr., P.S.C.,664 S.W.3d 633, 673–81 (Ky. 2023) (Keller, J., concurring in part and dissentingin part) (detailing numerous health risks women experience during pregnancyand how Kentucky's medical exception to its abortion statute takes healthcaredecisions away from women and healthcare professionals).Physicians in Iowa will now face the same sort of dilemmas at the expenseof their patients as they try to discern whether an abortion is necessary to “pre-serve the life of the pregnant woman” as opposed to whether an abortion wouldprevent the woman from experiencing life-altering health complications. Com-pare Iowa Code § 146A.1(6)(a), with id. § 146E.1(4). That is if there are physi-cians trained and willing to perform abortions at all in Iowa. As I have alreadydiscussed above, data shows medical residents are starting to avoid even apply-ing for positions in states with significant abortion bans. 21 And obstetricians who21 See Medical Residents are Starting to Avoid States with Abortion Bans.

45already live in those states with strict abortion laws are discontinuing their prac-tice, no longer providing abortions, or leaving the state.In Idaho, for instance, more than fifty obstetricians stopped practicing inthe state since its strict abortion ban took effect in August 2022, and only twoobstetricians moved to the state to practice in a fifteen-month span. 22 Two hos-pitals closed their obstetric programs, and a third program was in “serious jeop-ardy” of closing. 23 Additionally, around 85% of obstetricians and gynecologistsin the state practiced in its seven most populous counties, while only twenty-twoof forty-four counties had access to any practicing obstetricians. 24This should be cause for concern in Iowa, where we already rank dead lastwith the fewest ob-gyns per capita of any state, and many pregnant women facelong drives to receive the medical care they need. 25 "Since 2000, 31 Iowa coun-ties—most of them rural—have closed their obstetric services. By 2020, just 46of the state's 99 counties had at least one hospital that provided obstetric ser-vices, down from 77 counties in years prior.”26To be clear, this trend will affect all pregnant women in Iowa—not justthose seeking an abortion. While Iowa continues to see a decline in obstetricfacilities and providers, “the rate of obstetric complexities has risen, including agreater average maternal age; increased risks for obesity, diabetes, and high22The Associated Press, Dozens of Idaho Obstetricians Have Stopped Practicing There SinceAbortions Were Banned, Study Says, AP News (Feb. 21, 2024, 8:45 PM) [hereinafter Dozens ofIdaho Obstetricians Have Stopped Practicing], https://apnews.com/article/idaho-abortion-ban-doctors-leaving-f34e901599f5eabed56ae96599c0e5c2 [https://perma.cc/7X58-ZXMV].23 Dozens of Idaho Obstetricians Have Stopped Practicing.24 Dozens of Idaho Obstetricians Have Stopped Practicing.25 See Novid Parsi, Delivering Help to Address Iowa's Obstetric Care Needs, Medicine Iowa(Spring 2024) [hereinafter Delivering Help to Address Iowa's Obstetric Care Needs], https://med-icineiowa.org/spring-2024/delivering-help-address-iowas-obstetric-care-needs[https://perma.cc/3KH2-SJRH].26 Delivering Help to Address Iowa's Obstetric Care Needs.

46blood pressure among mothers; increased pre-delivery hospital stays; morepremature births; and more babies requiring neonatal intensive care units.”27Plus, “[t]he farther that pregnant women must travel for care, the greater therisks of morbidity for the mother or the infant.”28“Preserving the life or health of the woman necessarily includes providingan abortion when necessary to prevent severe, life altering damage.” Wrigley v.Romanick, 988 N.W.2d 231, 242–43 (N.D. 2023). Iowa's medical emergency ex-ception fails on this front because its definition of “[m]edical emergency” explic-itly states that it does not include situations “when continuation of the preg-nancy will create a serious risk of substantial and irreversible impairment of amajor bodily function of the pregnant woman.” Iowa Code § 146A.1(6)(a). Doesthat mean there is no exception even in cases where a woman will be forced toendure a hysterectomy because she could not obtain a timely abortion underthis law? See Idaho, 623 F. Supp. 3d at 1105 (discussing medical complicationsduring pregnancy that could result in a hysterectomy if not treated swiftlythrough abortion).It also specifically excludes "psychological conditions [or] emotional condi-tions." Iowa Code § 146A.1(6)(a). Accordingly, “[i]f the pregnant woman has aserious mental health condition, such as bipolar disorder or schizophrenia, andtakes medications which are contraindicated for pregnancy,” she must “eithertake those medications and deal with the impacts the medication will have onthe unborn or stop taking potentially life-saving medications and hope for thebest." Planned Parenthood Great Nw., 522 P.3d at 1225. This example is part ofa bigger picture in which nearly 23% of pregnancy-related deaths are attributed27 Delivering Help to Address Iowa's Obstetric Care Needs.28 Delivering Help to Address Iowa's Obstetric Care Needs.

47to mental health conditions that include suicide and overdose or poisoning re-lated to substance use disorder, according to the Centers for Disease Controland Prevention. 29Other life-altering consequences that may not qualify under the “medicalemergency” definition because they are not life-endangering include “severe sep-sis requiring limb amputation, uncontrollable uterine hemorrhage requiring hys-terectomy, kidney failure requiring lifelong dialysis, [and] hypoxic brain injury,"potentially requiring these women to live the rest of their lives “with significantdisabilities and chronic medical conditions as a result of [their] pregnancy com-plication[s]." Wrigley, 988 N.W.2d at 243 (quoting Idaho, 623 F. Supp. 3d at1101); see also Allegheny Reprod. Health Ctr., 309 A.3d at 823 (acknowledginginformation from providers that “continuing a pregnancy can exacerbate [pre-existing] conditions and pose serious threats to a woman's long-term health” andthat “[t]he ‘health damage, though serious and potentially life-threatening, isusually not imminent enough to qualify the patient for abortion coverage underthe statutory exception to the [Medicaid] coverage ban, which requires that theabortion be necessary to “avert the death” of the woman, rather than to avoidserious long-term health consequences" ").And though it should be obvious, the construction of this exception con-tradicts the State's claim that one of its interests in protecting life—both bornand unborn is the “protection of maternal health and safety.” “A state interestthat truly was concerned with protecting women's health would contain an ex-ception. . . for the health of the woman even when she does not face death ... .”Allegheny Reprod. Health Ctr., 309 A.3d at 957 (Wecht, J., concurring). Sadly,are29Ctrs. for Disease Control & Prevention, Four in 5 Pregnancy-Related Deaths in the U.S.Preventable, CDC Newsroom (Sept. 19, 2022), https://www.cdc.gov/media/re-leases/2022/p0919-pregnancy-related-deaths.html [https://perma.cc/JL2P-27EX].

48that is not the case here, and this lack of regard for the lives of pregnant womenoverlooks the impact that pregnancy complications can have on the family unit.See Planned Parenthood Great Nw., 522 P.3d at 1220.In particular, “[t]he health risks and complications a woman faces duringpregnancy can leave her unable to care for her existing children throughout thepregnancy." Id. “Even after childbirth, it can take months or years for a womanto fully recover—if she completely recovers.” Id. Worse, when pregnancy compli-cations result in the mother's death, the life of the fetus that the statute is aimingto protect if it survives birth—and any of the woman's remaining children areleft without a mother. Id. “A mother cannot care for, teach, and otherwise rearher children if pregnancy complications claim her life or lead to serious healthconsequences. [,] creating a domino effect where she can no longer providecare to those who need her most.” Id. Nevertheless, this statute treats her life asan afterthought....In virtually any other medical setting, a competent nonpregnant personexperiencing medical complications may collaborate with their physician to makean informed decision about their course of treatment. See Okla. Call for Reprod.Just., 526 P.3d at 1131 (“We know of no other law that requires one to wait untilthere is an actual medical emergency in order to receive treatment when theharmful condition is known or probable to occur in the future.”). But when preg-nant women experience life-threatening complications that could require anabortion, the statute's exception “put[s] all medical decisions and the power topursue the pregnant patient's safety solely in the hands of the physician; thepatient will play no part” unless she has the ability to travel to a state that willterminate the pregnancy. Cameron, 664 S.W.3d at 676 (Keller, J., concurring inpart and dissenting in part). It does so “not based upon science or viability but

49upon a blanket assertion that [our State is] the protector[] of ‘life' from the mo-ment of conception." Individual Members of Med. Licensing Bd. of Ind.,233 N.E.3d at 461 (Bailey, J., concurring).303. Fetal abnormalities incompatible with life. Like the statute's medicalemergency exception, the exception authorizing abortions when the fetus has afetal abnormality incompatible with life is largely unusable because, as dis-cussed below, parents will often learn this devastating news when the fetal ab-normality exception is no longer an option for them. Greer Donley, Parental Au-tonomy Over Prenatal End-of-Life Decisions, 105 Minn. L. Rev. 175, 218–19(2020) [hereinafter Donley]. This exception authorizes an abortion if “[t]he at-tending physician certifies that the fetus has a fetal abnormality that in the phy-sician's reasonable medical judgment is incompatible with life.” Iowa Code§ 146E.1(3)(d). The Board's rules require that certification contain the “diagnosisof the abnormality”; “basis for the diagnosis, including the tests and proceduresperformed, the results of those tests and procedures, and why those results sup-port the diagnosis"; and "[a] description of why the abnormality is incompatiblewith life." Iowa Admin. Code r. 653–13.17(4)(b). “The diagnosis and the attendingphysician's conclusion must be reached in good faith following a bona fide effort,consistent with standard medical practice and reasonable medical judgment, todetermine the health of the fetus.” Id. r. 653–13.17(4)(b) (flush language).30It is concerning that our legislators are attempting to dictate how medical professionalsperform their job, such as requiring the use of an abdominal ultrasound in testing for a fetalheartbeat when a transvagin*l ultrasound is the preferred practice in the first trimester becauseit can provide more detailed results. See Venkatesh A. Murugan et al., Role of Ultrasound in theEvaluation of First-Trimester Pregnancies in the Acute Setting, Ultrasonography (Oct. 16, 2019)https://www.e-ultrasonography.org/journal/view.php?doi=10.14366/usg. 19043[https://perma.cc/2DM2-Y5GC]; NHS Found. Tr., Cambridge Univ. Hosps., Transvagin*l Ultra-sound Scan (TVS) in Early Pregnancy, https://www.cuh.nhs.uk/patient-information/transvagi-nal-ultrasound-scan-tvs-in-early-pregnancy/ [https://perma.cc/96MJ-2JW5].

50This exception is not available once the fetus reaches twenty or moreweeks if there is a detectable fetal heartbeat unless the pregnant woman has amedical emergency that threatens her life “or the abortion is necessary to pre-serve the life of an unborn child.” Iowa Code § 146E.2(2)(b). Yet, “parents mostcommonly receive a fetal diagnosis of an anatomical condition during the anat-omy ultrasound, which occurs roughly halfway through the pregnancy (aroundtwenty weeks),” and “[m]ost anatomical conditions cannot be diagnosed soonerthan this mid-pregnancy ultrasound because the organs are not sufficiently de-veloped before this point.” Donley, 105 Minn. L. Rev. at 218–19.Even if a fetal abnormality is discovered before the twenty-week deadlineto the exception, it may take weeks for the pregnant woman to undergo addi-tional tests or receive a second opinion to feel confident in the diagnosis andunderstand the fetus's prognosis. Id. at 219. While time is of the essence underthe fetal abnormality exception, it can also take a pregnant woman weeks toobtain an appointment to terminate her doomed pregnancy, comply with thestate-mandated waiting period, and collect the funds necessary to pay for theprocedure. Id. at 219–20. Thus, the statute's twenty-week ban will either preventpregnant women from ending their pregnancy that is incompatible with life,"rush an incredibly fraught decision, or force them to travel out of state, addingadditional stress, cost, and trauma.” Id. at 220.Finding out that a baby so desperately wanted will not survive birth iscertainly heartbreaking. The twenty-week limit on the fetal abnormality excep-tion has the callous potential to make an incredibly difficult situation even worseby forcing pregnant women to carry their doomed pregnancies to term with thepain of knowing their fetus will not survive.This is already happening in other states with comparable exceptions. InSouth Carolina, a pregnant woman was forced to carry her nonviable fetus for

51seven weeks after learning at the fetus's eighteen-week scan that it had a rarecongenital heart defect with “a very grim outlook” in even the best-case sce-nario.³¹ Because it was too late to end the pregnancy under South Carolina law,she had to travel to another state to obtain the procedure. 32In Alabama, where the state's strict abortion ban made exceptions for con-ditions in which the fetus would be stillborn or die shortly after birth, doctorsdenied a patient the option to terminate her pregnancy even though her fetushad a severe genetic abnormality that doctors said would result in either a still-birth or death immediately after birth. 33 She had to seek financial help and thenmake a daylong drive with her husband to Washington D.C. for the procedure.³4The woman opted for sterilization shortly thereafter, explaining, “The experience,going through everything with finding out that your child is not going to live itinflicted so much trauma on me. . . . I don't ever want to go through that againand I wouldn't wish this upon my worst enemy.”35...In Florida, it was too late to terminate a pregnancy under the state's abor-tion ban when doctors informed a pregnant woman at her fetus's twenty-four-week ultrasound that the fetus had no kidneys and was sure to die. 36 Unable to31Stephanie Emma Pfeffer, Former Ms. South Carolina Forced to Carry Unviable Fetus for7 Weeks: It "Was Like a Dagger to the Heart,” People (Nov. 11, 2022, 1:04 PM) [hereinafter FormerMs. South Carolina Forced to Carry Unviable Fetus for 7 Weeks: It “Was Like a Dagger to the Heart],https://people.com/health/woman-forced-to-carry-unviable-fetus-for-7-weeks/[https://perma.cc/B24S-QCX7].32 Former Ms. South Carolina Forced to Carry Unviable Fetus for 7 Weeks: It “Was Like aDagger to the Heart.33 Nadine El-Bawab, Tess Scott, Christina Ng, & Acacia Nunes, In Post-Roe America,Women Detail Agony of Being Forced to Carry Nonviable Pregnancies to Term, ABC News (Dec. 14,2023, 5:06 AM) [hereinafter In Post-Roe America], https://abcnews.go.com/US/post-roe-amer-ica-women-detail-agony-forced-carry/story?id=105563349 [https://perma.cc/4QDE-FKBM].34 In Post-Roe America.35 In Post-Roe America.36Elizabeth Cohen, Carma Hassan, & Amanda Musa, Because of Florida Abortion Laws,She Carried Her Baby to Term Knowing He Would Die, CNN (May 3, 2023, 10:32 AM) [hereinafter

52afford the costs of traveling out of state to terminate the pregnancy, the womancarried to term a baby who had no kidneys and died in her arms shortly afterbirth just as her doctors had predicted would happen. 37 These stories are notunique.38The agonizing experiences of these women not only highlight the lack ofhumanity inherent in Iowa's comparable statute but also demonstrate anotherproblem with the State's claim that this statute relates to a "vital interest inprotecting unborn human life at all stages of development.” Namely, a statutoryexception authorizing the abortion of a fetus diagnosed with a fetal abnormalitythat is incompatible with life before twenty weeks does nothing to protect unbornlife at all stages of development. And if the reason for prohibiting the abortion ofa fetus with a fetal abnormality incompatible with life after twenty weeks is thatthe fetus could survive by some miracle, then the exception authorizing abor-tions for these cases before the fetus reaches twenty weeks makes even lesssense in the context of protecting unborn life.Both situations involve fetuses with abnormalities incompatible with life,and nothing in the record demonstrates why a pregnant woman is only allowedto end this doomed pregnancy before twenty weeks. In any event, there is nounborn life to protect when a fetus has an abnormality incompatible with life.Because of Florida Abortion Laws, She Carried Her Baby to Term Knowing He Would Die],https://www.cnn.com/2023/05/02/health/florida-abortion-term-pregnancy/index.html[https://perma.cc/L4MM-GUHN].37 Because of Florida Abortion Laws, She Carried Her Baby to Term Knowing He Would Die.38 See, e.g., Nadine El-Bawab, Tess Scott, Christina Ng, & Acacia Nunes, Delayed andDenied: Women Pushed to Death's Door for Abortion Care in Post-Roe America, ABC News (Dec. 14,2023,5:09 AM),https://abcnews.go.com/US/delayed-denied-women-pushed-deaths-door-abortion-care/story?id=105563255 [https://perma.cc/2ZXP-VLJ8]; Cameron, 664 S.W.3d at665 (Bisig, J., concurring in part and dissenting in part) (describing the stories of two Kentuckywomen whose healthcare providers informed them that they could not help the women terminatetheir nonviable pregnancies).

53Instead of promoting life, the statute is promoting birth—even when that birthresults in an already deceased baby.4. In vitro fertilization. It would be cruelly ironic for a law purportedly en-acted to save babies to actually result in fewer babies being born to familiesthrough in vitro fertilization (IVF). Yet, the statute's poorly crafted “twin excep-tion" that ostensibly exists with IVF in mind raises serious questions about theoperation of IVF programs at the University of Iowa and elsewhere that give hopeto families desperately trying to have babies. Under that exception, a woman mayobtain an abortion even when she is twenty or more weeks pregnant and theunborn child has a detectible fetal heartbeat if "the abortion is necessary to pre-serve the life of an unborn child." Iowa Code § 146E.2(b). An “unborn child” un-der the statute is “an individual organism of the species hom*o sapiens from fer-tilization to live birth.” Id. § 146A.1(6)(b); see also id. § 146E.1(7). Can it be thatthe legislature is attempting to carve out an exception for voluntary abortionsafter twenty weeks for women who choose to become pregnant through IVF yetdeny that same opportunity for women who have become pregnant through rapeor incest?This exception raises a host of potential issues for women in Iowa whor*sort to IVF to help them get pregnant. One issue is that the definition of “un-born child" is essentially the same as the definition that caught national atten-tion in Alabama, where the Alabama Supreme Court held that the state's Wrong-ful Death of a Minor Act applied to all “unborn children,” including embryos keptin a cryogenic nursery located outside of a biological uterus at the time of theirdestruction. See LePage v. Ctr. for Reprod. Med., P.C., So. 3d2024 WL 656591, at *2, *6 (Ala. Feb. 16, 2024) (en banc) ("The upshot here isthat the phrase ‘minor child' means the same thing in the Wrongful Death of aMinor Act as it does in everyday parlance: ‘an unborn or recently born' individual

5454member of the human species, from fertilization until the age of majority.”). Thatdefinition, and the court's interpretation of it, raised questions for providers andpatients alike, including whether patients had the autonomy to donate or destroyunused embryos and whether they could freeze future embryos that are createdduring fertility treatment. 39Iowa was not immune from this fallout, as Iowa's Senate Judiciary Com-mittee declined to bring up a bill shortly thereafter that would increase the pen-alties for terminating a person's pregnancy without their consent, which alsochanged the phrase “terminates a human pregnancy” in the current law to"causes the death of an unborn person.'.”40 The committee chair stated that hepulled the bill over “definite concerns about in vitro fertilization and the negativeeffects and unintended consequences with that.”41 Similarly, the house judiciarycommittee chair indicated his belief that Iowa presented a different situationfrom Alabama but that “we have to come to terms with how we're going to dealwith the IVF issue.”42 Opponents of the bill in the legislature also warned that itcould jeopardize IVF treatment in Iowa. 43 However, laws that treat IVF clinics or39 See, e.g., Kim Chandler, Warnings of the Impact of Fertility Treatments in Alabama Rushin After Frozen Embryo Ruling, AP News (Feb. 21, 2024), https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca [https://perma.cc/XC4K-TCQS].40Stephen Gruber-Miller, IVF Fears Scuttle Iowa Bill Raising Penalty for Ending PregnancyWithout Consent, Des Moines Reg. (Mar. 14, 2024) [hereinafter IVF Fears Scuttle Iowa Bill RaisingPenalty for Ending Pregnancy Without Consent], https://www.desmoinesregis-ter.com/story/news/politics/2024/03/14/key-lawmaker-brad-zaun-wont-advance-bill-with-penalties-for-killing-an-unborn-person-ivf-concerns/72961183007/ [https://perma.cc/9HJ9-XUK9].41 IVF Fears Scuttle Iowa Bill Raising Penalty for Ending Pregnancy Without Consent.42 IVF Fears Scuttle Iowa Bill Raising Penalty for Ending Pregnancy Without Consent.43 IVF Fears Scuttle Iowa Bill Raising Penalty for Ending Pregnancy Without Consent.

55embryos created through IVF differently from other physicians or embryos cre-ated through natural reproduction—including rape or incest-raise other con-cerns, such as the denial of equal protection.Another issue stems from the fertilization process itself. With IVF, eggsand sperm are removed from the female and male, and “fertilization happensoutside the body," with the embryo “grown outside the body for a minimum ofthree to five days before being placed back into the body." Rebecca Feinberg,Transcript: The Future of IVF Post Dobbs, 37 J.L. & Health 35, 42 (2023) [herein-after Feinberg]. And during this fertilization process, there is an increased num-ber of embryos to increase the chance of achieving a live pregnancy. Id. at 46.Because multiple embryos are often transferred into a woman's uterus to achievepregnancy, multiple pregnancies―i.e., twins or triplets-occur more often com-pared to natural reproduction. Judith Daar, Where Does Life Begin? Discerningthe Impact of Dobbs on Assisted Reproductive Technologies, 51 J.L. Med. & Ethics518, 521 (2023) (“In 2019, nearly 17% of all [assisted reproductive technology]births were multiples compared to just over 3% of all U.S. births.”).With more fetuses comes more risks for both the mother and the fetuses.Id. “When a pregnancy results in high order multiples, high-risk obstetricianstypically recommend selective reduction” or abortion to terminate one or more ofthe fetuses and allow the pregnancy to progress more safely for both the remain-ing fetus or fetuses and the mother. Feinberg, 37 J.L. & Health at 50. Neitherthe statute nor the Board's rules provide guidance on how a physician is to makethis determination that an “abortion is necessary to preserve the life of an un-born child." Iowa Code § 146E.2(b). Like the medical emergency exception, it isunclear how this exception applies in practice. And like the medical emergencyexception, physicians will be left guessing and turning to lawyers for help makingtheir medical decisions in addressing how to treat these high-risk pregnancies.

56Finally, this exception allowing the termination of one unborn child to pre-serve the life of another when both unborn children have detectable fetal heart-beats calls into question the State's professed vital interest in protecting unbornlife at all stages of development. Consider a mother in a fertility program tryingfor one baby who gets pregnant with quadruplets, all with detectable fetal heart-beats. According to her physicians, there is a nearly fifty percent chance thatsome or all of the babies will die or suffer catastrophic permanent disabilities ifshe tries to carry all four to birth. But if she aborts one of them, the odds of theother three being born healthy increases to eighty-five percent. Under the stat-ute's vague exception allowing for an abortion to preserve the life of an unbornchild, it is unclear-at best-how a physician should proceed. At worst, it meansthe mother could lose all four babies because the physician determines she doesnot meet the exception.II. Conclusion.In my opinion, the only female lives that this statute treats with any mean-ingful regard and dignity are the unborn lives of female fetuses. After that, thisstatute forces pregnant women (and young girls) to endure and suffer throughlife-altering health complications that range from severe sepsis requiring limbamputation to a hysterectomy so long as those women are not at death's door.All in the name of promoting unborn life—or, more accurately, birth. Nothingpromotes life like a forced hysterectomy preventing a woman from ever becomingpregnant again because she could not terminate a doomed pregnancy under themedical emergency exception.

57Those Iowans opposed to abortion with extremely limited exceptions mayapplaud today's decision because their interests align with the State's, and thisruling is a pivotal step in restricting the procedure in our state. Make no mistake:“[T]his discrete and momentary alignment is no protection against the state shift-ing its target. Empowering the state to direct and occupy the lives of individualsin ways that serve our personal interests also empowers the state to direct andoccupy our lives in ways that do not." Allegheny Reprod. Health Ctr., 309 A.3d at970 (Wecht, J., concurring). Today's winners could very well be on the other sideof the fence tomorrow. Although this fetal-heartbeat law most directly affectswomen, the ominous consequences of affirming this level of government intru-sion will negatively impact all current and future Iowans in one way or another.Waterman and Mansfield, JJ., join this dissent.

58#23-1145, Planned Parenthood v. ReynoldsMANSFIELD, Justice (dissenting).Six years ago, I dissented from a decision that subjected all abortionregulation in Iowa to strict scrutiny. See Planned Parenthood of the Heartland v.Reynolds ex rel. State (PPH 2018), 915 N.W.2d 206, 246–59 (Iowa 2018)(Mansfield, J., dissenting). I wrote, “The fact that there are two profoundconcerns—a woman's autonomy over her body and human life—has to drive anyfair-minded constitutional analysis of the problem.” Id. at 249. I remain of thatview. But the court around me has shifted. So, instead of a constitutional rulethat gives no weight to the State's interest in human life, we now have in Iowa aconstitutional rule that gives no weight to a woman's autonomy over her body.PPH 2018 “lack[ed a] sense of balance and perspective." Id. at 246. So,regrettably, does today's decision.I believe that subjecting a near-total ban on abortion to a rational basistest the same test we apply to traffic cameras, and a more forgiving test thanthe one we apply to a law not allowing county auditors to correct defectiveabsentee ballot applications—disserves the people of Iowa and theirconstitution.44 The liberty protected by article I, section 9 of the IowaConstitution includes a woman's ability to make decisions regarding her ownbody, just as it includes rights of procreation, parenting, and to usecontraception. Because Iowa Code section 146E.2 (2023) largely eliminates awoman's ability to end a pregnancy in our state, I would hold that it isunconstitutional and affirm the temporary injunction.44 See Behm v. City of Cedar Rapids, 922 N.W.2d 524, 552-55 (Iowa 2019) (applyingrational basis test to use of traffic cameras); League of United Latin Am. Citizens of Iowa v. Pate,950 N.W.2d 204, 209–10 (Iowa 2020) (per curiam) (applying intermediate scrutiny to election lawchange).

59I am convinced that the legislature and the Governor adopted chapter146E out of the highest and best motives. They believe in the total sanctity ofhuman life, including unborn life. But I fear that this is going to turn out badly.Chapter 146E will not end abortions for Iowans; it will only end most abortionsin Iowa. When country after country around the world is legalizing abortion, it isincongruous for one of the freest states, in the freest country in the world, to beeffectively outlawing it.45Iowa recognizes a host of freedoms: the freedom to bring a loaded firearminto a government building, the freedom to ride a motorcycle without a helmet,the freedom to use cannabidiol for untested and unproven medical purposes,and the freedom to throw evidence of a crime into a trash can and not worryabout the police retrieving it.46 Everyone is free, except for the 600,000 Iowawomen of childbearing age who will have no legal option in our state but to carrya pregnancy to term in most circ*mstances.In part I of this dissent, I will discuss the practical consequences of liftingthe injunction. In part II, I will respond to the majority's contention that in 2022,we held that abortion wasn't a fundamental right. In part III, I will explain whya woman's autonomy over her body is entitled to greater protection under ourprecedents than the rational basis test. In part IV, I will set forth the45 See Abortion Law: Global Comparisons, Council on Foreign Rels. (Mar. 7, 2024,2:30 P.M.), https://www.cfr.org/article/abortion-law-global-comparisons [https://perma.cc/2QVX-7Q99] (noting that from 1994 to 2023 sixty countries increased access to abortion andfour countries, including the United States, decreased access). With few exceptions, countrieswith democratically elected governments that respect the rule of law allow abortion to someextent. See id. (presenting a country-by-country map). In 2021, “[s]ixty-seven countries' lawspermit[ted] abortion upon request with varied gestational limits, whereas 26 countriesprohibit[ed] abortion altogether.” Madison Glennie et al., The World's Abortion Laws, in WhoseChoice is It?: Abortion, Medicine, and the Law 1, 1 (David F. Walbert & J. Douglas Butler eds.,7th ed. 2021) (footnote omitted).46 See Iowa Code § 724.28(3); id. § 124E.12(4)(a); State v. Wright, 961 N.W.2d 396, 420(Iowa 2021).

60constitutional standard that I believe applies to abortion regulation in Iowa. Andin part V, I will explain why chapter 146E is unconstitutional under thatstandard.I. The Practical Consequences of Lifting the Injunction.Reasonable people can-and do-disagree strongly about abortion. Itposes many difficult, wrenching questions. For an abortion opponent: Should awoman carrying twins be allowed to abort one fetus if the two are not doing welltogether, and this is the best chance of avoiding a bad outcome for both? For anabortion-rights advocate: Does a woman's autonomy over her body include theright to have an abortion for sex-selection purposes?Regardless, Iowa Code chapter 146E clearly plants a flag at one end of thisdebate. By dissolving the temporary injunction and authorizing Iowa Codesection 146E.2 to take effect, today's majority has eliminated a woman's abilityto have an abortion as it has existed in Iowa since 1973.It should be noted that the evidence in these proceedings has come fromthe plaintiffs. The plaintiffs filed affidavits; the State elected not to make anyfactual record.The record shows that the statute essentially bans abortions six weeksafter the last menstrual period or about two weeks after a woman with a regularmenstrual cycle would have missed a period. But many women do not haveregular menstrual cycles and would not realize they are pregnant at this time.Many ob-gyns will not schedule an initial appointment until well after the sixthweek. If there is a serious but nonfatal fetal abnormality, there is no way to knowthis by the sixth week. In Iowa, over 90% of existing abortions occur after thesixth week.Other issues exist. Asking for a medical appointment and obtaining oneare two different things. Even men like me can attest to the delays one inevitably

61experiences in trying to see a doctor or their assistant. Another complicatingfactor is that the clinics providing abortions in Iowa have the capacity to performabortions, at most, three days a week.Also, Iowa Code section 146A.1, not at issue here, requires at least atwenty-four-hour waiting period between the woman's first visit to the abortionprovider and the actual abortion itself. Moreover, minors under the age ofeighteen must go through a parental notification or a judicial bypass beforeundergoing an abortion, which takes additional time. See Iowa Code § 135L.3.In whole, this means that a woman in Iowa has at most two weeks todetermine she is pregnant, decide she does not want to carry the pregnancy toterm, schedule and attend her initial visit with the medical provider that wouldperform the abortion, and schedule and attend the follow-up visit for the abortionitself at least twenty-four hours later. In short, Iowa Code chapter 146Epreserves the theoretical, but not the practical, ability for a woman to have anabortion in Iowa.II. Our 2022 Decision Rejected Strict Scrutiny of AbortionRegulations; It Did Not Hold That There Was No Fundamental Right.My colleagues spend much of their majority opinion missing a point thatwas obvious to the district court in this case. That is, my colleagues contend thatwe previously held in 2022 that abortion is not a fundamental right under theIowa Constitution. That's simply wrong, and repeating that assertion five times,as the majority does in the course of its opinion, doesn't make it any more true.Our 2022 decision overruled our 2018 decision where we had gone beyondRoe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of SoutheasternPennsylvania v. Casey, 505 U.S. 833 (1992), to hold that abortion was afundamental right requiring strict scrutiny of all abortion restrictions. PlannedParenthood of the Heartland, Inc. v. Reynolds ex rel. State (PPH 2022), 975 N.W.2d

62710, 715 (Iowa 2022). The scope of our 2022 decision was clear: "[A]ll we holdtoday is that the Iowa Constitution is not the source of a fundamental right toan abortion necessitating a strict scrutiny standard of review for regulationsaffecting that right.” Id. at 716 (emphasis added). As the district court put it inthis case,The controlling opinion in PPH 2022, however, did not find that therewas no fundamental right to an abortion protected under Iowa'sConstitution. Rather, the Court only held that “the IowaConstitution is not the source of a fundamental right to an abortionnecessitating a strict scrutiny standard of review for regulationsaffecting that right.” PPH 2022, 975 N.W.2d at 716 (emphasis added).That a distinction was intended is apparent from the Respondents’reasoning itself. If the court simply found that there was nofundamental right to an abortion, there would have been no reasonto direct that undue burden remained the governing standard; thestandard would have defaulted to the rational basis test under thesame rationale as Middlekauff and Horsfield. That did not happen,prompting Justice McDermott's dissent . . . .In 2022, we emphasized that a proper legal standard—unlike 2018's strictscrutiny needed to account for the weighty considerations on both sides:We agree with the PPH [2018] majority that “[a]utonomy anddominion over one's body go to the very heart of what it means to befree." We also agree that “being a parent is a life-altering obligationthat falls unevenly on women in our society.” Yet, we mustdisapprove of PPH [2018]'s legal formulation that insufficientlyrecognizes that future human lives are at stake-and we mustdisagree with the views of today's dissent that the state has nolegitimate interest in this area.Id. at 746 (second alteration in original) (first quoting PPH 2018, 915 N.W.2d at237; then quoting id. at 249 (Mansfield, J., dissenting)). Thus, PPH 2022overturned strict scrutiny but did not go further to hold that a woman lackedany kind of fundamental right.There are fundamental rights that the state can regulate without triggeringstrict scrutiny. One example is voting. Voting is unquestionably a fundamental

63right, but the state has a very significant interest in regulating voting, so wesubject voting regulations to an intermediate standard of review. See League ofUnited Latin Am. Citizens of Iowa v. Pate (LULAC), 950 N.W.2d 204, 209 (Iowa2020) (per curiam) (applying the same “balancing approach” in another votingcase); id. at 222–23 (Oxley, J., dissenting) (noting that voting is a fundamentalright but also that voting regulations are subjected to a balancing approach);Democratic Senatorial Campaign Comm. v. Pate, 950 N.W.2d 1, 6-7 (Iowa 2020)(per curiam) (applying the Anderson-Burdick “balancing approach” to a stateconstitutional challenge to voting regulations)."The majority makes an unsuccessful attempt to rebut the analogy. Itcontends that with voting, there are constitutional requirements on both sidesand, with abortion, there are no constitutional requirements on either side. Idisagree that there is no constitutional right of autonomy over one's own body.For example, we have noted that there is a widely recognized constitutional rightto refuse medical treatment. See Polk Cnty. Sheriff v. Iowa Dist. Ct., 594 N.W.2d421, 426 (Iowa 1999) (en banc). In a particular case, this right is subject to abalancing test based on the state interests involved. Id. at 426–31.III. Iowa Recognizes a Constitutional Right for People to MakePersonal Decisions Concerning Their Own Bodies, Procreation, andParenting.Whatever may have been the scope of article I, section 9 in 1857, today itprotects an individual's right to make personal decisions regarding procreationand parenting. This is not because any particular set of supreme court justiceshave imposed their policy preferences on Iowans but for many other logicalreasons. Just as property law has not remained static since 1857, so too notions

64of liberty have also evolved. 47 Today we value personal autonomy; some criticswould argue that this has come at the expense of personal responsibility.Additionally, the 1857 Iowa constitutional framework that gave full protectionsonly to white males has been supplanted by one that protects all citizens equally.A. Regardless of Original Intent, There Is Today a Substantive DueProcess Right to Make Decisions Concerning Procreation, Parenting, andOne's Own Body. Our constitution proclaims that “no person shall be deprivedof life, liberty, or property, without due process of law." Iowa Const. art. I, § 9.Originally "due process of law” may have meant simply “ordinary judicialproceedings in court,” Stewart v. Bd. of Supervisors, 30 Iowa 9, 28 (1870), but itdid not take long for the due process clause to assume substantive importance.For example, in Wragg v. Griffin, we held that it violated due process of law toforce someone suspected of venereal disease to provide a blood sample fortesting. 170 N.W. 400, 403 (Iowa 1919).More recently, in Santi v. Santi, we struck down a statute authorizing ourcourts to order grandparent visitation over the objection of parents as violatingsubstantive due process under article I, section 9. 633 N.W.2d 312, 321 (Iowa2001). We concluded that the statute “exalts the socially desirable goal ofgrandparent-grandchild bonding over the constitutionally recognized right ofparents to decide with whom their children will associate.” Id. at 320. We saidthat since the statute permits “state intrusion on fit parents' fundamental libertyinterest in childrearing, we find it facially unconstitutional under article I,sections 8 and 9 of the Iowa Constitution.” Id. at 321.In In re Marriage of Witten, a divorce case, we held that one party could notuse the parties' previously frozen human embryos without the other's47For example, at the time of the adoption of our constitution in 1857, it was illegal tohunt or fish on Sundays. See 1854 Iowa Acts ch. 33, § 1 (codified at Iowa Code § 4392 (1860)).

65consent even in the face of a prior agreement to the contrary. 672 N.W.2d 768,782-83 (Iowa 2003). We stated, “We think judicial decisions and statutes in Iowareflect respect for the right of individuals to make family and reproductivedecisions based on their current views and values.” Id. at 782. We added,[C]ourts that have considered one party's desire to use frozenembryos over the objection of the other progenitor have held that theobjecting party's fundamental right not to procreate outweighs theother party's procreative rights, even in the face of a prior agreementallowing one party to use the embryos upon the parties' divorce.Id. at 780.In Hensler v. City of Davenport, we addressed a municipal ordinance thatimposed fines and other sanctions on parents whose children repeatedly engagedin illegal activity and who failed to rebut a presumption of inadequatesupervision. 790 N.W.2d 569, 575–76 (Iowa 2010). We recognized that a parenthas a “fundamental parental right to exercise care, custody, and control overchildren" that warrants substantive due process protection. Id. at 581-82.In In re Guardianship of Kennedy, we held that sterilization of an individualwith intellectual disabilities without court approval would raise “serious dueprocess concerns.” 845 N.W.2d 707, 714–15 (Iowa 2014); see also Varnum v.Brien, 763 N.W.2d 862, 901 n.27 (Iowa 2009) (“The County does not specificallycontend the goal of Iowa's marriage statute is to deter gay and lesbian couplesfrom having children. Such a claim would raise serious due process concerns.");State ex rel. Iowa Dep't of Health v. Van Wyk, 320 N.W.2d 599, 606 (Iowa 1982)(en banc) (“As a matter of privacy persons enjoy a fundamental right to seek orreject medical treatment generally.”).In McQuistion v. City of Clinton, where a pregnant woman challenged amunicipality's refusal to accommodate her pregnancy with a light-duty workassignment, we stated that the right to procreate qualifies as a fundamental right

66for substantive due process purposes. 872 N.W.2d 817, 820-21, 833 (Iowa2015).In State v. Fatland, our court of appeals held that a condition prohibitingthe defendant from becoming pregnant while on probation should be eliminatedfrom the sentencing order because it “impinge[d] upon her fundamental right toprocreation.” 882 N.W.2d 123, 126 (Iowa Ct. App. 2016). The panel deciding thiscase included one of the members of today's majority. Id. at 124.In light of the foregoing, I fail to see how a woman's right not to procreatecan have no constitutional protection under the due process clause of article I,section 9. The decision not to have children is as fundamental as the decision tohave children.48The majority treats Iowa Code chapter 146E as a form of economic andsocial legislation. That is, it applies rational basis review because there aremerely “interests” on both sides that can be balanced by the legislature so longas the legislature advances a reasonably conceivable interest. Yet if rational basisis the correct standard to apply to a law that requires a woman to carry apregnancy to term, despite all the effects it has on her body and her future life,rational basis would also be the correct standard to apply to a law that does notallow her to do so. I reject both propositions.This does not mean that any governmental interference is subject to strictscrutiny. Previously, we have considered the degree of intrusion. In Hensler, weapplied only rational basis because “the ordinance does not intrude directly andsubstantially into a parent's parental decision-making authority, but insteadonly minimally impinges on a parent's fundamental right to direct the upbringing48 Could the Iowa Legislature limit family size, an issue that The Des Moines Registerpolled on in 1971? See James C. Mohr, Iowa's Abortion Battles of the Late 1960s and Early1970s: Long-term Perspectives and Short-term Analyses, 50 Annals Iowa 63, 73 (1989). Todaywe would say clearly no.

67of his or her child." 790 N.W.2d at 583. Likewise, in McQuistion, we rejected theconstitutional challenge on the ground that “[r]easonable regulations that do notdirectly and substantially interfere with the right may be imposed.” 872 N.W.2dat 833.The majority analogizes a constitutional right of personal autonomy overone's body to a hypothetical right to possess and use illegal drugs. Not so. Thereis a world of difference between telling a woman she has to carry a pregnancy toterm and telling someone they can't use meth. In the latter case, the state isn'tinterfering with decisions about procreation, sex, or parenting. It isn't forcingsomeone to donate their body to the burdens of pregnancy. It's simply putting aharmful outside agent off-limits because it leads to antisocial behavior. See, e.g.,State v. Hartog, 440 N.W.2d 852, 855 (Iowa 1989) (drawing a distinction forconstitutionalpurposes between "intimate decisions relating tomarriage, procreation, child rearing, education or family that have heretoforebeen recognized as deserving of heightened constitutional protection" and thedecision not to wear a seat belt (quoting People v. Kohrig, 498 N.E.2d 1158, 1161(Ill. 1986) (per curiam))).The better analogy, which the majority is surely aware of but doesn'taddress, is between laws restricting abortion and laws relating to contraception,sodomy, and same-sex marriage. If the rational basis test applies to the former,why not the latter? We held otherwise in Varnum v. Brien, 763 N.W.2d at 896-97.Should we have applied the rational basis test in Varnum?B. Constitutional Liberty, Especially for Women, Has Changed Since1857. Our state has changed dramatically since 1857 but particularly as to thestatus and rights of women. In 1998, the people of Iowa constitutionalized thosechanges to some extent by adopting the Iowa Equal Rights Amendment. See1997 Iowa Acts ch. 216, § 1 (constitutionalized at Iowa Const. art. I, § 1) (“All

68men and women are, by nature, free and equal, and have certain inalienablerights. . . ." (emphasis added)).I begin by trying to paint a picture of 1857. That's difficult to do. But wecan at least look at what was forbidden in the Iowa Code.Although abortion wasn't illegal when our 1857 constitution took effect,six months later the general assembly adopted a law making the performance ofan abortion a misdemeanor, “unless the same shall be necessary to preserve thelife of such woman.” 1858 Iowa Acts ch. 58, § 1 (codified at Iowa Code § 4221(1860)). This is often cited as proving that article I, section 9-as originallyunderstood could not have prohibited laws against abortion.The law applied to “every person who shall wilfully administer to anypregnant woman, any medicine, drug, substance or thing whatever, or shall useor employ any instrument or other means whatever, with the intent thereby toprocure the miscarriage of any such woman.” Id. A historian has explained that"the word 'pregnant' meant quickened," which occurred upon the "firstperception of fetal movement by the mother herself." James C. Mohr, Iowa'sAbortion Battles of the Late 1960s and Early 1970s: Long-term Perspectives andShort-term Analyses, 50 Annals Iowa at 63, 65 (1989). We might say today thatthis understanding avoids the word “pregnant” being superfluous to the word“miscarriage.” See Iowa Individual Health Benefit Reins. Ass'n v. State Univ. ofIowa, 999 N.W.2d 656, 663 (Iowa 2023) (“We presume statutes or rules do notcontain superfluous words.” (quoting State v. Boone, 989 N.W.2d 645, 650 (Iowa2023))).Regardless, and perhaps more importantly, Iowa Code section 4221 waspart of a larger legal fabric, a fabric that treated women in a protective yetpatronizing way. When our constitution was adopted, a father could sue a manfor seducing his daughter. Zerfing v. Mourer, 2 Greene 520, 520–21 (Iowa 1850).

69An unmarried woman could sue a man for seducing her. Gover v. Dill, 3 Iowa49(Clarke) 337, 339 (1856).4Seducing “any unmarried woman of previously chaste character” was afelony that could be punished by up to five years in prison. Iowa Code § 2586(1851); Iowa Code § 4209 (1860). Adultery was a felony that could be punishedby up to three years in prison; if only one of the parties was married, they werestill both guilty of adultery. Iowa Code § 2705 (1851); Iowa Code § 4347 (1860).Cohabitation was also a crime, although a misdemeanor. Iowa Code § 2709(1851); Iowa Code § 4351 (1860).49The Iowa Code of 1851 provided causes of action for seduction to an unmarried femaleand to the parent or guardian of a minor daughter. Iowa Code §§ 1696–1697 (1851). The Iowa Code of1860 provided the same causes of action. Iowa Code §§ 2790–2791 (1860).Defamation law also offers a window into 1850s Iowa. Consider Dailey v. Reynolds,4 Greene 354 (Iowa 1854). There, we held that allegations that a woman "was guilty offornication" were slanderous per se. Id. at 354, 356. In reaching this conclusion, we stated:A female against whom the want of chastity is established is at once driven beyondthe reach of every courtesy and charity of life, and almost beyond the portals ofhumanity. By common consent, such an imputation is everywhere treated as thedeepest insult and vilest charge that could be given or inflicted upon the victim orher friends. . . .Id. at 355. We added that "society, as now constituted, shrinks from” the idea that such claimswould not be slanderous per se “with a repugnance bordering upon horror” and that "[o]ur wholenatures rise up in rebellion against such a revolting proposition.” Id.Significantly, only two years later we held that allegations that a woman had obtained anabortion were not slanderous per se. Abrams v. Foshee, 3 Iowa (Clarke) 274, 278–80 (1856). Ourholding relied on the rule that to maintain a slander claim, the words must cause “some injuryor loss to the plaintiff, either in law or fact," and under the 1851 Iowa Code, abortion was notillegal. Id. at 277-78.We acknowledged Dailey was a “departure from the general rule” described above. Id. at280. But, we reiterated that the words spoken there “would tend necessarily to exclude [thewoman] from society, and render her infamous in the common sense of that term” and “wouldimmediately and necessarily tend to hinder her advancement in life.” Id. In our view, Dailey “ha[d]its origin, and receive[d] its sanction, in that just jealousy and care with which the reputation ofthe female for chastity, is guarded in every civilized community.” Id.

70So while a doctor could have gone to jail for performing an abortion, unlessthe man who impregnated the woman was her husband, there is a good chancethat he would have committed at least one crime as well.The second part of this picture is unthinkable today. We would view lawscriminalizing cohabitation and adultery as worthy of the Taliban, and wouldalmost certainly hold that they denied liberty without due process in violation ofarticle I, section 9. So the original constitutional landscape must have changedsince 1857.We have to see that landscape as a whole. We can't ignore the moralitycode of mid-19th century Iowa as some sort of unconstitutional anachronism,while treating the abortion law of mid-19th century Iowa as some sort ofconstitutional guidepost for today.Particularly that is true because in 1998, the citizens of Iowa voted by anoverwhelming majority to broaden article I, section 1 to include women.50 Thus,article 1, section 1 now provides, “All men and women are, by nature, free andequal, and have certain inalienable rights . . . .” Iowa Const. art. I, § 1 (emphasisadded).I adhere to my previously expressed view that article I, section 1 is not anindependent source of constitutional rights. See Garrison v. New Fashion PorkLLP, 977 N.W.2d 67, 93 (Iowa 2022) (Mansfield, J., concurring). It does not “add[]anything to the more specific constitutional guarantees elsewhere in the IowaBill of Rights.” Id. “Article I, section 1 is essentially a paraphrase of some of thestirring language of our Declaration of Independence.” Id. at 92. In that sense, ittells us what the principles of government should be rather than what the rulesof a specific government are. I tend to agree with the views of a late 19th-century50 See Iowa Sec'y of State, Iowa General Election - November 3, 1998: Official Canvass byCounty, at 440, https://sos.iowa.gov/elections/pdf/10-8.pdf [https://perma.cc/BS8J-NL65].

71treatise, “It may well be said that this section of the Constitution summarizes allthe most sacred rights of the citizen, and that the declarations contained in theremainder of Article I are simply more specific or particular statements of theprinciples therein embodied." S.M. Weaver, Iowa: Its Constitution and Laws 43(1897).But that doesn't mean it lacks significance that in 1998 women were addedto article I, section 1 by constitutional amendment. Our original constitution didnot give women the same rights as men. For example, only white male citizens—later male citizens—had the right to vote under article II, section 1. Iowa Const.art. II, § 1 (1857). Only white males could serve in the general assembly. See id.art. III, § 4. The right to trial by jury as recognized in article I, section 9 was aright to a trial exclusively before “men.” Id. art. I, § 9.The 1998 amendment was clearly meant to erase all that. So ininterpreting article I, section 9 regarding the rights of women, we should not bebound by the precise scope of the constitutional rights that were protected in1857 when it was largely a man's constitution.In 2014, I argued that when article II, section 5 of the Iowa Constitutionwas reenacted in amended form, this ratified the contemporaneousinterpretation of that provision under which “infamous crime” meant a felony.Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 862 (Iowa 2014) (Mansfield, J.,specially concurring). Or to put the matter less legalistically, “[T]here has beenconsiderable water under the bridge since 1857.” Id. at 861. This reset principlehas been recognized in numerous other jurisdictions. 51 What happened in 199851 See McIntire v. State, 83 N.E. 1005, 1006 (Ind. 1908) (“It has been held that, when aclause or provision of a Constitution or statute has been readopted after the same has beenconstrued by the courts of such state, it will be concluded that it was adopted with theinterpretation and construction which said courts had enunciated."); Kuhn v. La. HighwayComm'n, 142 So. 149, 150 (La. 1932) (“The presumption is that the Constitutional Conventionof 1898, of 1913, and of 1931, in retaining in the Constitution of each of those years the

72wasn't exactly a reset. Instead of updating a specific constitutional guarantee,the people of Iowa updated the general principles under which the specificguarantees should be read. Hence, when we interpret the specific guarantees ofthe Iowa Constitution, we must do so with attention to the rights of women asthey have evolved from 1857 to 1998. Although much of Democracy in Americarings true today, Tocqueville's observations about women may no longer apply:Thus Americans do not believe that man and woman have theduty or the right to do the same things, but they show the sameesteem for the role of each of them, and they consider them as beingswhose value is equal although their destiny differs.substance of the language of article 156 of the Constitution of 1879, intended that it should havethe same meaning that this court had given to it . . . ; otherwise the language would have beenchanged."); Wakem v. Inhabitants of Van Buren, 15 A.2d 873, 875 (Me. 1940) ("It is a general rulethat a reenactment, in substantially the same language, of a constitutional provision which hadbeen previously construed and explained by the court, carries with it the same meaningpreviously attributed by the court to the earlier provision, in the absence of anything to indicatethat a different meaning was intended."); Hitchco*ck v. State, 131 A.2d 714, 719 (Md. 1957)(“Where a constitutional provision has received a judicial construction and then is incorporatedinto a new or revised constitution, it will be presumed to have been re-adopted with theknowledge of the previous construction and to have been intended to have the meaning given itby that construction."); In re Sizer, 254 S.W. 82, 84 (Mo. 1923) (en banc) (“The readoption of theconstitutional provision now under consideration so many times with the interpretation placedupon it by this court, to say the least, is very persuasive evidence that the real meaning of theprovision was just what this court has so long been holding that it meant."); Bodie v. Pollock, 195N.W. 457, 458 (Neb. 1923) (per curiam) (“It is well settled in many, if not most, of the jurisdictionsof the country that, where a construction of constitutional provisions has been adopted and aconstitutional convention thereafter re-enacts such provisions, it re-enacts not only the languageof the provisions but the construction which has attached to the same."); Craig v. State, 50 Tenn.227, 230 (1871) ("The Convention which recently formed the new Constitution of this State,permitted the clause in the declaration of rights, to remain unaltered, with a full knowledge, asis to be presumed, of the decisions above mentioned, which, in our judgment, rests upon soundprinciple, and ought not to be disturbed."); LeCroy v. Hanlon, 713 S.W.2d 335, 340 (Tex. 1986)("The people ratified the court's approach by passing an identical provision in the 1876Constitution."); see also Clark v. Ada Cnty. Bd. of Comm'rs, 572 P.2d 501, 507 (Idaho 1977)(Lodge, Dist. J., specially concurring) (“That holding not only remains unchanged, it has beenre-enforced by the fact that... the people of Idaho have amended Article 18, Section 6 of theConstitution several times, and each time have retained the elective position of countyassessor."); McLinko v. Dep't of State, 279 A.3d 539, 592 n.20 (Pa. 2022) (Wecht, J., concurring)(“There can be no doubt that, where language is retained, its extant meaning and priorconstructions are relevant to its present interpretation.").

73Alexis de Tocqueville, Democracy in America v. 2, part III, ch. 12, 576 (Harvey C.Mansfield & Delba Winthrop eds. & trans., Univ. of Chi. Press 2000) (1840).While originalism is an important tool in constitutional interpretation, ithas its limits when considering a woman's rights relating to her body, sex, andprocreation. Do originalists really believe that a woman has the sameconstitutional right of autonomy over her body today as in 1857? Really? MaybeRosalind was referring to simplistic judicial originalism when she spoke of"lawyers in the vacation" who “sleep between term and term, and then theyperceive not how time moves." William Shakespeare, As You Like It act 3, sc. 2,11. 337-39.The 1857 constitutional debates spanned thirty-nine days and 1,061double-column pages. See 1-2 The Debates of the Constitutional Convention ofBlair Lord, rep.,the(W.1857),State of Iowahttps://publications.iowa.gov/7313/. Yet the word "woman" or "women"appears only sixteen times. See id. By comparison, the debates containthirty-eight references to “horse” or “horses.” See id. That Iowa no longer existstoday.C. The Majority's Reliance Exclusively on the Democratic Process toDefine the Scope of a Woman's Right of Autonomy Over Her Body isUnconvincing. Apart from its mistaken reliance on the 2022 decision and theillegal drug analogy, the majority offers only a brief explanation for why a womandoes not have a fundamental right of autonomy over her body. Essentially, itsays that the state has a long history of laws against abortion and that "historysupplies no support for abortion as a fundamental right.” I disagree with themajority for several reasons.First, we err if we define the fundamental right only in terms of therestriction at issue. We didn't say in LULAC that the fundamental right was

74"absentee voting." See LULAC, 950 N.W.2d at 209. The right was voting, and thequestion was whether the legislation improperly entrenched on that right. Seeid. In Meyer v. Nebraska, a seminal substantive due process case, the UnitedStates Supreme Court didn't start by asking whether there was a fundamentalright to be taught German in school. 262 U.S. 390, 399–400 (1923). Rather, theCourt observed, that substantive due processdenotes not merely freedom from bodily restraint but also the rightof the individual to contract, to engage in any of the commonoccupations of life, to acquire useful knowledge, to marry, establisha home and bring up children, to worship God according to thedictates of his own conscience, and generally to enjoy thoseprivileges long recognized at common law as essential to the orderlypursuit of happiness by free men.Id. at 399. It then asked whether a state law that forbids teaching of modernforeign languages before the eighth grade wrongfully intruded on that generalright and concluded that it did. Id. at 400-03; see also Pierce v. Soc'y of Sisters,268 U.S. 510, 530, 534–35 (1925) (finding that a law requiring children to attendpublic schools “unreasonably interfere[d] with the liberty of parents andguardians to direct the upbringing and education of children under theircontrol"). So too here, we need to ask whether a woman has a fundamental rightof personal autonomy over her body as part of the “life” and “liberty” protectedby article I, section 9. I think that answer is clearly yes. We then should askwhether a law practically banning abortion is an improper invasion of thatright—notwithstanding the State's undeniable interest in promoting andpreserving human life.5252 Dobbs v. Jackson Women's Health Organization says that abortion is “fundamentallydifferent” from the other rights because an abortion ends a potential human life. 597 U.S. 215,231 (2022). This observation tells me that there is a powerful governmental interest on the otherside, but it doesn't mean there is no right in the first place. By analogy, we allow parental rightsto be terminated when the health and well-being of a child are threatened; yet that doesn't alterthe reality that parents have a fundamental right to raise their own children. See, e.g., In re A.M.,

75Second, to the extent the majority invokes the democratic process andtoday's political actors, it bears noting that the legislature has decided not tofinish the democratic process that it started. To date, the 90th General Assemblyhas not submitted for a popular vote the abortion-related constitutionalamendment that the 89th General Assembly approved. See 2021 Iowa Actsch. 187, § 2. That amendment would add a new section to article I of the IowaConstitution, stating,Id.Sec. 26. Life. To defend the dignity of all human life andprotect unborn children from efforts to expand abortion even to thepoint of birth, we the people of the State of Iowa declare that thisConstitution does not recognize, grant, or secure a right to abortionor require the public funding of abortion.This hesitation to go to the people suggests that there may be two differentforms of consensus: one in the legislature and another in the privately held viewsof Iowans on this intensely personal matter.Along the same lines, it is also worth noting that Iowa's abortion laws havenever targeted the person who has an abortion, only the abortion provider.Existing Iowa law does not prohibit a pregnant woman from performing amedication abortion herself. This approach seems to be unique in our law. Whereelse do we punish the aider-and-abetter but not the person they aid and abet?This tells me that, in the end, all of us—even those who supported the enactmentof chapter 146E—may feel uncomfortable about blaming a woman who has hadan abortion. To put it another way, even abortion opponents seem to recognizethat there is a zone of personal autonomy that the state should leave alone—orat least not regulate directly.843 N.W.2d 100, 112–13 (Iowa 2014). So, I disagree with Dobbs's effort to separate the abortiondecision from all other decisions made by a woman over her own body.

76Moreover, in such a deeply private matter, I suspect none of us-particularly if we are men—know the truth. “Only a Woman, divine, could knowall that a woman can suffer.” Willa Cather, Death Comes for the Archbishop 173(Virago Press 1981) (1927). I am certain that many women who are close friendsand relatives of mine have made a personal decision to have an abortion duringtheir lifetime, while I remain ignorant of that fact.IV. The Fundamental Right to Bodily Autonomy Embraces theDecision to End a Pregnancy; State Laws and Regulations That Deny aReasonable Opportunity to Make that Decision Are Invalid.I believe the right of autonomy over one's body includes a limited butrealistic opportunity to end a pregnancy. Thus, I continue to disagree with mycolleagues in 2018 who found a wide-ranging fundamental right to an abortionwith no endpoint other than birth. See PPH 2018, 915 N.W.2d at 249 (Mansfield,J., dissenting). But I also differ with today's majority that finds no right toterminate a pregnancy at all. I agree with Chief Justice Roberts's opinionconcurring in the judgment in Dobbs v. Jackson Women's Health Organization,where he reasoned that the underlying logic of Roe does not require the woman'sright to terminate a pregnancy to extend until viability, that the viability ruledoes not take into account other human concerns such as the prevention of fetalpain, and that a rule allowing abortions up until the sixteenth week wouldprovide a reasonable opportunity to make a decision to end a pregnancy.597 U.S. 215, 351-52, 356 (2022) (Roberts, C.J., concurring in the judgment).As he stated, “[T]here is nothing inherent in the right to choose that requires itto extend to viability or any other point, so long as a real choice is provided.” Id.at 354.Therefore, I would evaluate state regulations and restrictions on abortionsbefore the sixteenth week using intermediate scrutiny and the Casey undue

77burden standard. See Planned Parenthood of Se. Pa., 505 U.S. at 877–78. Thismeans that the state could not selectively ban telemedicine for abortions whileallowing it for all other medical procedures. Planned Parenthood of the Heartland,Inc. v. Iowa Bd. of Med. (PPH 2015), 865 N.W.2d 252, 269 (Iowa 2015). Butreasonable waiting periods of twenty-four or perhaps even seventy-two hourscould be upheld if they are part of a good-faith effort to ensure a fully informeddecision. PPH 2018, 915 N.W.2d at 250 (Mansfield, J., dissenting). After thefifteenth week, the State could ban abortion in the absence of a specialcirc*mstance.My colleagues in the majority echo the Dobbs majority in criticizing theundue burden standard as unworkable, but I think they are on the wrong sideof that debate. The undue burden standard requires us to "weigh the extent ofthe burden against the strength of the state's justification in the context of eachindividual statute or regulation.” PPH 2015, 865 N.W.2d at 264 (quoting PlannedParenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014), abrogatedby Dobbs, 597 U.S. 215). We did not have difficulty applying that standard totelemedicine, unanimously, in 2015. As I explained in my 2018 dissent, prior toDobbs, the undue burden test had resulted in a fairly consistent and predictablejurisprudence on waiting periods. See PPH 2018, 915 N.W.2d at 250–52.True, as new restrictions on abortion emerged, it became necessary tolitigate them under Casey. But this occurred largely because states hadrepeatedly and intentionally tested Casey's boundaries in ingenious ways. Wouldwe say that Brown v. Board of Education, 348 U.S. 886 (1954), was unworkablebecause some states repeatedly tested its boundaries after 1954?Conceptually, the undue burden test—like the Anderson-Burdick test inelection law cases-allows courts to make “hard judgments," giving deferencewhere appropriate to legislative judgment while prohibiting out-and-out

78obstruction of the right. 53 As the majority states, “Intermediate scrutiny forelection laws. . . allows courts to balance competing constitutionalrequirements of ensuring fair and orderly elections against the right to vote." Noone on our court suggests the Anderson-Burdick test is unworkable for theelection cases we have seen repeatedly in recent years; rather, we have adoptedit under the Iowa Constitution. See Democratic Senatorial Campaign Comm.,950 N.W.2d at 6–7. If a form of intermediate scrutiny that balances the weightof different interests is workable in the context of voting, what makes it sounworkable when applied to abortion?More to the point, workability isn't just a question of how much “work”judges have to do when they apply a legal rule. We consider the practical effectsof the rule on society as a whole. For example, in Burnett v. Smith, we decided tooverrule Godfrey v. State, 962 N.W.2d 84 (Iowa 2021), a case that recognized adirect cause of action for damages under the Iowa Constitution. 990 N.W.2d 289,307 (Iowa 2023). We noted that Godfrey was legally wrong and had complicatedour jurisprudence. Id. at 298, 304. We found that it had also become a vehiclefor asserting either meritless claims of constitutional violation in otherwisenonconstitutional cases or duplicative claims of state constitutional violation incases where claims under 42 U.S.C. § 1983 were already available. Id. at 301-03.53 See Anderson v. Celebrezze, 460 U.S. 780, 789–90 (1983) (“Only after weighing all thesefactors is the reviewing court in a position to decide whether the challenged provision isunconstitutional. The results of this evaluation will not be automatic; as we have recognized,there is 'no substitute for the hard judgments that must be made.'” (citations omitted) (quotingStorer v. Brown, 415 U.S. 724, 730 (1974))); see also Burdick v. Takushi, 504 U.S. 428, 434 (1992)(“[A] more flexible standard applies. A court considering a challenge to a state election law mustweigh ‘the character and magnitude of the asserted injury to the rights protected by the Firstand Fourteenth Amendments that the plaintiff seeks to vindicate' against 'the precise interestsput forward by the State as justifications for the burden imposed by its rule,' taking intoconsideration ‘the extent to which those interests make it necessary to burden the plaintiff'srights.'" (quoting Anderson, 460 U.S. at 789)).

7079A rational basis standard governing abortion may not be difficult for Iowajudges to administer, but we need to examine its broader effects. Under themajority's new legal framework, we now ask only if an abortion restriction isrationally related to a legitimate state interest. Realistically, rational basis reviewmeans that practically any ban or restriction on abortion will be upheld.Supposedly, Racing Ass'n of Central Iowa v. Fitzgerald (RACI), 675 N.W.2d 1(Iowa 2004), changed the law so that Iowa now follows a rational basis test “withteeth.” See, e.g., AFSCME Iowa Council 61 v. State, 928 N.W.2d 21, 35(Iowa 2019). But those teeth have had no bite; by my count, we have decidedapproximately forty rational basis cases since RACI, and we have never sustaineda rational basis challenge to a law or regulation. 54 Today's case makes thatforty-one.Chapter 146E will severely restrict abortions in Iowa. In most instances,unless costs are too much of a barrier, the woman living in Iowa who wishes toend a pregnancy will get an abortion by heading to Illinois, Minnesota, Nebraska,or Wisconsin. To that extent, things won't change. But the availability ofhealthcare will change. Medical students and practicing ob-gyns will elect not tocome here in the first place, or they may pick up and leave. One-third of Iowacounties are already classified as “maternity care deserts." See March of Dimes,Where You Live Matters: Maternity Care in Iowa 1 (2023),https://www.marchofdimes.org/peristats/assets/s3/reports/mcd/Maternity-Care-Report-Iowa.pdf [https://perma.cc/2DL4-GDXB]. This will get worse.54 See Behm, 922 N.W.2d at 578 (Waterman, J., concurring) (“RACI II, as a practicalmatter, has been limited to its facts. We have never relied on RACI II to strike down anothermunicipal or state legislative enactment.”).

80V. Iowa Code Chapter 146E Denies a Woman an Opportunity to Makea Decision Not to Have the Child and Is Therefore Unconstitutional.In my view, the near-universal ban on abortions after the sixth week inIowa Code chapter 146E directly and substantially interferes with the woman'sfundamental right not to procreate. At the sixth week, a woman may not evenknow she is pregnant and has almost certainly not sought medical care for herpregnancy. The six-week mark does not allow enough time for a woman to makea decision whether or not to carry a pregnancy to term. The adoption of thistiming is not accidental: Iowa Code chapter 146E is designed to end, and willend, most abortions in Iowa. Therefore, the law is an undue burden on a woman'sconstitutional right to exercise autonomy over what happens within her bodyand to decide whether or not to have a child.Life is messy. There are pregnancies that result from failed birth control,from intoxication, from pressure to have sex that doesn't legally amount to rape,from false promises by the father-to-be, from a youth's lack of impulse control,and so on. These are just a few examples. Many of these situations would not beconsidered “voluntary” under our law. See, e.g., State v. Ortiz, 766 N.W.2d 244,251 (Iowa 2009) (defining “voluntary" as “the product of... free and deliberatechoice rather than intimidation, coercion, or deception"); State v. Garcia,756 N.W.2d 216, 220 (Iowa 2008) (equating “voluntary” with “freely made,uncoerced, reasoned, and informed”). So, the net effect of the six-week ban isthat it forbids many women from ever making a truly voluntary decision to havechildren or not. That is unacceptable to me.Again, I acknowledge the deep sincerity and goodwill of all who supportchapter 146E. They believe that life begins at conception and that any abortionis the killing of a human being. But I can't help thinking that if the argumentsagainst abortion were as powerful as the supporters of chapter 146E think they

81are, they would persuade any woman who becomes pregnant. Coercive lawswould not be needed. Indeed, I find it somewhat ironic that after initially enactinglaws intended to allow a pregnant woman to make a more considered decision,see 2017 Iowa Acts ch. 108, § 1 (codified at Iowa Code § 146A.1 (2018))(mandating waiting periods and the provision of information); 2020 Iowa Acts ch.1110, § 2 (codified at Iowa Code § 146A.1 (2021)) (same), the legislature now hasdetermined that—as a practical matter—she shouldn't be able to make a decisionat all.In the end, the question in this case is whether a woman has aconstitutional right of autonomy over her body as part of the due processguarantee of liberty. If she does, and I believe she does, then a law that takesaway any realistic opportunity to decide not to carry a pregnancy to term violatesarticle I, section 9. Because Iowa Code chapter 146E is unconstitutional, I wouldaffirm the temporary injunction enjoining it from taking effect.For the foregoing reasons, I respectfully dissent.Christensen, C.J., and Waterman, J., join this dissent.