DES MOINES, Iowa — Local Investigative & Political Reporter Mary Sugden talked with Sally Frank, an abortion law expert and law professor at Drake University, about what the opinion means for Iowans.
This interview was conducted on June 17. Both questions and responses have been edited for length and clarity.
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Q: I want to start with a question that I'm sure is on a lot of Iowans' minds: how does this opinion, if at all, impact Iowans' access to abortion today?
A: It is questionable whether the 24-hour waiting period is in place or not. Other than that, it doesn't affect our rights today. What it does is leave open the ability of the legislature and governor to pass a statute to ban abortion in the coming weeks, especially if the Supreme Court decision is overturned.
Q: This is a lengthy opinion, it's 182 pages. For those of us who are not lawyers, can you walk us through what's at issue here? What do the majority of justices take issue with in that 2018 opinion that ultimately led to them reversing it today?
A: The 2018 opinion said there was a right to abortion in the Iowa Constitution under both the clause that says you can't deprive someone liberty without due process of law and the clause involving equality. The basis of that in both decisions was an acknowledgment that women can't be fully free in our society if they are forced to carry pregnancies and what women need to be able to fully participate, to have liberty, to be equal is to be able to control when, where and if to have children. Taking that right away from women takes away their liberty and takes away their equality. The majority plurality opinion today rejects all of that reasoning and minimizes the equality issue to try to claim that what we're saying is that women can't have children and be free, which is not what the earlier opinion said at all. Basically, they said the only way you decide if something is a liberty interest is if it's historically protected. Abortion was banned in the 1800s, at least post-quickening abortions. The question really is, is it abortion itself or is bodily integrity what the issue is? If bodily integrity is what the issue is, that is long recognized and supported in our nation's history.
Q: Do you foresee a challenge to this? What, if anything, could those on the other side of this issue do in response to challenge what happened today?
A: Well, I don't think there's going to be much relief from the courts, with the federal court or this court, in these opinions. I think where the action will is be on the streets. The legislature and the voting booth and the organizing are the better, more likely ways of overturning this or changing this. The court is saying it will review abortion regulations either under the undue burden test, which came from Planned Parenthood v. Casey in 1992 and said that regulations are okay unless they prove such a burden that a woman basically can't get an abortion, or the rational basis test, which asks 'Is there any rationale that could support this law, even if it's not the rationale the legislation should?'. I think they're also really sending it down to wait for the US Supreme Court's ruling that's expected in the next few weeks that we all believe is going to overturn Casey, at least if the draft opinion that was leaked is anywhere near the final decision.
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Q: We're seeing a court today reexamine an opinion made just four years ago. Is this a common practice in the high courts, or does this rank more unusual for this window of time to be small?
A: It's unusual. Certainly, courts overturn earlier opinions. Some of our great civil rights cases involve that, such as Brown v. Board from 1954 overturning Plessy v. Ferguson from the 1890s. Laws criminalizing consensual sodomy were upheld in 1986 and rehearsed and overturned in 2004, but usually, things have happened in between. The laws on the ground have changed. The facts on the ground have changed. The only thing that has changed in the Iowa Supreme Court is who's on the court. That leaves the court open to some people viewing the decisions not as what the law requires, but what just the majority of the court can pass. It's not about constitutional law, it's about the views of the justices.
Q: Is there any potential for this decision to set any type of precedent, whether that's before a high court or a lower court, for issues even outside of abortion?
A: Well, it's reiterating a position several the justices have taken that you interpret the laws and the Constitution as understood at the time they were written and give no room for how we've now viewed things differently. It's sometimes called the Living Constitution versus the so-called Original Intent. I wonder if it's really original intent. Other things that have rights, that have been recognized, could be at stake. Then again, in Mansfield's opinion, he mentions that the marriage equality case is so well respected now and it's probably not at risk. This court is not quite as right-wing as the U.S. Supreme Court, where a large body of law could be overturned based on Justice Alito's draft, but the Governor did take steps to rest the majority of the judicial appointing committee. I'm not questioning the merits and the qualifications of any justice on the Iowa Supreme Court, but it leaves it open for more political manipulation.
Q: What would take for abortion to become illegal in Iowa, especially with the upcoming Roe v. Wade decision?
A: It couldn't be banned until the Mississippi case is decided by the Supreme Court. At that point, I expect the governor will call a special session and Iowa will become like Tennessee, Oklahoma and Texas with a total ban, putting women's lives at risk. That's an important thing to recognize — when you ban abortion, you don’t stop abortion. Women will get an abortion either way. Some will be helped out of state where it's safe and legal, while other people will self-abort with the risks accompanying it. Depending on whether they make a criminal statute for the woman herself, you'll start seeing miscarriages investigated by prosecutors to see whether it was really a miscarriage or an abortion. Women who have miscarriages will end up in prison.
Q: Today's opinion impacts that district court decision in 2020. What do you anticipate that could look like?
A: Usually the court puts out a precipe, which is a final order that says 'This is the order, go ahead and do what you need to do,' about three weeks after an opinion comes out. Then the court will schedule a hearing, so it will take a bit of time. I think by the time that happens, the U.S. Supreme Court will have ruled, and the governor will probably get an abortion ban passed.
Q: That's all I have for today. Is there anything else you think Iowans should take away from this?
A: This is one of the first bombs falling, and we have to react. We can't just be complacent. We're being told that we don't have our rights. These laws passed around the country and around Iowa are going to severely impact many women and the men who love them. So we've got to be involved and do what we can. We have to realize that, essentially, abortion is on the ballot in 2022.