1
IN THE IOWA DISTRICT COURT FOR POLK COUNTY
PLANNED PARENTHOOD
OF THE HEARTLAND, INC.,
EMMA GOLDMAN CLINIC
and JILL MEADOWS, M.D.,
Petitioners,
v.
KIM REYNOLDS ex rel.
STATE OF IOWA, and IOWA
BOARD OF MEDICINE,
Respondents.
No. EQCE 83074
MOTION TO DISSOLVE
PERMANENT INJUNCTION
ISSUED JANUARY 22, 2019
ORAL ARGUMENT
REQUESTED
Respondents, Kim Reynolds ex rel. State of Iowa and Iowa
Board of Medicine, through counsel, respectfully move this Court
for an order dissolving the permanent injunction issued by it on
January 22, 2019, because there has been a substantial change in
the law, as explained in Respondents’ accompanying brief in
support of this motion to dissolve.
WHEREFORE, Respondents pray the Court will issue an
order dissolving its January 22, 2019 injunction.
Respectfully submitted this 11th day of August, 2022.
s/ Alan R. Ostergren
Alan R. Ostergren
PIN AT0005950
THE KIRKWOOD INSTITUTE, INC.
500 Locust Street, Suite 199
2
Des Moines, IA 50309
(515) 207-0134
alan.ostergren@kirkwoodinstitute.org
Christopher P. Schandevel*
ALLIANCE DEFENDING FREEDOM
44180 Riverside Parkway
Lansdowne, VA 20176
(571) 707-4655
cschandevel@adflegal.org
Denise M. Harle*
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE,
Suite D1100
Lawrenceville, GA 30043
(770) 339-0774
*PHV applications pending
Counsel for Respondents
1
IN THE IOWA DISTRICT COURT FOR POLK COUNTY
PLANNED PARENTHOOD
OF THE HEARTLAND, INC.,
EMMA GOLDMAN CLINIC
and JILL MEADOWS, M.D.,
Petitioners,
v.
KIM REYNOLDS ex rel.
STATE OF IOWA, and IOWA
BOARD OF MEDICINE,
Respondents.
No. EQCE 83074
BRIEF IN SUPPORT OF
RESPONDENTS’ MOTION
TO DISSOLVE PERMANENT
INJUNCTION ISSUED
JANUARY 22, 2019
ORAL ARGUMENT
REQUESTED
2
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................. 2
TABLE OF AUTHORITIES ............................................................ 3
INTRODUCTION ............................................................................ 6
BACKGROUND ............................................................................... 8
ARGUMENT .................................................................................. 13
I. Now that PPH II, Roe, and Casey have been overruled,
this Court should dissolve the injunction preventing
enforcement of Iowa’s fetal heartbeat law. .......................... 13
A. After PPH IV and Dobbs, this Court’s previous
treatment of abortion as a fundamental right is
founded on superseded law. ........................................ 15
B. After PPH IV and Dobbs, this Court’s application
of strict scrutiny is founded on superseded law. ......... 17
1. Because abortion is not a fundamental right,
rational-basis review applies.............................. 18
2. Iowa’s fetal heartbeat law rationally
advances the state’s interest in protecting
unborn life. .......................................................... 23
C. After PPH IV and Dobbs, this Court’s reliance on
the viability line is founded on superseded law. ......... 25
II. In the alternative, the Court should at least dissolve
the injunction pending further factual development. .......... 27
CONCLUSION............................................................................... 29
3
TABLE OF AUTHORITIES
Cases
Agostini v. Felton,
521 U.S. 203 (1997) ............................................................ 13, 14
American Horse Protection Association v. Watt,
694 F.2d 1310 (D.C. Cir. 1982) .................................. 7, 14, 16, 27
Bear v. Iowa District Court of Tama County,
540 N.W.2d 439 (Iowa 1995) .......................................... 7, 13, 27
Beidenkopf v. Des Moines Life Insurance Co.,
142 N.W. 434 (Iowa 1913) ........................................................ 28
Dobbs v. Jackson Women’s Health Organization,
142 S. Ct. 2228 (2022) ....................................................... passim
Heller v. Doe,
509 U.S. 312 (1993) .................................................................. 19
Helmkamp v. Clark Ready Mix Co.,
249 N.W.2d 655 (Iowa 1977) .................................................... 13
Horne v. Flores,
557 U.S. 433 (2009) .................................................................. 14
Iowa State Department of Health v. Hertko,
282 N.W.2d 744 (Iowa 1979) .......................................... 8, 28, 29
Jacobson v. County of Goodhue,
539 N.W.2d 623 (Minn. Ct. App. 1995) .................................... 13
Kent Products v. Hoeph,
61 N.W.2d 711 (Iowa 1953) ...................................................... 28
King v. State,
818 N.W.2d 1 (Iowa 2012) ............................................ 20, 21, 23
Planned Parenthood Arizona, Inc. v. Humble,
753 F.3d 905 (9th Cir. 2014) .................................................... 23
4
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992) ........................................................ 6, 10, 22
Planned Parenthood of the Heartland v. Reynolds, ex rel. State,
915 N.W.2d 206 (Iowa 2018) .......................................6, 9, 11, 20
Planned Parenthood of the Heartland, Inc. v. Iowa Board of
Medicine,
865 N.W.2d 252 (Iowa 2015) .............................................. 22, 23
Planned Parenthood of the Heartland, Inc. v. Reynolds ex rel.
State,
975 N.W.2d 710 (Iowa 2022) ............................................. passim
Railway Labor Executives’ Association v. Metro-North
Commuter Railroad Company,
759 F. Supp. 1019 (S.D.N.Y. 1990) .......................................... 13
Reno v. Flores,
507 U.S. 292 (1993) .................................................................. 24
Roe v. Wade,
410 U.S. 113 (1973) ........................................................ 6, 10, 21
Sanchez v. State,
692 N.W.2d 812 (Iowa 2005) .................................................... 24
SisterSong Women of Color Reproductive Justice Collective
v. Governor of Georgia,
No. 20-13024, 2022 WL 2824904 (11th Cir. July 20,
2022) ............................................................................. 24, 25, 27
State v. Seering,
701 N.W.2d 655 (Iowa 2005) .............................................. 20, 24
Toussaint v. McCarthy,
801 F.2d 1080 (9th Cir. 1986) ................................... 7, 14, 16, 27
United States v. Swift & Co.,
286 U.S. 106 (1932) .................................................................. 13
5
Wood Bros. Thresher Co. v. Eicher,
1 N.W.2d 655 (Iowa 1942) .................................................. 14, 16
Statutes
Iowa Code § 146A.1(6)(a) ................................................................. 6
Iowa Code § 146C.1 .......................................................................... 6
Iowa Code § 146C.2 ...................................................................... 6, 8
Treatises
28 Am.Jur. § 181 ...................................................................... 14, 16
42 Am.Jur.2d Injunctions § 317 (1969) ......................................... 13
42 Am.Jur.2d Injunctions § 318 (1969) ......................................... 13
42 Am.Jur.2d Injunctions § 334 (1969) ......................................... 13
6
INTRODUCTION
In 2019, this Court—compelled by then-existing Iowa and
U.S. Supreme Court precedent—permanently enjoined Iowa’s fetal
heartbeat law, which was enacted to protect innocent, unborn life
by prohibiting elective abortions after the detection of a fetal
heartbeat. Iowa Code § 146C.2. The law contains exceptions for
medical emergencies—including threats to the mother’s life and
“serious risk of substantial and irreversible impairment of a major
bodily function,” Iowa Code §§ 146C.2(2), 146C.1(3), 146A.1(6)(a),
and for other rare circumstances—including rape, incest, and fetal
abnormality, Iowa Code §§ 146C.2(2); 146C.1(4). The law allows
treatment for incomplete miscarriages. Iowa Code § 146C.1(4)(c).
And it only regulates physicians—it does not impose any liability
on women who have an abortion. Iowa Code § 146C.2.
Because it was undisputed that the law prohibited some
previability abortions, this Court in 2019 held that the law
violated “the due process and equal protection provisions of the
Iowa Constitution,” Summ. J. Ruling at 8, as informed by the Iowa
Supreme Court’s “recent decision” in Planned Parenthood of the
Heartland v. Reynolds, ex rel. State, 915 N.W.2d 206 (Iowa 2018)
(PPH II ), and the U.S. Supreme Court’s decisions in Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992), and Roe v. Wade, 410 U.S. 113 (1973).
7
In Iowa as in other jurisdictions, “[t]he court which rendered
[an] injunction may modify or vacate the injunction if, over time,
there has been a substantial change in the facts or law.” Bear v.
Iowa Dist. Ct. of Tama Cnty., 540 N.W.2d 439, 441 (Iowa 1995).
Indeed, “[w]hen a change in the law authorizes what had previ-
ously been forbidden, it is an abuse of discretion for a court to
refuse to modify an injunction founded on superseded law.”
Toussaint v. McCarthy, 801 F.2d 1080, 1090 (9th Cir. 1986)
(quoting Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C.
Cir. 1982)). And this past June, the Iowa Supreme Court over-
ruled PPH II, “reject[ing] the proposition that there is a funda-
mental right to an abortion in Iowa’s Constitution subjecting
abortion regulation to strict scrutiny.” Planned Parenthood of the
Heartland, Inc. v. Reynolds ex rel. State, 975 N.W.2d 710, 715
(Iowa 2022) (PPH IV ), reh’g denied (July 5, 2022). One week later
the U.S. Supreme Court overruled Roe and Casey, reasoning that
the “viability line makes no sense,” and Casey’s “undue burden”
test was “arbitrary” and “unworkable.” Dobbs v. Jackson Women’s
Health Org., 142 S. Ct. 2228, 2261, 2266, 2270, 2275 (2022).
As a result, the permanent injunction this Court previously
issued is now “founded on superseded law.” Toussaint, 801 F.2d at
1090 (quoting Am. Horse, 694 F.2d at 1316). And that change
easily qualifies as “substantial.” Bear, 540 N.W.2d at 441.
8
Following PPH IV and Dobbs, no right to an abortion exists
under the state or federal constitution. Strict scrutiny is no longer
the test. And the viability line is no more. This Court thus has a
duty to vacate its injunction so Iowa can enforce its validly
enacted law. Alternatively, if the Court believes further factual
development is required, the Court should at least lift the injunc-
tion while that development occurs. See Iowa State Dep’t of Health
v. Hertko, 282 N.W.2d 744, 752 (Iowa 1979) (affirming denial of
temporary injunction in case involving “disputed questions of law
about which there was doubt”). Either way, a substantial change
in the law warrants dissolution of the permanent injunction.
BACKGROUND
In the Spring of 2018, the Iowa General Assembly amended
Iowa Code chapter 146C to require physicians to “perform an
abdominal ultrasound” before an abortion “to determine if a fetal
heartbeat is detectable.” Iowa Code § 146C.2(1)(a). The law then
prohibits “an abortion upon a pregnant woman when it has been
determined that the unborn child has a detectable fetal heartbeat,
unless, in the physician’s reasonable medical judgment, a medical
emergency exists, or when the abortion is medically necessary.”
Iowa Code § 146C.2(2)(a).
9
Less than two weeks after Governor Reynolds signed the bill
into law, Petitioners filed a lawsuit in this Court challenging the
law’s constitutionality under the Iowa Constitution.
Then in June 2018, the Iowa Supreme Court issued its
decision in PPH II, holding for the first time that a fundamental
right to abortion exists under the Iowa Constitution, PPH II, 915
N.W.2d at 212, 237, 245–46, and that laws regulating abortion
must satisfy strict scrutiny to survive, id. at 238.
This Court later entered summary judgment for Petitioners,
declaring “Iowa Code chapter 146C . . . unconstitutional” under
the Iowa Constitution and “permanently enjoin[ing]” Respondents
“from implementing, effectuating or enforcing the provisions of
Iowa Code chapter 146C.” Summ. J. Ruling at 8.
1
The Court reached that conclusion because, “[r]egardless of
when precisely . . . a fetal heartbeat may be detected in a given
pregnancy, it [was] undisputed that such cardiac activity is detect-
able well in advance of the fetus becoming viable.” Id. at 3. And
based on PPH II, Roe, and Casey, the Court thought that “viability
[was] not only material to this case, it [was] dispositive.” Id.
1
Although the Court’s order broadly declared “Iowa Code chapter
146C” unconstitutional, Petitioners read the Court’s opinion and
order as only enjoining Code § 146C.2, which is all the relief
Petitioners had requested.
10
“In coming to this conclusion,” the Court cited “the benefit of
the recent decision” in PPH II. Id. In that case, “the Iowa Supreme
Court held that a woman’s right to decide whether to terminate a
pregnancy is a fundamental right under the Iowa Constitution,
and that any governmental limits on that right are to be analyzed
using strict scrutiny.” Id. at 3–4.
From PPH II, this Court moved on to Roe and Casey, noting
first that the “application of a strict scrutiny test” in the abortion
context had been “first taken up in Roe v. Wade.” Summ. J. Ruling
at 4. Roe had “focused on the viability of the fetus,” declaring that
for the state’s “interest in potential life, the ‘compelling’ point
[was] at viability.” Id. (quoting Roe, 410 U.S. at 163). As a result,
the state’s interest in potential life “may only be used to regulate
(even to the point of proscription) postviability abortions.” Id.
That “threshold of viability as a check on the state’s
compelling state interest in promoting potential life” had thus far
“remained intact.” Id. at 5. While in Casey, the U.S. Supreme
Court had “established an ‘undue burden’ standard” for “state
restrictions on previability abortions,” the Casey court had not
“disturb[ed] the central holding of Roe v. Wade that a state may
not prohibit any woman from making the ultimate decision to
terminate her pregnancy before viability.” Id. (quoting Casey, 505
U.S. at 879) (cleaned up).
11
In PPH II, the Iowa Supreme Court had “expressly rejected
the undue burden standard fashioned in Casey and [had] held that
any legislative restrictions on a woman’s fundamental right to
decide to terminate a pregnancy should be measured solely by a
strict scrutiny analysis.” Summ. J. Ruling at 5. But PPH II did not
“expressly address the previability versus postviability dichotomy
from Roe and its progeny.” Id. at 6. Despite that omission, this
Court was “satisfied that such an analysis is inherent in the Iowa
Supreme Court’s adoption of a strict scrutiny test.” Id. And the
Court was “equally satisfied that Iowa Code chapter 146C fail[ed]
in this regard as a prohibition of previability abortions.” Id.
Next, this Court rejected Respondents’ alternative argument
“that Iowa Code chapter 146C does not impose a ban on abortions,
but merely creates a window of opportunity” for women to exercise
“their right to terminate a pregnancy.” Id. at 7. That argument,
the Court thought, was “an attempt to repackage the undue
burden standard rejected by the Iowa Supreme Court in PPH II.”
Id. And as long as abortion remained a “fundamental right,” the
argument was foreclosed because it would have “relegate[d] the
individual rights of Iowa women to something less than
fundamental,” id. (quoting PPH II, 915 N.W.2d at 240), by
requiring “a level of diligence . . . antithetical to the notion of a
fundamental right,” id.
12
“In summary,” this Court concluded it was “undisputed that
the threshold for the restriction upon a woman’s fundamental
right to terminate a pregnancy (the detection of a fetal heartbeat)
. . . constitutes a prohibition of previability abortions.” Summ. J.
Ruling at 7–8. “As such,” the Court held that it violated “the due
process and equal protection provisions of the Iowa Constitution”
because it was not “narrowly tailored to serve the compelling state
interest of promoting potential life.” Id. at 8. “Accordingly,” the
Court granted Petitioners’ motion for summary judgment,
declared the law “unconstitutional and therefore void,” and
granted Petitioners’ request for permanent injunctive relief. Id.
Respondents ultimately chose not to appeal that decision
given that this Court had based its ruling on the Iowa Supreme
Court’s decision in PPH II and on the U.S. Supreme Court’s
earlier decisions in Roe and Casey—all three of which remained
good law in 2019.
Those three cases have since been overruled. PPH IV, 975
N.W.2d at 715–16, 740; Dobbs, 142 S. Ct. at 2246–48, 2283.
Accordingly, Respondents now move this Court to dissolve its
permanent injunction given this substantial change in the
governing law.
13
ARGUMENT
I. Now that PPH II, Roe, and Casey have been overruled,
this Court should dissolve the injunction preventing
enforcement of Iowa’s fetal heartbeat law.
It has long been the law in Iowa that “[t]he court which
rendered [an] injunction may modify or vacate the injunction if,
over time, there has been a substantial change in the facts or law.”
Bear, 540 N.W.2d at 441 (citing Helmkamp v. Clark Ready Mix
Co., 249 N.W.2d 655, 656 (Iowa 1977); 42 Am.Jur.2d Injunctions
§§ 317, 318, 334 (1969)).
2
The federal courts have long applied the same rule. “A
continuing decree of injunction directed to events to come is sub-
ject always to adaptation as events may shape the need.” United
States v. Swift & Co., 286 U.S. 106, 114 (1932). A “court may
recognize subsequent changes in either statutory or decisional
law.” Agostini v. Felton, 521 U.S. 203, 215 (1997). Accord Ry. Lab.
Execs.’ Ass’n v. Metro-N. Commuter R.R. Co., 759 F. Supp. 1019,
1021 (S.D.N.Y. 1990) (collecting cases for the same proposition).
“The party seeking relief bears the burden of establishing
that changed circumstances warrant relief, but once a party car-
ries this burden, a court abuses its discretion ‘when it refuses to
2
That rule controls no matter whether the party subjected to the
injunction chose to appeal. See, e.g., Jacobson v. Cnty. of Goodhue,
539 N.W.2d 623, 625 (Minn. Ct. App. 1995).
14
modify an injunction . . . in light of such changes.’” Horne v. Flores,
557 U.S. 433, 447 (2009) (quoting Agostini, 521 U.S. at 215)
(cleaned up). And especially where, as here, “a change in the law
authorizes what had previously been forbidden, it is an abuse of
discretion for a court to refuse to modify an injunction founded on
superseded law.” Toussaint, 801 F.2d at 1090 (quoting Am. Horse,
694 F.2d at 1316).
3
That rule applies with even greater force in cases enjoining
“the enforcement of statutes.” Wood Bros. Thresher Co. v. Eicher, 1
N.W.2d 655, 659 (Iowa 1942). Courts “will not, except under extra-
ordinary circumstances, interfere with the duties of other depart-
ments of the government.” Id. (quoting 28 Am.Jur. § 181, p. 369).
For that reason, “equity will not ordinarily interfere with the
action of public officers taken under statutory authorization.” Id.
And the Iowa Supreme Court “has repeatedly held that equity will
generally decline to interfere with the administration of valid laws
against crimes or quasi crimes.” Id.
3
Accord, e.g., Pasadena City Bd. of Educ. v. Spangler, 427 U.S.
424, 437–38 (1976) (district court abused its discretion by failing
to modify injunction after change in decisional law); Cal. by &
through Becerra v. U.S. Env’t Prot. Agency, 978 F.3d 708, 713–14
(9th Cir. 2020) (discussing the “unbroken line of Supreme Court
cases [that] makes clear that it is an abuse of discretion to deny a
modification of an injunction after the law underlying the order
changes to permit what was previously forbidden”).
15
A. After PPH IV and Dobbs, this Court’s previous
treatment of abortion as a fundamental right is
founded on superseded law.
This Court unambiguously based its decision to issue a
permanent injunction of Iowa’s fetal heartbeat law on PPH II ’s
holding “that a woman’s right to decide whether to terminate a
pregnancy is a fundamental right under the Iowa Constitution.”
Summ. J. Ruling at 3. This Court also relied on Roe’s holding that
a woman has a “fundamental right to decide to terminate a
pregnancy” under the federal Constitution. Id. at 4. In fact, this
Court described the nature of the right as “fundamental” ten
separate times in its eight-page order, id. at 3, 4, 4 n.8, 5, 6, 7.
In PPH IV, though, the Iowa Supreme Court could find “no
support,” textually or historically, “for abortion as a fundamental
constitutional right in Iowa.” PPH IV, 975 N.W.2d at 740.
Textually, “[i]f liberty cannot be limited without due process of
law, the logical implication is that liberty can be limited with due
process of law.” Id. And historically, “abortion became a crime in
our state on March 15, 1858—just six months after the effective
date of the Iowa Constitution—and remained generally illegal
until Roe v. Wade was decided over one hundred years later.” Id.
at 740. “[A]bortion at any stage of pregnancy [was] criminalized by
statute in Iowa as early as 1843,” refuting any argument that it
could have been considered a fundamental right. Id. at 741.
16
In Dobbs, the U.S. Supreme Court confirmed that the same
is true under the federal constitution. “[P]rocuring an abortion is
not a fundamental constitutional right because such a right has no
basis in the Constitution’s text or in our Nation’s history.” Dobbs,
142 S. Ct. at 2283. “The Constitution makes no reference to
abortion, and no such right is implicitly protected by any
constitutional provision, including . . . the Due Process Clause of
the Fourteenth Amendment.” Id. at 2242. Indeed, “[u]ntil the
latter part of the 20th century, such a right was entirely unknown
in American law.” Id.
Taken together, PPH IV and Dobbs explicitly overruled
PPH II, Roe, and Casey, the foundation for this Court’s previous
opinion. They also explicitly and conclusively overruled the
holdings in those cases that any provision in the state or federal
Constitution protects abortion as a “fundamental right.” PPH IV,
975 N.W.2d at 715–16, 740; Dobbs, 142 S. Ct. at 2246–48, 2283.
Accordingly, this Court’s permanent injunction against Iowa’s
fetal heartbeat law is “founded on superseded law.” Toussaint, 801
F.2d at 1090 (quoting Am. Horse, 694 F.2d at 1316). And this
Court should permanently dissolve it now to avoid any further
interference with “the action of public officers taken under
statutory authorization.” Wood Bros., 1 N.W.2d at 659 (quoting 28
Am.Jur. § 181, p. 369).
17
B. After PPH IV and Dobbs, this Court’s application
of strict scrutiny is founded on superseded law.
This Court just as clearly based its injunction on PPH II ’s
related holding that “any governmental limits on [the abortion]
right are to be analyzed using strict scrutiny.” Summ. J. Ruling at
3–4. And in applying that test, the Court likewise drew support
from Roe’s own “application of a strict scrutiny test.” Id. at 4.
Because the Court concluded that Iowa’s fetal heartbeat law fails
strict scrutiny, meaning it is not “narrowly tailored to serve the
compelling state interest of promoting potential life,” the Court
held that it violated “both the due process and equal protection
provisions of the Iowa Constitution” and thus had to be
permanently enjoined. Id. at 8.
In PPH IV, though, the Iowa Supreme Court “overrule[d]
PPH II, and thus reject[ed] the proposition that there is a funda-
mental right to an abortion in Iowa’s Constitution subjecting
abortion regulation to strict scrutiny.” PPH IV, 975 N.W.2d at 715.
Iowa’s Constitution no longer “necessitate[s] a strict scrutiny
standard of review for regulations affecting [the abortion] right.”
Id. at 716. And as Dobbs made clear one week later, the federal
Constitution does not require strict scrutiny either. Dobbs, 142 S.
Ct. at 2283–84 (applying rational-basis review instead).
18
1. Because abortion is not a fundamental right,
rational-basis review applies.
Despite rejecting strict scrutiny, the PPH IV court did not
decide “what constitutional standard should replace” it. PPH IV,
975 N.W.2d at 715. But in justifying its decision to leave that
question to “be litigated further” on remand and in other cases,
the PPH IV court explained that the upcoming Dobbs decision
“could alter the federal constitutional landscape established by
Roe and Casey.” Id. at 716. Dobbs “could decide whether the undue
burden test continues to govern federal constitutional analysis of
abortion rights.” Id. at 745. And that decision could “impart a
great deal of wisdom” that the PPH IV court did not yet have. Id.
And that is exactly what Dobbs did. Dobbs rejected Casey’s
“ambiguous,” “arbitrary,” and “unworkable” undue-burden test.
Dobbs, 142 S. Ct. at 2266, 2273, 2275. That test had been “plucked
from nowhere.” Id. at 2275 (cleaned up). And “[c]ontinued
adherence to [the undue-burden test] would undermine, not
advance, the evenhanded, predictable, and consistent development
of legal principles.” Id. at 2275 (cleaned up). So Dobbs discarded it,
applying “rational-basis review” instead. Id. at 2283–84. “Under
[U.S. Supreme Court] precedents, rational-basis review is the
appropriate standard for such challenges” because “procuring an
abortion is not a fundamental constitutional right.” Id. at 2283.
19
“It follows that the States may regulate abortion for legiti-
mate reasons, and when such regulations are challenged under
the Constitution, courts cannot substitute their social and
economic beliefs for the judgment of legislative bodies.” Dobbs, 142
S. Ct. at 2283–84 (cleaned up). Under the federal Constitution, a
“law regulating abortion, like other health and welfare laws, is
entitled to a ‘strong presumption of validity.’” Id. at 2284 (quoting
Heller v. Doe, 509 U.S. 312, 319 (1993)). “It must be sustained if
there is a rational basis on which the legislature could have
thought that it would serve legitimate state interests.” Id.
“These legitimate interests include[:]
• respect for and preservation of prenatal life at all
stages of development;
• the protection of maternal health and safety;
• the elimination of particularly gruesome or barbaric
medical procedures;
• the preservation of the integrity of the medical
profession;
• the mitigation of fetal pain; and
• the prevention of discrimination on the basis of race,
sex, or disability.”
Id. These same interests—especially the state’s interests in
“protecting the life of the unborn,” protecting women, prohibiting
“a barbaric practice,” and preserving the medical profession’s
20
integrity—provided a rational basis for the 15-week law
challenged in Dobbs. Id. And it followed that the constitutional
challenge to that law “must fail.” Id.
The same is true under Iowa law. “It is well settled that ‘[i]f
a fundamental right is implicated,” Iowa courts “apply strict
scrutiny.’” PPH II, 915 N.W.2d at 238 (quoting State v. Seering,
701 N.W.2d 655, 662 (Iowa 2005)). And “[i]f a fundamental right is
not implicated, a statute need only survive a rational basis
analysis.” Seering, 701 N.W.2d at 662 (emphasis added). Stated
simply, “[i]f the right at issue is fundamental, strict scrutiny
applies; otherwise, the state only has to satisfy the rational basis
test.” King v. State, 818 N.W.2d 1, 31 (Iowa 2012).
To reiterate what the Iowa Supreme Court held in PPH IV,
“the Iowa Constitution is not the source of a fundamental right to
an abortion.” 975 N.W.2d at 716. As a matter of state constitution-
al text and history, “there is no support for abortion as a funda-
mental constitutional right.” Id. at 740. It necessarily follows that,
since “a fundamental right is not implicated,” laws like Iowa’s
fetal heartbeat law “need only survive a rational basis analysis.”
Seering, 701 N.W.2d at 662. Or as the Iowa Supreme Court put it
in King, because the alleged “right at issue” is not fundamental,
“the state only has to satisfy the rational basis test.” King, 818
N.W.2d at 31.
21
Importantly, that’s true notwithstanding the PPH IV court’s
statement that—for purposes of resolving that case on remand—
“the Casey undue burden test” the Iowa Supreme Court “applied
in PPH I remain[ed] the governing standard.” 975 N.W.2d at 716.
To begin, the PPH IV court made clear that “the legal
standard may also be litigated further” on remand. Id. And it
makes no sense to hold Iowa to any standard higher than rational
basis when no fundamental right is at stake. After all, the U.S.
Supreme Court created (and the Iowa Supreme Court applied) the
undue-burden standard for abortion regulations only after its
(incorrect) holding that there was a constitutional right to take
the life of an unborn child. Now that both courts have correctly
held that no such right exists, it would be incongruous to subject
Iowa laws to the same undue-burden standard.
Moreover, whatever standard applies for other governmental
regulations, it would be wrong to impose any type of heightened
burden when the state’s interest is in protecting innocent, unborn
life. Unlike the “exercise of the rights at issue” in other contexts
that do “not destroy a ‘potential life,’” an abortion “has that effect.”
Dobbs, 142 S. Ct. at 2261 (quoting Roe, 410 U.S. at 154). And even
in Casey, the U.S. Supreme Court recognized that changes the
analysis when the interest the State advances is protecting
unborn life. Casey, 505 U.S. at 878.
22
Go all the way back to PPH I, in which the Iowa Supreme
Court struck down an Iowa Board of Medicine rule “establishing
standards of practice for physicians who prescribe or administer
abortion-inducing drugs.” Planned Parenthood of the Heartland,
Inc. v. Iowa Bd. of Med., 865 N.W.2d 252, 253 (Iowa 2015)
(PPH I ). To support that conclusion, the PPH I court observed
that the U.S. Supreme Court had “applie[d] the undue burden test
differently depending on the state’s interest advanced by a statute
or regulation.” Id. at 263.
“If the state’s interest is to advance fetal life, ‘[a]n undue
burden exists, and therefore a provision of law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability.’” Id.
(quoting Casey, 505 U.S. at 878). “On the other hand, if the state’s
interest is to further the health or interest of a woman seeking to
terminate her pregnancy, ‘[u]nnecessary health regulations that
have the purpose or effect of presenting a substantial obstacle to a
woman seeking an abortion impose an undue burden on the
right.’” Id. at 263–64 (quoting Casey, 505 U.S. at 878).
Because the Board did not pass the rule at issue in PPH I to
“advance the state’s interest in advancing fetal life,” the PPH I
court applied the second version of Casey’s undue-burden test,
which required the court to “weigh the extent of the burden
23
against the strength of the state’s justification” for the restriction.
Id. at 264–65 (quoting Planned Parenthood Ariz., Inc. v. Humble,
753 F.3d 905, 914 (9th Cir. 2014)). Because the rule merely placed
restrictions on abortion to further the state’s interest in maternal
health and was not a prohibition designed to protect unborn life,
the first version of Casey’s undue-burden test did not apply. Id.
Accordingly, while “the Casey undue burden test” that was
actually “applied in PPH I remain[ed] the governing standard” on
remand in PPH IV for reviewing the abortion restriction there,
PPH IV, 975 N.W.2d at 716, that version of Casey’s test is not and
cannot be the test for a prohibition on abortion that “advance[s]
the state’s interest in advancing fetal life,” PPH I, 865 N.W.2d at
264. The Iowa Supreme Court has never said what level of review
applies for laws that prohibit elective abortions after a certain
point in pregnancy like Iowa’s fetal heartbeat law. Thus, because
“the right at issue is [not] fundamental,” the law “only has to
satisfy the rational basis test.” King, 818 N.W.2d at 31.
2. Iowa’s fetal heartbeat law rationally advances
the state’s interest in protecting unborn life.
“Under rational-basis review, the statute need only be
rationally related to a legitimate state interest.” Sanchez v. State,
692 N.W.2d 812, 817–18 (Iowa 2005). Accord Dobbs, 142 S. Ct. at
2284. And that review only requires “a reasonable fit between the
24
government interest and the means utilized to advance that
interest.” Seering, 701 N.W.2d at 662 (cleaned up). Accord Reno v.
Flores, 507 U.S. 292, 305 (1993) (same under federal law).
The reasonable fit here is obvious. Iowa’s fetal heartbeat law
rationally advances the state’s interest in “respect for and
preservation of prenatal life at all stages of development.” Dobbs,
142 S. Ct. at 2284. As the Eleventh Circuit recently held in
vacating a permanent injunction against Georgia’s fetal heartbeat
law, a “prohibition on abortions after detectable human heartbeat
is rational” because “‘[r]espect for and preservation of prenatal life
at all stages of development’ is a legitimate interest.” SisterSong
Women of Color Reprod. Just. Collective v. Governor of Ga., No.
20-13024, 2022 WL 2824904, at *4 (11th Cir. July 20, 2022)
(quoting Dobbs, 142 S. Ct. at 2284).
4
And just like for Georgia’s
fetal heartbeat law, that “legitimate interest” provides a rational
basis for and justifies Iowa’s fetal heartbeat law, too. Id.
Indeed, in SisterSong even “the abortionists concede[d] that
Dobbs doom[ed] their challenge to the Act’s prohibition of
abortions after detectable fetal heartbeat.” Id. at *3. “Because
[their] right-to-abortion claim” and the resulting permanent
4
Accord Order, Planned Parenthood South Atlantic v. Wilson, No.
21-1369 (4th Cir. July 21, 2022) (vacating preliminary injunction
of South Carolina’s fetal heartbeat law post-Dobbs).
25
injunction had been “premised on the Roe/Casey framework,
Dobbs [was] dispositive.” Suppl. Appellees’ Br., SisterSong Women
of Color Reprod. Just. Collective v. Governor of Ga., No. 20-13024
(11th Cir. July 15, 2022), 2022 WL 2901027, at *1.
This Court’s permanent injunction against Iowa’s fetal
heartbeat law was similarly premised on the Roe/Casey
framework. Summ. J. Ruling at 4–6. So, taken together, Dobbs
and PPH IV are equally dispositive of Petitioners’ claim here.
What’s more, by prohibiting elective abortion after detection
of a fetal heartbeat, Iowa’s law also rationally furthers state
interests in prohibiting a barbaric practice, protecting women’s
health and safety, and preserving the medical profession’s
integrity. Dobbs, 142 S. Ct. at 2284. Measured against any of
these interests, the law is constitutional.
C. After PPH IV and Dobbs, this Court’s reliance on
the viability line is founded on superseded law.
Finally, this Court based its decision to issue a permanent
injunction against Iowa’s fetal heartbeat law on the fact that the
law prohibits some previability abortions. “[V]iability is not only
material to this case,” the Court wrote in its summary judgment
order, “it is dispositive on the present record.” Summ. J. Ruling at
3. Indeed, the Court’s eight-page order contains 21 references to
some version of the word. Id. at 3, 3 n.7, 4, 5, 6, 6 n.10, 8.
26
As the Court itself acknowledged, “PPH II did not expressly
address the previability versus postviability dichotomy from Roe
and its progeny.” Summ. J. Ruling at 6. But the Court was still
“satisfied that such an analysis [was] inherent in the Iowa
Supreme Court’s adoption of a strict scrutiny test.” Id. And the
Court was “equally satisfied that Iowa Code chapter 146C fail[ed]
in this regard as a prohibition of previability abortions.” Id.
In PPH IV, though, the Iowa Supreme Court overruled
PPH II ’s adoption of strict scrutiny. PPH IV, 975 N.W.2d at 715–
716. Thus, it can no longer be true that the viability line has any
“inherent” value under Iowa law. Summ. J. Ruling at 6. Moreover,
in Dobbs the U.S. Supreme Court erased the viability line “from
Roe and its progeny,” id., by overruling those cases, Dobbs, 142
S. Ct. at 2242, 2279. Dobbs even singled out the viability line for
express disapproval, saying it “makes no sense” and had never
been “adequately justified.” Dobbs, 142 S. Ct. at 2261, 2270.
Against this backdrop, the viability line can no longer be
read into PPH II ’s strict-scrutiny analysis when both viability and
strict scrutiny no longer control. And the fact that Iowa’s fetal
heartbeat law prohibits some previability abortions is no longer a
reason to enjoin it. The injunction is now “founded on superseded
law.” Toussaint, 801 F.2d at 1090 (quoting Am. Horse, 694 F.2d at
1316). And the Court should dissolve it immediately.
27
II. In the alternative, the Court should at least dissolve
the injunction pending further factual development.
To be clear, this Court can and should dissolve the injunction
permanently right now because no additional factual development
is needed to establish that there has been a “substantial change”
in the law, Bear, 540 N.W.2d at 441, and the Court’s injunction is
now “founded on superseded law,” Toussaint, 801 F.2d at 1090
(quoting Am. Horse, 694 F.2d at 1316). After PPH IV and Dobbs,
laws regulating abortion are subject to rational-basis review, and
Iowa’s fetal heartbeat law easily passes that test. SisterSong, 2022
WL 2824904, at *4.
At a bare minimum, if the Court takes the extraordinary
step of ordering further factual development when all that is
required is a rational basis, the Court still should dissolve the
injunction temporarily while that occurs. In those circumstances,
the injunction would effectively be serving as a temporary
injunction. And the Iowa Supreme Court has made clear that a
temporary “injunction will not issue where the right of the
complainant, which it is designed to protect, depends upon a
disputed question of law about which there may be doubt, which
has not been settled by the * * * law of this state.” Hertko, 282
N.W.2d at 751 (quoting Kent Products v. Hoeph, 61 N.W.2d 711,
714–15 (Iowa 1953)).
28
That’s because a temporary injunction “is to a great extent a
preventive remedy.” Beidenkopf v. Des Moines Life Ins. Co., 142
N.W. 434, 437 (Iowa 1913). So in cases “where the parties are in
dispute concerning their legal rights,” a temporary injunction “will
not ordinarily be granted until the right is established, especially
if the legal or equitable claims asserted raise questions of a
doubtful or unsettled character.” Id.
In Hertko, the Iowa Supreme Court held the district court
had properly denied a request for a temporary injunction because
the case “involved a disputed question of law as well as a disputed
question of ultimate fact.” 282 N.W.2d at 751. “The question of law
to be resolved was the meaning” of a specific code section. Id. And
the “question of ultimate fact involved the application” of that code
section, “once defined, to the facts of [the] case.” Id.
If the Court disagrees with Respondents’ position that no
additional facts are required because rational basis applies, this
case still would “involve[ ] a disputed question of law,” namely
what standard applies to laws regulating abortion, “as well as a
disputed question of ultimate fact,” namely the application of that
standard, “once defined, to the facts of [the] case.” Id. So even
under those circumstances it would be “proper for [this Court] in
its discretion” to dissolve the injunction temporarily until the
Court rules on the motion to dissolve it permanently. Id. at 752.
29
CONCLUSION
The Iowa Supreme Court’s decision in PPH IV and the
United States Supreme Court’s decision in Dobbs mean that this
Court’s January 22, 2019 permanent injunction is founded on
superseded law. Accordingly, this Court should dissolve and
dismiss that injunction immediately. At a bare minimum, the
Court should dissolve the injunction temporarily while the parties
litigate the motion to dissolve it permanently.
Respectfully submitted this 11th day of August, 2022.
s/ Alan R. Ostergren
Alan R. Ostergren
PIN AT0005950
THE KIRKWOOD INSTITUTE, INC.
500 Locust Street, Suite 199
Des Moines, IA 50309
(515) 207-0134
alan.ostergren@kirkwoodinstitute.org
Christopher P. Schandevel*
ALLIANCE DEFENDING FREEDOM
44180 Riverside Parkway
Lansdowne, VA 20176
(571) 707-4655
cschandevel@adflegal.org
*PHV applications Denise M. Harle*
pending ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE,
Suite D1100
Lawrenceville, GA 30043
(770) 339-0774
Counsel for Respondents
