72-Hour Waiting Period Before Abortion Ruled Unconstitutional by Iowa Supreme Court

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By Gavi Greenspan, CNSNews, July 5, 2018

(CNSNews.com) – Although Iowa’s state constitution prohibited abortion for more than a century until 1973’s federal Roe v. Wade ruling, a majority of judges (5-2) on the Iowa supreme court ruled on June 29 that a 72-hour waiting period prior to an abortion is unconstitutional.

The 72-hour waiting period was signed into law in May 2017 by then-Iowa Gov. Terry Branstad, a Republican.

In his ruling on the case, Iowa Chief Justice Mark Cady, joined by four other justices, said, “Laws that diminish women’s control over their reproductive futures can have profound consequences for women. Some women embrace them and never look back. Others, however, do look back and see a trajectory in life different from men.”

Iowa Supreme Court Chief Justice Mark Cady.

“Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity,” wrote Cady.

“Societal advancements in occupational opportunities are meaningless if women cannot access them,” he said. “Policies that make education more affordable are meaningless if women are kept out of reach. Equality and liberty in this instance, as in so many others, are irretrievably connected.”

Judge Cady continued, “When a state action infringes upon a fundamental right, the guarantee of equal protection of the law requires the state to demonstrate the action is narrowly tailored to serve a compelling government interest. …  As discussed, we conclude the Act cannot satisfy strict scrutiny. Thus, we hold the ‘seventy-two hour’ waiting requirement of Division I of Senate File 471 violates the right to equal protection under the Iowa Constitution.”

However, in his dissent, which was joined by Judge Thomas Waterman, Judge Edward Mansfield said, “Unfortunately, the majority opinion lacks this sense of balance and perspective. Forgoing accepted methods of constitutional interpretation, the opinion instead relies at times on an undertone of moral criticism toward abortion opponents.”

A baby killed by saline-abortion. (Priests for Life.)

“From reading the majority opinion, one would barely know that abortion—with few exceptions—was continuously illegal in Iowa from the time our constitution was adopted until the United Supreme Court overrode our law by deciding Roe v. Wade,” said Judge Mansfield.

“From reading the majority opinion, one would scarcely be aware that many women in Iowa are prolife and strongly support the same law the court concludes unconstitutionally discriminates against them,” he wrote.

Judge Mansfield continued, “After considering the text, original meaning, and subsequent interpretation of the constitutional provisions at issue, the record in this case, the district court’s carefully written decision, and abortion cases from around the country, I conclude that the waiting period in Senate File 471 does not violate either article I, section 9 or article I, section 6 of the Iowa Constitution.”

The decision was celebrated by pro-abortion activists. In a press release on the ACLU Iowa’s website, the CEO of Planned Parenthood of the Heartland, Suzanna deBaca, stated: “We are elated the Court blocked Gov. Reynolds’ egregious anti-woman agenda of making safe, legal abortion harder to access. No matter what she or her allies in the Legislature throw at us, Planned Parenthood will continue to stand up for Iowa women. We will do all we can to make sure everyone who needs an abortion continues to have access to safe, legal health care – no matter what.”


Rita Bettis, Legal Director of ACLU Iowa, said, “This is the most important constitutional rights case in Iowa since Varnum. It recognizes that women have equal footing to men under our laws. It holds that women have a fundamental right to a safe and legal abortion which cannot be legislated away.”

“This is a very important, happy day for women’s freedom and equality in Iowa,” said Bettis. “The court based its decision on its recognition that women’s equality and freedom is intrinsically tied to her ability to make her own decisions about her body and whether to become a parent.”

Bettis further explained that since the decision was based on the Iowa constitution rather than the U.S. Constitution, no appeal is possible and even if Roe v. Wade were to be overturned, a constitutional right to abortion would still stand in Iowa.

She explained “because this decision is rooted in the Iowa Constitution, the Iowa Supreme Court is the final word on the matter. The decision is not subject to appeal to the federal courts.”

Pro-life advocates, however, decried the decision.

Chuck Hurley, vice president and chief legal counsel of the Family Leader, said, “It’s shocking that the Iowa Supreme Court could read the Iowa Constitution, which lists the right to life as our first and most important right (in Article 1, Section 1), and then imagine a right to kill babies in the same document. Because that child in her mother’s womb … she’s a baby. And as even Roe v. Wade admitted, if the baby were recognized as a person, then her ‘right to life would be guaranteed’ and should take precedence over an imagined right to abortion.”