An evenly divided Supreme Court affirms “fetal heartbeat law” injunction by operation of law, trades barbs on matters of jurisprudence and appellate procedure

June 16, 2023

By: Matthew A. McGuire

In a 3-3 decision, the Iowa Supreme Court affirmed a district court ruling refusing to dissolve a 2019 injunction against enforcement of a law known as the “fetal heartbeat law,” which would prohibit most abortions after about six weeks of pregnancy. Though the lack of a majority means that no written opinion carries the force of law, justices representing each side of the 3-3 split filed opinions explaining their rationale. Through these separate opinions, the justices employed uncommonly harsh rhetoric criticizing their colleagues.


The disputes, however, did not largely concern hot-button political issues relating to constitutional protections for abortion. Rather, the justices debated more esoteric jurisprudential questions regarding the legal status of a duly elected statute that has been declared unconstitutional, when appellate courts should review disputes under the writ of certiorari procedural device, and even the propriety of drafting separate opinions in a case where the Supreme Court has no controlling majority opinion.


This appeal concerns a 2018 statute enacted by the Iowa Legislature at Iowa Code chapter 146C, also referred to as the “fetal heartbeat law.” This statute, with some exceptions, prohibits a physician from performing an abortion when there is detectable cardiac activity within the gestational sac upon ultrasound. This statute was immediately challenged in court as violating the Iowa Constitution. Also in 2018, shortly after the “fetal heartbeat law” was enacted, the Iowa Supreme Court ruled in a different case involving a different abortion restriction—referred to as PPH II—that the Iowa Constitution protected a fundamental right to abortion, and that laws regulating abortion must pass strict scrutiny. Following the ruling in PPH II, the Iowa District Court for Polk County issued a ruling in 2019 declaring the “fetal heartbeat law” to be unconstitutional and permanently enjoining its enforcement. The State did not appeal that ruling.


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