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Lawyer for Reynolds tells court 'fetal heartbeat' abortion ban should be reinstated

Stephen Matthew Milligan
Wikimedia Commons

A lawyer for Gov. Kim Reynolds argued in court Friday that a Polk County District Court judge should reinstate Iowa’s “fetal heartbeat” law that was passed in 2018 because the U.S. Supreme Court and Iowa Supreme Court overturned abortion rightsprotections earlier this year.

The law would ban abortions after cardiac activity is detected, as early as six weeks after a pregnant person’s last period, with exceptions.

The Polk County District Court permanently blocked the “fetal heartbeat” law from being enforced in 2019 and declared it unconstitutional.

ACLU of Iowa Legal Director Rita Bettis Austen said there is no legal basis in Iowa for reopening a case that was closed in 2019. She said even if that were possible, the Iowa Supreme Court kept the undue burden standard in place for evaluating abortion restrictions.

“So the abortion ban, which was unconstitutional when it was passed, remains unconstitutional today,” Bettis Austen said.

Chris Schandevel with Alliance Defending Freedom disagreed. He got involved in the case after Iowa Attorney General Tom Miller, a Democrat, refused to defend the law in court.

Schandevel said the Polk County District Court has the authority and duty to let the abortion ban take effect because the U.S. Supreme Court and Iowa Supreme Court recently found that previous decisions protecting abortion rights were wrong.

“This law did not violate the Constitution at the time that it was passed,” Schandevel said. “It only violated an improper understanding of the Iowa Constitution…and the U.S. Constitution. Those errors have been corrected. It’s clear now that this law is constitutional.”

Schandevel said the Iowa Supreme Court ruling that ended a fundamental right to abortion in the state indicates Judge Celene Gogerty should use the rational basis test, the lowest standard of judicial review, to evaluate the abortion ban and declare it constitutional.

But Bettis Austen, also arguing on behalf of Planned Parenthood, said the Iowa Supreme Court intended for the undue burden test to remain until the courts could revisit the issue in the future.

She said state lawmakers can pass a new abortion law when the legislative session begins in January, and then Planned Parenthood would challenge it, triggering a new court case in which the Iowa Supreme Court could establish a new standard for evaluating abortion laws.

The attorneys didn’t talk much about the potential impact of the abortion ban during Friday’s hearing. They instead focused on arguments about the process and the standard of judicial review that should be used.

Reynolds signed the “fetal heartbeat” bill into law in 2018, when it was considered the strictest abortion law in the country. It was never enforced.

The term “fetal heartbeat” can be misleading in the context of these laws, according to medical experts. A pregnancy is not medically called a fetus until about 10 weeks from the pregnant person’s last period. But cardiac activity can be detected as early as 6 weeks from the last period, when the pregnancy is still in the embryonic stage and the heart is not fully developed.

Abortion is currently legal up to 20 weeks of pregnancy in Iowa.

It’s not clear when Gogerty will issue a ruling in the case. Either way, the losing party is likely to appeal her ruling to the Iowa Supreme Court.

Copyright 2022 Iowa Public Radio. To see more, visit Iowa Public Radio.

Katarina Sostaric is an Iowa City based reporter covering Eastern Iowa for Iowa Public Radio.