Planned Parenthood of the Heartland, Inc., and Jill Meadows, M.D. v. Kim Reynolds ex rel. State of Iowa and Iowa Board of Medicine

IN THE SUPREME COURT OF IOWA

No. 21–0856

Submitted February 23, 2022—Filed June 17, 2022

Amended August 24, 2022

PLANNED PARENTHOOD OF THE HEARTLAND, INC., and

JILL MEADOWS, M.D.,

Appellees,

vs.

KIM REYNOLDS ex rel. STATE OF IOWA and

IOWA BOARD OF MEDICINE,

Appellants.

Appeal from the Iowa District Court for Johnson County, Mitchell E.

Turner, Judge.

In a case challenging the constitutionality of a law mandating a 24-hour

waiting period for an abortion, the defendant state officials appeal the district

court’s grant of summary judgment to the abortion-provider plaintiffs.

REVERSED AND REMANDED.

Mansfield, J., delivered the opinion of the court, in which Waterman and

Oxley, JJ., joined, and in which McDonald and McDermott, JJ., joined as to

parts II, III, and IV.A–E, and in which Christensen, C.J., joined as to parts II, III,

and IV.A–B. McDermott, J., filed an opinion concurring in part and dissenting in

part, in which McDonald, J., joined. Christensen, C.J., filed an opinion

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concurring in part and dissenting in part, in which Appel, J., joined as to parts

I–II. Appel, J., filed a dissenting opinion.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, Samuel P. Langholz (argued) and Thomas J. Ogden, Assistant Attorneys

General, for appellants.

Rita Bettis Austen (argued) of American Civil Liberties Union of Iowa

Foundation, Des Moines, Alice J. Clapman, Camila Vega, and Christine Clarke

(until withdrawal) of Planned Parenthood Federation of America, Washington,

D.C., for appellees.

Alan R. Ostergren, Des Moines, for amici curiae Kirkwood Institute, Inc.

and Members of the 89th General Assembly of Iowa.

Christopher P. Schandevel (argued) of the Alliance Defending Freedom,

Ashburn, Virginia, Kevin H. Theriot and Elissa Graves of the Alliance Defending

Freedom, Scottsdale, Arizona, and Chuck Hurley of the Family Leader,

Urbandale, for amici curiae 60 Members of the Iowa Legislature.

W. Charles Smithson, West Des Moines, Robert J. Bird, Jr., Dexter, and

Jake Heard, Urbandale, for amici curiae Ten Iowa State Senators.

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Michael Streit and Colin C. Smith of Sullivan & Ward, P.C., West Des

Moines, for amicus curiae League of Women Voters (Iowa Chapter).

Elizabeth A. Battles, Des Moines, and Joshua Opperman, Des Moines, for

amici curiae Iowa Coalition Against Domestic Violence and Iowa Coalition

Against Sexual Assault.

Thomas W. Foley of RSH Legal, Cedar Rapids, for amici curiae University

of Iowa and Drake University Law Professors.

James C. Larew and Deborah K. Svec-Carstens of Larew Law Office, Iowa

City, for amici curiae 33 Iowa State Legislators.

Kimberly A. Parker, Lesley Fredin McColl, and Nickole Medel of Wilmer

Cutler Pickering Hale and Dorr, LLP, Washington D.C., Alan Schoenfeld of

Wilmer Cutler Pickering Hale and Dorr, LLP, New York, New York, and Paige

Fiedler of Fiedler Law Firm, PLC, Johnston, for amici curiae the American College

of Obstetricians and Gynecologists, the American College of Physicians, the

American Gynecological & Obstetrical Society, the American Medical

Association, the Iowa Medical Society, the American Medical Women’s

Association, the American Psychiatric Association, the Council of University

Chairs of Obstetrics and Gynecology, Iowa Chapter of the American Academy of

Pediatrics, the North American Society for Pediatric and Adolescent Gynecology,

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the National Association of Nurse Practitioners in Women’s Health, the Society

of Family Planning, the Society of Gynecological Oncology, the Society for

Maternal-Fetal Medicine, and the Society of OB/GYN Hospitalists.

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MANSFIELD, Justice.

I. Introduction.

In this case, we again consider the right to an abortion under the Iowa

Constitution. The right to an abortion under the Federal Constitution is framed

by two landmark cases: Roe v. Wade, 410 U.S. 113 (1973), and Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Roe first

recognized a federal constitutional right to an abortion. 410 U.S. at 153. Casey,

in a plurality opinion, held that regulations and restrictions on abortion before

viability should be evaluated under an undue burden test. 505 U.S. at 878–79.

In 2015, this court applied the federal Casey undue burden test under the

Iowa Constitution. See Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of

Med. (PPH I), 865 N.W.2d 252, 269 (Iowa 2015). We found that a statewide ban

on telemedicine medication abortions, adopted by the board of medicine when it

was otherwise approving the use of telemedicine, violated the Iowa Constitution.

Id. Notably, Planned Parenthood had wanted us to recognize a state

constitutional right to abortion that was broader than the federal constitutional

right. Id. at 262 n.2. We did not reach that issue because we found the

telemedicine ban was unconstitutional even under the federal undue burden

test, a test that the State had conceded was applicable under the Iowa

Constitution. Id. at 262–63.

Three years later, in Planned Parenthood of the Heartland v. Reynolds

(PPH II), we confronted a mandatory 72-hour waiting period for abortion that the

legislature had enacted in 2017. 915 N.W.2d 206, 220–21 (Iowa 2018). This time

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we rejected the undue burden test. Id. at 240. Instead, we found that the Iowa

Constitution—specifically, the due process clause—protected abortion as a

fundamental right. Id. at 237–38. We determined that the waiting period could

not survive strict scrutiny under that test and struck it down as

unconstitutional. Id. at 244.

In 2020, in the waning hours of a legislative session that had been

disrupted by COVID-19, the general assembly added a mandatory 24-hour

waiting period for abortion to pending legislation limiting courts’ ability to

withdraw life-sustaining procedures. The 24-hour waiting period involved the

same period of time that the United States Supreme Court had upheld in Casey.

505 U.S. at 844. Yet Planned Parenthood sued successfully in district court to

block the statute from taking effect. The district court granted summary

judgment to Planned Parenthood on two alternative grounds. First, it reasoned

that the 2020 legislation violated the single-subject rule of the Iowa Constitution

(article III, section 29) and, second, it concluded that our decision in PPH II

invalidating a 72-hour waiting period had issue preclusive effect.

The State appeals. It argues that the 2020 legislation did not embrace more

than “one subject, and matters properly connected therewith.” Iowa Const.

art. III, § 29. It also argues that issue preclusion doesn’t apply and doesn’t bar

the State from seeking to overrule PPH II.

Today, we decide only the issues that the parties have presented to us in

the current procedural posture of the case. On the single-subject rule, we

conclude that a limit on abortion and a limit on withdrawing life-sustaining

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procedures both pertain to the subject of “medical procedures,” as stated in the

bill’s title. Therefore, no violation of the single-subject rule took place.

As to issue preclusion, we agree with the State that a 72-hour waiting

period and a 24-hour waiting period are not identical. We also agree that issue

preclusion does not bar a state’s highest court from revisiting its decision on a

broad question of constitutional law such as the right to an abortion. And,

finally, we hold that any subsidiary fact-findings we made in PPH II occurred

within a constitutional framework that placed every burden of persuasion and

proof on the State. If we overrule that broad constitutional framework, as the

State urges, the findings cannot have preclusive effect. Accordingly, after

carefully considering the parties’ arguments, we decide that PPH II can and

should be overruled.

Although we overrule PPH II, and thus reject the proposition that there is

a fundamental right to an abortion in Iowa’s Constitution subjecting abortion

regulation to strict scrutiny, we do not at this time decide what constitutional

standard should replace it. As noted, in PPH I, we applied the undue burden test

under our constitution when the State conceded that it applied. An amicus

curiae argues that we should hold that the rational basis test applies to abortion

regulations. But the State takes no such position; it simply asks that PPH II be

overruled and stops there. Moreover, the State did not seek summary judgment

below (except as to the single-subject rule); it argued only that Planned

Parenthood should not prevail as a matter of law based on issue preclusion.

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In addition, we are not blind to the fact that an important abortion case is

now pending in the United States Supreme Court. See Dobbs v. Jackson Women’s

Health Org., 141 S. Ct. 2619 (2021) (Mem.) (granting certiorari). That case could

alter the federal constitutional landscape established by Roe and Casey.1 While

we zealously guard our ability to interpret the Iowa Constitution independently

of the Supreme Court’s interpretations of the Federal Constitution, the opinion

(or opinions) in that case may provide insights that we are currently lacking.

Hence, all we hold today is that the Iowa Constitution is not the source of

a fundamental right to an abortion necessitating a strict scrutiny standard of

review for regulations affecting that right. For now, this means that the Casey

undue burden test we applied in PPH I remains the governing standard. On

remand, the parties should marshal and present evidence under that test,

although the legal standard may also be litigated further.

Accordingly, we reverse the district court’s grant of summary judgment to

Planned Parenthood and remand for further proceedings consistent with this

opinion.2

1The Supreme Court has granted certiorari on “Question1 presented by the petition.”

Dobbs, 141 S. Ct. at 2620. That question presented the issue of “[w]hether all pre-viability

prohibitions on elective abortions are unconstitutional.” Petition for Writ of Certiorari, Dobbs v.

Jackson Women’s Health Org., ___ S. Ct. ___, ___ (2022) (No. 19–1392), 2020 WL 3317135, at *i.

The petitioners ask that Roe and Casey be overruled. See id. at ___ n.1, 2020 WL 3317135 at *5

n.1.

2In parts IV.A–B, this opinion speaks for a six-justice majority of this court. In parts

IV.C–E, this opinion speaks for a five-justice majority of this court. Part IV.F is joined by a

plurality of three justices. Two justices dissent from part IV.F because they would rule at this

time that the 24-hour waiting period should be considered under a rational basis test. Two other

justices would reaffirm PPH II and find that the 24-hour waiting period does not survive strict

scrutiny.

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II. Background Facts and Proceedings.

A. Legislative History of House File 594. House File 594 (HF 594) was

introduced in the Iowa House of Representatives on March 4, 2019. Bill History

for House File 594, The Iowa Legislature [hereinafter Bill History HF 594],

https://www.legis.iowa.gov/legislation/billTracking/billHistory?ga=88&billNa

me=HF594 [https://perma.cc/WJ9A-SU2U]. The original version of the bill,

designated as “House File 233” at the time, was entitled, “An Act relating to

limitations regarding the withdrawal of a life-sustaining procedure from a minor

child.” H.F. 233, 88th G.A., 1st Sess. (Iowa 2019). It stated the following:

A court of law or equity shall not have the authority to require the

withdrawal of life-sustaining procedures from a minor child over the

objection of the minor child’s parent or guardian, unless there is

conclusive medical evidence that the minor child has died and any

electronic brain, heart, or respiratory monitoring activity exhibited

to the contrary is a false artifact. For the purposes of this section,

“Life-sustaining procedure” means the same as defined in section

144A.2.

Id. § 1. This language passed the house on March 11, 2019, by a vote of 58–36.

H. Journal, 88th G.A., 1st Sess., at 492 (Iowa 2019).

The bill then went to the senate and was assigned to the judiciary

committee. Bill History HF 594. The judiciary committee recommended the bill’s

passage on April 2. Id. But shortly afterward, the bill was placed on the

Under the narrowest grounds doctrine, part IV.F sets forth the disposition of this case.

For example, in Godfrey v. State, where three justices joined the lead opinion to reverse the

district court, and three justices dissented and would have affirmed the district court, the

dispositive opinion was that of the Chief Justice, whose opinion reversed the district court but

did so on a narrower basis than the lead opinion. See 898 N.W.2d 844, 880–81 (Iowa 2017)

(Cady, C.J., concurring in part and dissenting in part); see also Wagner v. State, 952 N.W.2d

843, 858 (Iowa 2020) (describing the Chief Justice’s opinion in Godfrey as “dispositive”).

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unfinished business calendar, where it remained for over a year until June 13,

2020. Id.

The 2020 legislative session was an unusual one because of COVID-19.

On March 16, as the pandemic was sweeping the nation, the house and senate

suspended proceedings. See S. Journal, 88th G.A., 2d Sess., at 620–22 (Iowa

2020) [hereinafter S.J.]; H. Journal, 88th G.A., 2d Sess., at 605 (Iowa 2020)

[hereinafter H.J.]. On June 3, the general assembly resumed its abbreviated

session with certain health precautions in place. S.J. at 633; H.J. at 606. It was

anticipated that the remainder of the session would be brief.

In the afternoon of June 13, the senate floor manager for HF 594 proposed

a technical amendment, S–5151, to break the bill into subparts and add a

definition of the term “minor.” S.J. at 811–12, 1133–34. During floor debate on

the amendment, three senators questioned the need for these changes. Senate

Video HF 594 – Life Support for Minor, Iowa Legislature, at 4:03:35–4:13:20 PM

(June 13, 2020) [hereinafter Senate Video], https://www.legis.iowa.gov/

dashboard?view=video&chamber =S&clip=s20200613085856120&dt=2020-06-

13&offset=25405&bill=HF%2059 4&status=i. One of those senators predicted

the house would make abortion-related changes to the bill and send it back to

the senate later that night. Id. at 4:10:50 PM. The technical amendment passed,

32–17. S.J. at 812.

HF 594 returned to the house, where another amendment, H–8314, was

proposed. H.J. at 758. This amendment made two changes. First, it amended

Iowa Code section 146A.1(1) (2019) so as to require a 24-hour rather than a

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72-hour waiting period for performing an abortion. H.J. at 1391–92. The 72-hour

waiting period had been found unconstitutional by our court in 2018. See PPH II,

915 N.W.2d at 246. Second, the amendment revised the title of the underlying

legislation to read: “An Act relating to medical procedures including abortion and

limitations regarding the withdrawal of a life-sustaining procedure from a minor

child.” H.F. 594, 88th G.A., 2d Sess. (Iowa 2020) (emphasis added); H.J. at 1392.

A representative raised a point of order that, under the house rules, the

amendment was not germane, stating, “I’m very confused on this amendment.

Somehow, we ended up with an abortion amendment on a limitations on life-

sustaining procedure [bill]. I’d ask the Speaker if this amendment is in fact

germane because it doesn’t appear to even relate to anything in the bill.” House

Video HF 594 – Life Support for Child, Iowa Legislature, at 10:20:41 PM (June 13,

2020) [hereinafter House Video], https://www.legis.iowa.gov/dashboard?view=

video&chamber=H&clip=h20200613100758317&dt=2020-06-13&offset=598&

bill=HF%20594&status=i. The acting speaker of the house agreed: “[Y]our point

is well taken, the amendment is not germane.” Id. at 10:21:08 PM. The

amendment’s sponsor moved to suspend the house rules. H.J. at 758. This

motion passed 52–43. H.J. at 758–59. After approximately thirty-five minutes of

debate, amendment H–8314 passed 53–42. House Video at 10:24:00–10:59:35

PM; H.J. at 759–60. HF 594, as amended, later passed by the same 53–42

margin. H.J. at 762.

The senate took up amended HF 594 with the waiting-period language

approximately five hours later. Senate Video at 04:22:01 AM. By now, it was early

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morning on June 14. After debating the bill for over an hour, the senate passed

it around 5:40 a.m. by a vote of 31–16. Id. at 04:23:50–05:41:23 AM. The

Governor signed the bill into law two weeks later, on June 29. H.F. 594, 88th

G.A., 2d Sess. (Iowa 2020).3

B. Current Requirements of the Challenged Statute. Iowa Code section

146A.1 (2021) now requires the following steps to occur at least 24 hours before

a physician may perform an abortion:

146A.1 Prerequisites for abortion — licensee discipline.

1. A physician performing an abortion shall obtain written

certification from the pregnant woman of all of the following at least

twenty-four hours prior to performing an abortion:

a. That the woman has undergone an ultrasound imaging of

the unborn child that displays the approximate age of the unborn

child.

b. That the woman was given the opportunity to see the

unborn child by viewing the ultrasound image of the unborn child.

c. That the woman was given the option of hearing a

description of the unborn child based on the ultrasound image and

hearing the heartbeat of the unborn child.

d. (1) That the woman has been provided information

regarding all of the following, based upon the materials developed

by the department of public health pursuant to subparagraph (2):

(a) The options relative to a pregnancy, including continuing

the pregnancy to term and retaining parental rights following the

child’s birth, continuing the pregnancy to term and placing the child

for adoption, and terminating the pregnancy.

3It may be worth noting that in 2021, both the house and the senate approved a

constitutional amendment as follows: “[W]e the people of the State of Iowa declare that this

Constitution does not recognize, grant, or secure a right to abortion or require the public funding

of abortion.” 2021 Iowa Acts ch. 187, § 26. To go into effect, this amendment would have to be

approved by both houses of the next general assembly that takes office after the 2022 general

election and by the voters of Iowa. See Iowa Const. art. X, § 1.

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(b) The indicators, contra-indicators, and risk factors

including any physical, psychological, or situational factors related

to the abortion in light of the woman’s medical history and medical

condition.

These requirements do not apply in the case of a medical emergency. Id.

§ 146A.1(2).

A physician who violates this section is subject to licensee discipline. Id.

§ 146A.1(3). But the section “shall not be construed to impose civil or criminal

liability on a woman upon whom an abortion is performed.” Id. § 146A.1(4).

In Casey, as noted, the Supreme Court had upheld a similar 24-hour

waiting period against a federal constitutional challenge. 505 U.S. at 887. The

plurality explained that the State may “further its legitimate goal of protecting

the life of the unborn by enacting legislation aimed at ensuring a decision that

is mature and informed, even when in so doing the State expresses a preference

for childbirth over abortion.” Id. at 883.

PPH II pointed out that there does exist a published, peer-reviewed study

on waiting periods. See Sarah C.M. Roberts et al., Utah’s 72-Hour Waiting Period

for Abortion: Experiences Among a Clinic-Based Sample of Women,

48 Perspectives on Sexual & Reprod. Health 179 (2016). According to that study,

after undergoing the 72-hour waiting period mandated by Utah law, “Eight

percent of women [in the sample] reported changing their minds.” Id. at 185. The

PPH II majority and dissent disagreed on the significance of the eight percent

number. Compare PPH II, 915 N.W.2d at 241–42, with id. at 255–56 (Mansfield,

J., dissenting). In any event, Iowa law has waiting periods for other important

decisions that implicate fundamental rights, including marriage, adoption, and

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divorce. See Iowa Code § 595.4 (three-day waiting period for marriage); id.

§ 598.19 (90-day waiting period for divorce); id. § 600A.4(2)(g) (72-hour waiting

period after birth for adoption).

C. District Court Proceeding and Record. On June 23, 2020, before

HF 594 was actually signed into law, Planned Parenthood of the Heartland and

its medical director, Dr. Jill Meadows, filed a petition in Johnson County District

Court challenging the 24-hour waiting period. They named as defendants the

Governor and the Iowa Board of Medicine.4 The petition sought declaratory

judgment and injunctive relief based on four alleged violations of the Iowa

Constitution: (1) the single-subject clause in article III, section 29; (2) the due

process clause in article I, section 9; (3) the rights of equal protection set forth

in article I, sections 1 and 6; and (4) the inalienable rights clause in article I,

section 1. The petition also maintained that the State was “precluded and

collaterally estopped from re-litigating” the issues decided in PPH II.

Planned Parenthood filed an emergency motion for temporary injunctive

relief on the same day, accompanied by materials from the PPH II record and

supporting affidavits from physicians, a psychologist, a sociologist, a lobbyist,

and an Iowa legislator. The physician affidavits largely reiterated points that had

been made in the earlier PPH II litigation. A central concern is that the waiting

period requires a woman who wishes to have an abortion to make two separate

trips and results in additional travel time, travel expense, time away from work,

4We will refer to the plaintiffs collectively as “Planned Parenthood” and to the defendants

collectively as “the State.”

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and childcare expenses. It also causes scheduling difficulties and creates health

risks as the timing of the abortion itself is pushed back. In some instances, a

woman would be unable to go through the safer and less invasive medication

abortion, which is available only through the eleventh week.

The physician affidavits also pointed out that during the COVID-19

pandemic, waiting periods necessitating a second in-person visit would lead to

increased medical risk for patients and healthcare workers.

A telephonic hearing on this motion took place on June 29. One day later,

before the law went into effect, the district court granted the motion and

temporarily enjoined the State from enforcing the 24-hour waiting period in Iowa

Code section 146A.1(1).

On January 22, 2021, Planned Parenthood moved for summary judgment

based on the single-subject rule and issue preclusion. Planned Parenthood urged

that HF 594 constituted unconstitutional “log rolling” and that the State was

precluded from relitigating issues it had lost on in 2018 when this court decided

PPH II. The State resisted and cross-moved for partial summary judgment on the

single-subject rule.

On June 21, the district court entered an order that granted summary

judgment to Planned Parenthood and declared the 24-hour waiting period to be

unconstitutional based on both grounds asserted by Planned Parenthood.

First, the court “wholeheartedly” agreed with Planned Parenthood that a

single-subject violation had occurred. It noted that HF 594 was “passed under

highly unusual circumstances” because there was little debate on “a polarizing

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and highly controversial topic” when “most Iowans would have been asleep.” The

court found “the Amendment was clearly logrolled with other legislation, since

[it] was attached to a non-controversial provision regarding withdrawal of

life-sustaining procedures from a minor child.” The court concluded that this

was an “extreme case” in which “the Amendment [wa]s indisputably not germane

to the underlying bill.”

Second, the district court also granted summary judgment on the

alternative ground that issue preclusion from the 2018 PPH II decision barred

the State from defending an abortion waiting period, even one shorter in duration

than the 72 hours involved in PPH II.

Reviewing our decision in PPH II, the district court indicated that our court

had found mandatory delay laws do not benefit women seeking an abortion and

do not change their minds. The district court further observed that PPH II found

significant burdens associated with a waiting period that required two trips to

an abortion clinic. The court reasoned that these factual findings applied equally

to a 24-hour waiting period. Therefore, the district court concluded that PPH II

was dispositive of the result in this case:

The Court finds, upon review of the entire PPH[II] decision, that these

same parties had a full and fair opportunity to litigate the issue of

mandatory delay laws and patient decision-making in the first

action. The Court finds that issue preclusion bars Respondents from

re-litigating certain matters within PPH[II], which includes the issue

of whether “mandatory waiting periods” (whether it is 72-hour, 24-

hour, or any time frame contrary to “PPH’s current same-day

regime”) between women’s informational and procedural abortion

appointments “will impact patient decision-making,” as these

identical issues were raised and litigated in, and were material and

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relevant to, the determination of issues by the Iowa Supreme Court

that were essential to its ultimate opinion.

The State filed a timely appeal, which we retained. On appeal, the State

challenges the district court’s determination that HF 594 violated the

single-subject rule set forth in article III, section 29 as well as the court’s

application of issue preclusion based on PPH II to a shorter 24-hour waiting

period. The State also asserts that PPH II was wrongly decided and should be

overruled.

III. Standard of Review.

We review summary judgment rulings for correction of errors at law.

Bandstra v. Covenant Reformed Church, 913 N.W.2d 19, 36 (Iowa 2018).

“Whether the elements of issue preclusion are satisfied is a question of law.” Id.

(quoting Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016)).

Constitutional claims are reviewed de novo. Planned Parenthood of the

Heartland, Inc. v. Reynolds (PPH III), 962 N.W.2d 37, 45 (Iowa 2021). “In reviewing

constitutional challenges to statutes, ‘we must remember that statutes are

cloaked with a presumption of constitutionality. The challenger bears a heavy

burden, because it must prove the unconstitutionality beyond a reasonable

doubt.’ ” Id. at 46 (quoting AFSCME Iowa Council 61 v. State, 928 N.W.2d 21, 31

(Iowa 2019)); see also Godfrey v. State, 752 N.W.2d 413 (Iowa 2008) (“We review

claims based on a violation of our state constitution de novo.”).

“In determining whether the single subject requirement has been complied

with, we construe the enactment liberally in favor of its constitutionality.” State

v. Iowa Dist. Ct., 410 N.W.2d 684, 686 (Iowa 1987).

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IV. Analysis.

A. Does HF 594 Violate the Single-Subject Rule? Iowa’s single-subject

rule is found in article III, section 29. It states,

Every Act shall embrace but one subject, and matters properly

connected therewith; which subject shall be expressed in the title.

But if any subject shall be embraced in an Act which shall not be

expressed in the title, such Act shall be void only as to so much

thereof as shall not be expressed in the title.

Iowa Const. art. III, § 29.

Planned Parenthood contends—and the district court found—that HF 594

did not “embrace but one subject, [or] matters properly connected therewith.” Id.

In the district court’s view, it was improper for the general assembly to couple a

mandatory abortion waiting period with a limitation on the removal of life

support because those matters involved different subjects. As we explain herein,

we respectfully disagree.

Simply stated, both provisions of HF 594 related to a single subject as set

forth in the bill’s title—“medical procedures.” In fact, their connection was closer

than that. Not only did both provisions relate to medical procedures, but they

also related to governmental regulation of medical procedures in the interest of

promoting human life.

Consider what Planned Parenthood says in its brief: “These

provisions are at odds in both substance and purpose: the first protects private

medical decision-making from state interference, while the second explicitly

enacts such state interference in individual medical decision-making.” We

recognize that Planned Parenthood disagrees with the policies behind the second

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provision. But as their quoted summary of HF 594 shows, both provisions related

to state regulation of individual medical decision-making. And both provisions

were designed to preserve human life.5

In addition, considerations of history, precedent, and policy bolster our

conclusion that the general assembly’s enactment of HF 594 did not violate the

single-subject rule.

1. Historical background on the adoption of article III, section 29. Iowa’s

original constitution had a different version of the single-subject rule, which was

actually a “single object” rule. See Iowa Const. art. III, § 26 (1846). It stated,

“Every law shall embrace but one object, which shall be expressed in the title.”

Id. In State ex rel. Weir v. County Judge of Davis County, our court took a

deferential approach to interpreting this constitutional requirement. 2 Iowa

(Clarke) 280, 284 (1855). That case involved an omnibus road bill that

established, vacated, or relocated dozens of different roads across the state. Id.

at 281–82. We needed to determine whether this act was directed at “one object”

(as required by the former constitution) or multiple objects because it dealt with

many different roads. Id.

We decided that the word “object” did not refer to particulars like specific

roads, but rather referred to the goal of the legislation in a more general sense.

Id. at 283 (“The unity of object is to be looked for in the ultimate end, and not in

the detail or steps leading to the end.”). Ultimately, we held that the act in

5The location of these provisions in the Iowa Code suggests a connection as well. They

were codified within six pages of each other in Title IV, Subtitle 2, governing “Health-Related

Activities.” See Iowa Code chs. 144G–146A (Vol. II, pgs. 1119–25).

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question did not violate the constitution’s single-object rule, stating, “There is,

undoubtedly, great objection to uniting so many particulars in one act, but so

long as they are of the same nature, and come legitimately under one general

denomination or object, we cannot say that the act is unconstitutional.” Id. at

284.6

Santo v. State was decided on the same day in 1855 as Weir, and it reached

the same result in another context. 2 Iowa (Clarke) 165, 188 (1855). Santo

involved “An Act for the Suppression of Intemperance” that sought to curb

drunkenness in various ways, including, for example, “the prohibition of the

manufacture and sale of intoxicating drinks” and “declaring buildings a public

nuisance.” Id. at 174. The court found this to be constitutional, stating, “The

whole act has reference to but one subject, viz: ‘The prohibition of the traffic in

liquors.’ . . . All the provisions of the law, from section one to section eighteen,

refer to the same object.” Id. at 188.

6Notably, even though the 1855 court was less than ten years removed from the original

constitution’s ratification, it still looked to actions taken by the general assembly shortly after

ratification as clues to the constitution’s meaning. The court observed that the legislature had

established multiple roads in a single act less than a year after the constitution was adopted. It

noted,

This is exactly like the one in the case at bar. Some weight is due to the fact that

in this first General Assembly, were many men who were members of the

convention which formed the constitution, and inserted this new provision. This

consideration is not conclusive, by any means, it is true; but it assists us in

arriving at the intent of the constitution.

Weir, 2 Iowa at 284. This suggests that we—165 years removed from the adoption of our

constitution—can look to contemporaneous acts of the legislature and the judiciary to discern

what the constitution was understood to mean at the time it was adopted. See, e.g., King v. State,

818 N.W.2d 1, 14 (Iowa 2012) (pointing out that an 1859 case was a valuable interpretive tool

because it was decided “at a time when the 1857 constitution was quite fresh in people’s minds”).

21

As it turned out, a constitutional convention would be held two years later,

and these two cases would play a role in the single-subject rule debate. Rather

than retain the language from the 1846 constitution, the delegates proposed new

language that changed the phrase “embrace but one object” to “embrace but one

subject, and matters properly connected therewith.” See 1 The Debates of the

Constitutional Convention of the State of Iowa 530 (W. Blair Lord rep., 1857)

[hereinafter The Debates], http://publications.iowa.gov/7313/. A delegate from

Davis County, Mr. Palmer, moved to strike the word “subject” and replace it with

“object,” which he understood to be the narrower word. Id. He explained, “It

appears to me that if we can embrace so many different provisions under the

word ‘subject,’ it ought to be stricken out, and some other word substituted for

it, which would confine the action of the legislature within some more limited

range.” Id.

A delegate from Johnson County, Mr. Clark, disagreed. Id. at 531. While

arguing against Mr. Palmer’s motion, he recounted the supreme court’s opinion

on the omnibus road bill at issue in Weir:

[A] decision was rendered by two judges, sustaining the law as

constitutional; that though it embraced a variety of objects, it

embraced but one subject. From that decision the chief justice

dissented. That decision now stands, though there are two judges in

favor of it, and two against it. I think the construction put upon the

act by the majority of the court was a correct one.

Id. Mr. Clark favored the court’s broader construction, and he favored using the

word “subject” in the new constitution because he understood it to allow more

legislative flexibility. Id. He explained, “[T]he word ‘subject’ is a broader word,

and more extensive in its application, than the word ‘object.’ ” Id.

22

After this exchange, the convention rejected Mr. Palmer’s motion. Id. Both

sides of this debate at the convention understood the word “subject” to be

broader—and that word won the day. See id. at 530–31.7

Aside from the debate regarding that specific word choice, other textual

deviations from the earlier constitution weigh in favor of legislative deference.

Most notably, article III, section 29 allows for “matters properly connected” to a

bill’s subject to be included in legislation without resulting in a constitutional

violation. Iowa Const. art. III, § 29. The text does not require a single subject in

the strictest sense; instead, it allows legislation to include connected matters,

even if not the same subject per se. Miller v. Bair, 444 N.W.2d 487, 489 (Iowa

1989) (“[I]n order for a violation of the single-subject requirement to exist, the

challenged legislation must embrace ‘two or more dissimilar and discordant

subjects that by no fair intendment can be considered as having any legitimate

connection with or relation to each other.’ ” (quoting Long v. Bd. of Supervisors,

142 N.W.2d 378, 381 (Iowa 1966))); Christie v. Life Indem. & Inv. Co., 48 N.W. 94,

96 (Iowa 1891) (“It is not true that an act may not embrace more than one

subject. The act shall embrace but one subject, and matters properly connected

therewith.” (citation omitted)).

Given the text of article III, section 29 and its history, a flexible application

of the single-subject rule is appropriate. See Iowa-Neb. Light & Power Co. v. City

7In Weir, the court stated in that there is “reason to believe” that the word “subject” is

narrower than the word “object.” 2 Iowa at 285. But at the constitutional convention, Mr. Palmer

stated that he understood “subject” to be broader than “object.” And Mr. Clark agreed that

“subject” was broader. We do not wade into this debate. We merely note that the delegates

ultimately chose what they intended to be the broader word.

23

of Villisca, 261 N.W. 423, 425 (Iowa 1935) (describing the “obvious . . . intention

on the part of the framers . . . to give [the single-subject rule] a liberal

construction” and collecting early cases that support that conclusion). While the

rule is not entirely without teeth, the legislature should be afforded considerable

deference. See Long, 142 N.W.2d at 381 (“All that is necessary is that the act

should embrace some one general subject, and by that is meant, merely, that all

matters treated therein should fall under some one general idea and be so

connected with or related to each other, either logically or in popular

understanding, as to be part of or germane to one general subject.”).

2. Caselaw on article III, section 29. Our caselaw has generally adhered to

this flexible approach. In State v. Mabry, we summarized our single-subject

precedent as follows:

There are longstanding rules for determining whether an act

meets the constitutional mandate of article III, section 29. First and

foremost, we construe “the [act] liberally in favor of its

constitutionality.” [Iowa Dist. Ct., 410 N.W.2d at 686]. Before we can

say the act is invalid we must find that the act “encompass[es] two

or more dissimilar or discordant subjects that have no reasonable

connection or relation to each other.” Id.; see also Western Int’l [v.

Kirkpatrick], 396 N.W.2d [359,] 364 [(Iowa 1986) (en banc)]. Even if

the “matters grouped as a single subject might more reasonably be

classified as separate subjects, no violation occurs if these matters

are nonetheless relevant to some single more broadly stated

subject.” Id.

....

Under this test “[l]egislation will not be held unconstitutional unless

clearly, plainly and palpably so.” [Long, 142 N.W.2d at 381]. And “[i]f

the constitutionality of an act is merely doubtful or fairly debatable,

the courts will not interfere.” Id. So “[i]t is only in extreme cases,

where unconstitutionality appears beyond a reasonable doubt, that

this court can or should act. . . .” [Id. at 381–82].

24

460 N.W.2d 472, 474 (Iowa 1990) (first, third, seventh, ninth, and tenth

alterations and second omission in original) (citation omitted).

This court has consistently rejected single-subject challenges to legislation

when there is a common denominator consisting of an overall subject matter.

See, e.g., State v. Soc. Hygiene, Inc., 156 N.W.2d 288, 289, 292 (Iowa 1968)

(finding that a bill with the stated purpose of “suppress[ing] the vending of

articles of indecent and immoral use” that had a section criminalizing the sale of

contraceptives in vending machines did not violate the single-subject rule

because “the listing by the legislature of what it considers indecent and immoral

is within the limitations of the Constitution”); Rains v. First Nat’l Bank of

Fairfield, 206 N.W. 821, 822 (Iowa 1926) (holding that provisions governing

appellate procedure in the supreme court and other provisions setting

qualifications to be admitted to practice law in Iowa were both “clearly [] matter[s]

connected with the subject of procedure in the Supreme Court”).

And broad subject matters are acceptable. See, e.g., Utilicorp United Inc. v.

Iowa Utils. Bd., 570 N.W.2d 451, 454–54 (Iowa 1997) (en banc) (finding no

violation because “[t]he act encompasse[d] one general topic—public utilities—

and amend[ed] nothing other than various provisions in the public utility chapter

of the Code”); Iowa Dist. Ct., 410 N.W.2d at 685, 687 (determining that a

provision removing magistrates’ jurisdiction over first offense operating while

intoxicated did not violate the single-subject rule even though the rest of the bill

addressed the transportation of alcohol, the Sunday sale of alcohol, and the topic

of minors and alcohol because all provisions were “rationally related to the

25

regulation of alcohol and its consumption or possession”); Webster Realty Co. v.

City of Fort Dodge, 174 N.W.2d 413, 418 (Iowa 1970) (finding that “planning,

achieving, and financing urban renewal” was one subject); Frost v. State, 172

N.W.2d 575, 580 (Iowa 1969) (finding that the “acquisition, purchase,

construction, and financing of interstate bridges” was one subject); Long, 142

N.W.2d at 380 (finding that a courthouse hour provision did not violate the

single-subject rule when it was added to a bill “relating to the compensation of

county officers, deputies and clerks”).

In fact, our cases have found a single-subject violation on only three

occasions. As the following discussion demonstrates, all three differ from the

present case in significant ways.8

In Western International Insurance v. Kirkpatrick, the general assembly

passed a law entitled, “An act relating to code corrections which adjust and

correct earlier omissions and inaccuracies, remove inconsistencies, and reflect

or alter current practices, and providing penalties.” 396 N.W.2d at 361. The

primary goal of this legislation was technical: it was designed to make sixty-one

8Over the years, our court has seen claims based on article III, section 29 raised more

than ninety times. See State v. Nickelson, 169 N.W.2d 832, 833–34 (Iowa 1969); William J. Yost,

Note, Before a Bill Becomes a Law—Constitutional Form, 8 Drake L. Rev. 66, 67 (1958) [hereinafter

Yost]. Among those cases, only thirteen statutes have been found to be invalid. See State v.

Taylor, 557 N.W.2d 523, 526–27 (Iowa 1996); Giles v. State, 511 N.W.2d 622, 625 (Iowa 1994);

W. Int’l Ins. v. Kirkpatrick, 396 N.W.2d 359, 365–66 (Iowa 1986) (en banc); Nickelson, 169 N.W.2d

832, 837; Nat’l Benefit Acc. Ass’n v. Murphy, 269 N.W. 15, 19 (Iowa 1936); Smith v. Thompson,

258 N.W. 190, 201 (Iowa 1934), overruled on other grounds by Carlton v. Grimes, 23 N.W.2d 883,

903–04 (Iowa 1946); Chi., R.I. & P. Ry. v. Streepy, 224 N.W. 41, 44 (Iowa 1929); In re Breen, 222

N.W. 426, 428 (Iowa 1928); State v. Manhattan Oil Co., 203 N.W. 301, 303 (Iowa 1925);

Des Moines Nat. Bank v. Fairweather, 181 N.W. 459, 462 (Iowa 1921); State v. Bristow, 109 N.W.

199, 200 (Iowa 1906); Rex Lumber Co. v. Reed, 77 N.W. 572, 574 (Iowa 1898); Williamson v. City

of Keokuk, 44 Iowa 88, 92 (1876). All thirteen of those statutes had a faulty title; only three

statutes were deemed to violate the single-subject clause as well. See Taylor, 557 N.W.2d at 526;

Giles, 511 N.W.2d at 625; W. Int’l Ins., 396 N.W.2d at 365.

26

“code corrections” to various parts of the Iowa Code that were “conflicting,

redundant or ambiguous.” Id. at 364. But the act also included substantive

amendments to the workers’ compensation statutes that permitted direct

appeals from administrative decisions to this court. Id. at 361.

We found the substantive parts of the law to be constitutionally deficient

on several grounds. First, they impermissibly tried to confer original jurisdiction

on this court in violation of article V, section 4. Id. at 363–64. Also, the title of

the act, which purported to “reflect or alter current practices,” was insufficient

to give notice of the changes to the workers’ compensation laws, violating the

article III, section 29 requirement that an act’s subject be expressed in its title.

Id. at 361, 365. Finally, we stated that the act violated the single-subject rule “by

providing for substantive changes in a code corrections bill.” Id. at 365.

Eight years later, in Giles v. State, we again dealt with a modification of

appellate jurisdiction that had been included in a larger code-corrections bill.

511 N.W.2d 622, 625 (Iowa 1994). We tracked our earlier decision in Western

International and again held that substantive legislation within a

code-corrections bill violates the single-subject rule: “When [a code-correction]

bill incorporates substantive changes, however, the portions that violate article

III, section 29 must be stricken.” Id. We found that the legislation had violated

the title requirement as well. Id. (“Incorporating such a change in a Code

correction bill violates the single subject and title requirement of the Iowa

Constitution.”).

27

Notably, both Western International and Giles involved technical

corrections affecting many disparate areas of the Iowa Code. That in itself wasn’t

a problem. We indicated that the technical nature of the changes could be viewed

in itself as the single subject of the legislation. See Western International, 396

N.W.2d at 365; Giles, 511 N.W.2d at 625. However, once substantive changes

were woven into the same legislation, there ceased to be only one subject. See

Western International, 396 N.W.2d at 365; Giles, 511 N.W.2d at 625. Our case

does not involve a lengthy, wide-ranging code-corrections bill. Neither Western

International nor Giles bears lessons for the present case.

State v. Taylor, 557 N.W.2d 523 (Iowa 1996), marked the third and only

other time this court has found a violation of the single-subject rule. Taylor

involved an adult defendant who was convicted of trafficking in stolen weapons.

Id. at 524. That crime had been enacted as part of a much larger juvenile justice

bill, and the defendant argued the legislation as a whole violated article III,

section 29. Id. at 526–27. “The bill contain[ed] seventy-four sections embracing

a variety of initiatives, all but six of which expressly relate[d] to juveniles.” Id. at

526. We described the primary contents of the bill as follows:

The legislation calls for training gang-affected youth in racial and

cultural awareness; prohibits supplying or distributing alcohol,

tobacco, and drugs to juveniles; sets up procedures for enforcing

juvenile offenses; establishes community programs to support at-

risk juveniles through intervention, prevention, and education;

combats child abuse and sexually predatory acts; creates weapon-

free school zones, prohibits selling guns and ammunition to minors,

and provides punishment for juveniles using firearms; appropriates

money to fund juvenile programs and services; and calls for a study

of juvenile delinquency, including patterns of recidivism and

rehabilitation.

28

Id. at 526 (citations omitted). The part of the act that criminalized trafficking in

stolen weapons made no reference to juvenile justice. Id.

The State argued “that any weapons law could have an impact on

juveniles.” Id. But we rejected this argument because “[s]uch reasoning would

bring within its orbit virtually any new crime whether germane to the subject of

juvenile justice or not.” Id. Also, as in the other cases where we have found an

article III, section 29 violation, the title in Taylor was deficient. Id. at 527. It failed

to convey that the bill enacted a new criminal offense. Id. The title suggested that

the legislation would only affect juvenile delinquency. See id.

Taylor is the high-water mark for challenges to legislation under the single-

subject rule. Even so, it is distinguishable. As in Western International and Giles,

we were dealing in Taylor with a lengthy piece of legislation that contained a

stray, out-of-place item: a large juvenile justice bill dwarfed the challenged adult

criminal law that went unmentioned in the title. See Taylor, 557 N.W.2d at

526–27. And the State’s suggested point of commonality between the criminal

offense and juvenile justice could conceivably have applied to every criminal law.

Id. at 526. Here, in contrast, the legislation made two conceptually related

substantive changes to laws governing medical decision-making that were both

mentioned in the bill’s title. Neither of the provisions at issue is an alien wayfarer

in some larger bill.

To summarize, both sections of HF 594 pertained to the identified subject

of “medical procedures,” specifically government regulation of medical

procedures in the interest of preserving human life. That differs from the

29

situation in Western International, Giles, and Taylor and does not violate the

single-subject rule.

3. Circumstances of HF 594’s passage. We also believe that the

circumstances of HF 594’s passage—although not directly relevant to whether

the legislation violated the single-subject rule—support the State’s position that

no constitutional violation occurred.

Contrary to the views of the district court, HF 594’s passage did not occur

through logrolling. We have explained,

Logrolling occurs when a provision unrelated to the core of a bill and

not itself capable of obtaining majority support is tied to a popular

bill having majority support. Logrolling also occurs when several

matters, none of which individually has majority support, are joined

in one bill and passage procured by combining the minority in favor

of each into a majority willing to enact them all.

Iowa Dist. Ct., 410 N.W.2d at 686.

That is not what happened here. The 24-hour waiting period was

separately approved by a house majority. HF 594 in its final form was then

approved by majorities in both the house and the senate, where the debate

focused exclusively on the merits of the 24-hour waiting period. See Senate Video

at 04:23:50–05:41:23 AM; House Video at 10:24:00–10:59:35 PM. No legislator

who voted for HF 594 contends they would have voted against the 24-hour

waiting period as a standalone provision. No legislator contends they did not

understand the contents of HF 594 or were misled as to what they were voting

on.

In Mabry, we explained that article III, section 29 serves three purposes:

30

First, it prevents logrolling. Logrolling occurs when unfavorable

legislation rides in with more favorable legislation. Second, it

facilitates the legislative process by preventing surprise when

legislators are not informed. Finally, it keeps the citizens of the state

fairly informed of the subjects the legislature is considering.

460 N.W.2d at 473 (citations omitted).9 The single-subject requirement is

primarily aimed at the first of these purposes: avoiding logrolling. Iowa Dist. Ct.,

410 N.W.2d at 686 (“The single subject requirement is primarily intended to

prevent ‘logrolling.’ ” (quoting Western Int’l, 396 N.W.2d at 364)); see also Long,

142 N.W.2d at 382 (“The primary and universally-recognized purpose of the one-

subject rule is to prevent ‘log-rolling’ in the enactment of laws . . . .”). The other

two purposes, avoiding surprise to legislators and avoiding surprise to citizens,

are primarily achieved through the title requirement. Iowa Dist. Ct., 410 N.W.2d

at 686 (“The title requirement of article III, section 29, serves a separate purpose.

By mandating the act’s subject be expressed in its title, legislators and citizens

alike are given notice of its contents, reducing the possibility of legislation by

surprise or fraud.”); Long, 142 N.W.2d at 383 (“The primary purpose of the title

requirement is to prevent surprise and fraud upon the people and the

9Mabry said that “single-subject rule” served these three purposes. 460 N.W.2d at 473.

We note, however, that Mabry referred to the single-subject requirement and the title requirement

together as the “single-subject rule.” See id. (“Most state constitutions require that ‘no [legislative]

act shall contain more than one subject, which shall be expressed in its title. . . .’ This

constitutional mandate is known as the ‘single-subject’ rule.” (omission in original) (quoting 1A

Norman J. Singer, Sutherland Statutory Construction § 22.08, at 187 (C. Sands 4th ed. 1985))).

Also, in discussing the three purposes, Mabry cited to and relied on a Drake Law Review note

that was referring to article III, section 29 as a whole. See id. (citing Yost, 8 Drake L. Rev. at 67).

To avoid confusion in this opinion, we refer to the single-subject requirement and title

requirement separately.

31

legislature.”).10 The single-subject rule and the title requirement are related, but

they “have independent operation, have an independent historical base, and a

separate purpose.” Long, 142 N.W.2d at 383.

Ultimately, we should decide whether a violation of article III, section 29

occurred based on the text of HF 594, not the process of its enactment. But the

process does not suggest that the purposes of the single-subject rule were

thwarted. Our constitution does not prohibit the legislature from burning the

midnight oil or passing significant legislation with relatively little public debate,

as they often do at the end of a legislative session.

Article III, section 29 is not merely aspirational. We do not share the views

of one amicus that the single-subject clause of article III, section 29 is totally

nonjusticiable. But just as we would bristle at the legislature telling us how we

should conduct our business internally, so should we be hesitant to pass

judgment on how the legislature conducts theirs.

Finally, we turn to Planned Parenthood’s contention that the acting house

speaker’s ruling on germaneness means that HF 594 as approved violated the

single-subject rule. We disagree. The issue of whether

H–8314 was germane to the bill it was amending is different from the issue of

whether the final bill, once enacted, embraced a single, broader subject. See

88th G.A., House Rules (House Resolution 11) r. 38 (2019) (“An amendment must

10“The single subject limitation of article III, section 29, also facilitates an orderly

legislative process. As we wrote in Long: ‘By limiting each bill to a single subject, the issues

presented by each bill can be better grasped and more intelligently discussed by [] legislators.’ ”

Iowa Dist. Ct., 410 N.W.2d at 686 (quoting Long, 142 N.W.2d at 382) (citation omitted).

32

be germane to the subject matter of the bill it seeks to amend. An amendment to

an amendment must be germane to both the amendment and the bill it seeks to

amend.”). The frame of reference matters. Suppose you have pending legislation

authorizing the building of a road in eastern Iowa. An amendment proposing to

close a road in western Iowa may not be germane to the subject matter of that

existing piece of legislation. But the combined legislation can be fairly said to

deal with the single subject of “roads.” Cf. Weir, 2 Iowa at 284. It logically follows,

therefore, why the house can vote to suspend its own rules (and did so in this

case), but the Iowa Constitution cannot be suspended. The rule requirements

are more stringent than those of our constitution.

B. Does Issue Preclusion Bar the State from Defending a 24-Hour

Waiting Period on the Merits? Planned Parenthood argues that the doctrine of

issue preclusion forecloses the State from litigating the merits of the 24-hour

waiting period that the legislature enacted in 2020 as part of HF 594.

Specifically, Planned Parenthood contends it must be accepted for purposes of

this litigation that “mandatory delay laws do not change people’s minds” and

that multiple trips to an abortion provider “impose[s] a range of medical,

financial, emotional and social burdens.”

As we have discussed, in 2018, our court struck down as unconstitutional

a longer 72-hour waiting period. There, for the first time, we identified a

fundamental right to an abortion as part of the Iowa Constitution. PPH II, 915

N.W.2d at 234–37 (majority opinion). Having found that such a right existed, we

concluded that abortion-related legislation must be evaluated under the strict

33

scrutiny standard rather than the Casey undue burden standard. Id. at 240–41.

Then, utilizing that strict scrutiny framework, we struck down the 72-hour

waiting period for two independent reasons. First, it would not “result in a

measurable number of women choosing to continue a pregnancy they otherwise

would have terminated without the mandatory delay.” Id. at 243. Second, “[e]ven

if the Act did confer some benefit to the State’s identified interest, it sweeps with

an impermissibly broad brush.” Id. at 243. We reasoned that it “takes no care to

target patients who are uncertain when they present for their procedures but,

instead, imposes blanket hardships upon all women.” Id.

In short, PPH II decided one pure question of law, namely, that there is a

fundamental right to abortion in the Iowa Constitution. Working from that legal

determination, PPH II went on to find the 72-hour waiting period

unconstitutional on two alternative (and arguably factual) grounds.

We have said that a party invoking issue preclusion must establish four

elements:

(1) the issue in the present case must be identical, (2) the issue must

have been raised and litigated in the prior action, (3) the issue must

have been material and relevant to the disposition of the prior case,

and (4) the determination of the issue in the prior action must have

been essential to the resulting judgment.

Emps. Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012) (quoting

Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 104 (Iowa 2011)); see also Winger,

881 N.W.2d at 451. Also, when issue preclusion is invoked offensively, as in the

present case, two additional considerations are present:

(1) whether the opposing party in the earlier action was afforded a

full and fair opportunity to litigate the issues . . ., and (2) whether

34

any other circumstances are present that would justify granting the

party resisting issue preclusion occasion to relitigate the issues.

Van Haaften, 815 N.W.2d at 22 (quoting Soults Farms, 797 N.W.2d at 104).

Our law of issue preclusion has drawn on the work of the Restatement

(Second) of Judgments. See, e.g., Barker v. Iowa Dep’t of Pub. Safety, 922 N.W.2d

581, 588 (Iowa 2019); Winger, 881 N.W.2d at 451; In re Pardee, 872 N.W.2d 384,

391 (Iowa 2015); Van Haaften, 815 N.W.2d at 23.

We do not believe issue preclusion applies here. To begin, our decision in

PPH II depended on our resolution of a single legal issue: whether there is a

fundamental right to an abortion in the Iowa Constitution. We do not believe a

court of last resort can be hemmed in by the doctrine of issue preclusion from

deciding what our constitution means. This would have meant, for example, that

the United States Supreme Court in the 1930s would have been precluded from

altering its prior approach to economic regulation and upholding the legislation

of Franklin D. Roosevelt’s New Deal.

The Restatement (Second) of Judgments section 28(2) explains that

relitigation of an issue is not precluded where “[t]he issue is one of law and . . .

a new determination is warranted in order to take account of an intervening

change in the applicable legal context or otherwise to avoid inequitable

administration of the laws.” Restatement (Second) of Judgments § 28(2), at 273

(Am. L. Inst. 1982) [hereinafter Restatement (Second) of Judgments]. Section 29,

which concerns issue preclusion in subsequent litigation with others, goes

further. Id. § 29, at 291–92. In addition to the section 28 circumstances, it lists

other reasons for not applying issue preclusion. Id. These include when “[t]he

35

issue is one of law and treating it as conclusively determined would

inappropriately foreclose opportunity for obtaining reconsideration of the legal

rule upon which it was based.” Id. § 29(7), at 292. Comment i to section 29

elaborates on this ground:

When the issue involved is one of law, stability of decision can be

regulated by the rule of issue preclusion or by the more flexible rule

of stare decisis. See § 28, Comment b. If the rule of issue preclusion

is applied, the party against whom it is applied is foreclosed from

advancing the contention that stare decisis should not bind the

court in determining the issue. Correlatively, the court is foreclosed

from an opportunity to reconsider the applicable rule, and thus to

perform its function of developing the law. . . . [I]t is also pertinent

that the party against whom the rule of preclusion is to be applied

is a government agency responsible for continuing administration of

a body of law applicable to many similarly situated persons. When

any of these factors is present, the rule of preclusion should

ordinarily be superseded by the less limiting principle

of stare decisis.

Id. § 29 cmt. i, at 297.

True, Planned Parenthood was the plaintiff in 2018 and is the plaintiff

today. In that sense, the parties are technically identical in both cases. But this

overlooks the fact that Planned Parenthood is not asserting its own

constitutional rights. See PPH III, 962 N.W.2d at 56–57. The rights at issue are

those of individual women who are not actually before this court as parties and

who would not be bound under claim or issue preclusion principles by the

decision in either case. So, in that respect, there is no mutuality. See United

States v. Mendoza, 464 U.S. 154, 162–64 (1984) (holding that nonmutual

collateral estoppel does not apply against the federal government). Both the

36

section 28(2)(b) and the section 29(7) exceptions to issue preclusion in the

restatement come into play here.11

There is also authority that issue preclusion does not apply to pure

questions of law. As a leading treatise has put it, “It is reasonably clear that

preclusion does not extend to principles of law formulated in abstract terms that

could apply to completely separate fact settings.” 18 Charles Alan Wright, Arthur

R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4425, at 696 (2d

ed. 2016).

In 2018, we decided such an abstract question of law: we held for the first

time that there is a fundamental right to an abortion under the Iowa

Constitution. PPH II, 915 N.W.2d at 237. The rest of our opinion in PPH II flowed

directly from that single, broad legal determination: strict scrutiny, compelling

state interest, and narrow tailoring automatically came next. Id. at 238–41. We

found that the 72-hour period was unconstitutional because it would not have

a “measurable” effect on reducing abortions, and thus would not promote human

life. Id. at 242. We also found that the 72-hour waiting period was

unconstitutional because that waiting period was not narrowly tailored but

instead applied to all women in Iowa who were interested in terminating a

pregnancy, even those whose decisions would not be affected by a 72-hour

waiting period. Id. at 243.

11Also,Planned Parenthood “performs 95% of the abortions in the State of Iowa.” PPH III,

962 N.W.2d at 50. If issue preclusion applied as between Planned Parenthood and the State on

the broad legal question of whether there is a fundamental right to an abortion in the Iowa

Constitution, that could freeze constitutional interpretation on abortion rights based on the

happenstance that one organization has a near-monopoly on providing abortions in Iowa.

37

Having found that issue preclusion does not bar us from reconsidering the

basic legal question of the constitutional status of abortion, this removes any

ground for affording issue preclusion to the rest of our 2018 opinion. Any

fact-finding we did in 2018 was done under a legal standard—strict scrutiny—

that put all the burden of justification on the State. See PPH III, 962 N.W.2d at

47–48 (“Under strict scrutiny, a law is presumptively invalid, and the burden is

on the government to show that the law is ‘narrowly tailored to serve a compelling

state interest.’ ”); Mitchell County v. Zimmerman, 810 N.W.2d 1, 16 (Iowa 2012)

(noting that under strict scrutiny, the government “has the burden to show that

the ordinance serves a compelling state interest and is the least restrictive means

of attaining that interest”). If that burden of proof were to change, issue

preclusion could not apply. See Restatement (Second) of Judgments § 28(4), at

273 (noting that issue preclusion does not apply when “[t]he party against whom

preclusion is sought had a significantly heavier burden of persuasion with

respect to the issue in the initial action than in the subsequent action; the

burden has shifted to his adversary; or the adversary has a significantly heavier

burden than he had in the first action”).12

12We note that in Planned Parenthood of Middle Tennessee v. Sundquist, the Tennessee

Supreme Court held for the first time that there was a fundamental right to terminate a

pregnancy under the Tennessee Constitution and struck down Tennessee’s mandatory waiting

period. 38 S.W.3d 1, 25 (Tenn. 2000). The court also concluded that Planned Parenthood was

not barred by collateral estoppel from relitigating the constitutionality of that waiting period, an

issue on which it had previously lost in federal court. Id. at 23 n.12. In the Tennessee Supreme

Court’s view, the two cases involved “different issues” because the first case was decided under

an undue burden standard rather than a fundamental rights/strict scrutiny standard. Id.

Here, the converse is true. If we find that there is no fundamental right to an abortion in

the Iowa Constitution, then the constitutionality of a mandatory waiting period becomes a

different issue than it was under a fundamental rights/strict scrutiny analysis.

38

Moreover, neither of the two potentially factual determinations we made in

PPH II were “essential” to the judgment. See Van Haaften, 815 N.W.2d at 22;

Restatement (Second) of Judgments § 27, at 250 (stating that the determination

must be “essential to the judgment”). Rather, our court made alternative

determinations. See PPH II, 915 N.W.2d at 242–43. And we made them as a court

of first instance since the lower court had ruled otherwise. See id. at 231. Such

alternative determinations cannot have issue preclusive effect. See Restatement

(Second) of Judgments § 27 cmt. i, at 259 (“If a judgment of a court of first

instance is based on determinations of two issues, either of which standing

independently would be sufficient to support the result, the judgment is not

conclusive with respect to either issue standing alone.”).

Additionally, a 24-hour waiting period is not identical to a 72-hour waiting

period. Common sense would say that a 24-hour waiting period imposes less of

a burden on women seeking an abortion than a 72-hour waiting period, yet also

may be less likely to change minds. In Planned Parenthood of Montana v. State,

the Montana Supreme Court declined to give preclusive effect to a prior decision

invalidating an earlier version of an abortion parental notification law. 342 P.3d

684, 688–89 (Mont. 2015). The new laws had the same basic components—a

required parental notification with a judicial bypass—but contained differences.

Id. That was sufficient to foreclose the use of issue preclusion. Id. at 688 (“The

question before us is only whether the issues in the two cases are identical.”).

In its briefing in PPH II, Planned Parenthood argued that the 72-hour

waiting period involved in that case was “triple the mandatory [24-hour] delay

39

period upheld in Casey, and the evidence at trial confirmed the obvious fact that

a longer required delay is more burdensome.”

In support of its motion for summary judgment on issue preclusion,

Planned Parenthood submitted an affidavit of a physician who said, “[A]lthough

a 24-hour mandatory delay law in theory imposes less automatic delay than a

72-hour mandatory delay law, in practice, it will still cause substantial delay and

other harms.” Planned Parenthood submitted an affidavit from another

physician who said, “A 24-hour mandated delay is no less harmful in practical

terms than a 72-hour requirement.” This strikes us as an unusual approach to

issue preclusion. If the issues are identical, it should not be necessary to submit

affidavits like this at all. And offering an opinion that two different waiting

periods result in the same practical harm does not establish an identity of issues.

In the end, therefore, Planned Parenthood must argue that the doctrine of

issue preclusion freezes the State from ever seeking to overturn the legal

postulate that terminating a pregnancy is a fundamental right under our state

constitution. Our court has never applied issue preclusion in that context.

Planned Parenthood cites to Penn v. Iowa State Board of Regents, 577 N.W.2d

393 (Iowa 1998) (per curiam), and Burns v. Board of Nursing of the State of Iowa,

528 N.W.2d 602 (Iowa 1995), as cases applying issue preclusion in constitutional

litigation. But Penn simply applied issue preclusion to the subordinate question

of when the plaintiff’s constitutional claims accrued for statute of limitations

purposes. 577 N.W.2d at 399–400. And Burns applied issue preclusion when the

plaintiff, within the same case, sought to relitigate constitutional issues it had

40

already litigated and lost before us in an earlier stage of the same case. 528

N.W.2d at 605. Perhaps the issue in Burns was wrongly titled; the constitutional

claims should have been rejected under “law of the case” rather than issue

preclusion. Regardless, Burns bears no resemblance to the present proceeding.

It would be unfathomable to say that issue preclusion prevents the State

from asking us to revisit a broad principle of constitutional law. For example,

earlier this term, three members of this court urged that we should overrule a

recent case and find that the Iowa Constitution does not bar police from

removing trash from trash cans put out for collection. See State v. Kuutila, 965

N.W.2d 484, 487–90 (Iowa 2021) (Waterman, J., dissenting, joined by

Christensen, C.J., and Mansfield, J.). Last term, we overruled a case requiring

law enforcement to obtain a search warrant before conducting a breath test on

a boater whom they have probable cause to believe is intoxicated. State v. Kilby,

961 N.W.2d 374, 383 (Iowa 2021) (overturning State v. Pettijohn, 899 N.W.2d 1

(Iowa 2017)). If Planned Parenthood were right, then constitutional adjudication

in Iowa would be a one-way ratchet. Once we decided that a right existed under

the Iowa Constitution, the State could never ask us to reconsider that right in a

later case.

For all these reasons, we conclude that issue preclusion does not apply in

this case.

C. Should Stare Decisis Prevent Us From Reconsidering PPH II? We

next turn to whether PPH II’s holding that there is a fundamental right to

terminate a pregnancy in the Iowa Constitution should be revisited. The State

41

has asked that we overrule PPH II. Planned Parenthood resists both on stare

decisis and on the ground that PPH II was correctly decided.

Stare decisis—“to stand by things decided”—cautions us against

overturning our past decisions. See State v. Feregrino, 756 N.W.2d 700, 708

(Iowa 2008) (“The doctrine of stare decisis counsels caution before we overturn

prior precedent of this court.”).

But stare decisis is not an “inexorable command.” Bd. of Water Works Trs.

of City of Des Moines v. Sac Cnty. Bd. of Supervisors, 890 N.W.2d 50, 86 (Iowa

2017) (Appel, J., concurring in part and dissenting in part) (“In close cases, the

determination of whether to apply stare decisis is a matter of judgment, not

inexorable command.”). “Within a system of justice, courts cannot blindly follow

the past. Instead, we are obligated to depart from past cases when they were

erroneously decided.” Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 849 (Iowa

2014). “[I]t is our obligation to revisit a prior decision of our court if we conclude

the previous decision is unsound.” Doe v. New London Comm. Sch. Dist., 848

N.W.2d 347, 360 (Iowa 2014) (Wiggins, J., dissenting). “Of course, stare decisis

is a factor to consider. At the same time, we recognize that stare decisis is not

always determinative. Otherwise, the law would be like a fly imprisoned in

volcanic rock.” State v. Short, 851 N.W.2d 474, 500 (Iowa 2014) (citation omitted).

There are several reasons why stare decisis has less force here than it

might in other contexts. First, PPH II was a constitutional decision. “Stare decisis

has limited application in constitutional matters.” Kilby, 961 N.W.2d at 386

(McDonald, J., concurring specially). “Constitutional cases tend to invoke a weak

42

or less strict form of stare decisis, on the theory that only the courts can correct

bad constitutional precedent, absent constitutional amendments. In other

words, courts must be free to correct their own mistakes when no one else can.”

Tyler J. Buller & Kelli A. Huser, Stare Decisis in Iowa, 67 Drake L. Rev. 317, 322

(2019) [hereinafter Buller & Huser] (footnote omitted).

Also, an empirical study indicates that our court has overruled precedents

at a rate of approximately four per year between 1990 and 2018, and that

between 2011 and 2018 our court “overruled comparatively more constitutional

decisions than [in] any other period in the history of the Iowa Supreme Court

since 1857.” Id. at 345, 356. As the authors put it, “This suggests comparatively

weak constitutional stare decisis by [the court during the 2011–18 period], at

least compared to its predecessors.” Id. at 356. So, our court has been more

willing to revisit constitutional precedents in recent years.

Second, PPH II was decided only four years ago. It is certainly not

“long-standing.” Cf. Venckus v. City of Iowa City, 930 N.W.2d 792, 802 (Iowa

2019) (“Venckus offers no compelling justification to overrule our long-standing

precedents . . . .”). It is not “well-established” or “settled.” Cf. Schmidt v. State,

909 N.W.2d 778, 818 (Iowa 2018) (Mansfield, J., dissenting) (“I would not

abandon our settled precedent, unanimously reaffirmed eight years ago . . . .”).

Precedents generally grow deeper roots as they age. “A court that overturns much

older cases arguably undermines the predictability and stability of the law more

than a court that overturns primarily newer cases because litigants and citizens

43

have come to rely on the long-standing decisions.” Buller & Huser, 67 Drake L.

Rev. at 346.

Stare decisis should be less of an obstacle when the decision to be

overruled is recent and itself overruled other precedent. See State v. Williams,

895 N.W.2d 856, 867–69 (Iowa 2017) (Mansfield, J., concurring specially)

(analyzing how the decision being overruled broke from precedent).

Third, PPH II was overtly based on the notion of a “living” constitution. See

PPH II, 915 N.W.2d at 236. We “consider[ed] current prevailing standards that

draw their ‘meaning from the evolving standards . . . that mark the progress of

a maturing society.’ ” Id. (omission in original) (quoting Griffin v. Pate, 884

N.W.2d 182, 186 (Iowa 2016)). To the extent PPH II viewed constitutional

interpretation as an evolutionary process rather than a search for fixed meaning,

it is hard now to argue that the evolutionary process had to end as soon as PPH II

was decided. Does the Iowa Constitution get to “live” until 2018, at which point

it must stop living?

A group of distinguished law professors from the University of Iowa and

Drake filed an amicus brief in this case on the subject of stare decisis. We respect

their views, but we disagree with them.

The professors argue that a precedent should only be overruled when

“stare decisis has lapsed”—that is, a sufficient time period has passed. In the

professors’ view, four years is not enough. Overruling a four-year-old precedent

“would suggest that this Court had not deliberated adequately in 2018.”

44

To be clear, we do not contend that the court failed to deliberate adequately

in 2018. But we do not agree that every state supreme court decision is entitled

to some minimum try-out period before it can be challenged. In the same month

that our court decided PPH II, we also decided TSB Holdings, L.L.C. v. Board of

Adjustment for City of Iowa City, 913 N.W.2d 1, 11–14 (Iowa 2018), which

unanimously overruled a case decided only one year prior. In TSB Holdings, we

explained at some length why the prior decision was wrong. See id. And that

decision was joined both by all members of the PPH II majority (except for two

justices who took no part) and by the PPH II dissenters. Id. at 19.

The professors urge that adhering to a precedent when the membership of

a court changes “refutes the cynical view that a supreme court is a political

institution guided by the justices’ personal values, rather than the law.” But we

know that the professors do not share that cynical view, so why do they ask us

to act in fear of it? Shouldn’t we instead follow our solemn oaths to uphold the

Iowa laws and constitution? In the end, court decisions should be—and we

believe are—judged by the strength of their reasoning, not by the identity of the

persons who wrote or joined them.13

The professors maintain that “[o]n appropriate occasions, a supreme court

may overrule a prior case to bring the law up to date.” Yet, constitutional law

isn’t just a matter of bringing the law up to date; sometimes it also involves

restoring original principles. “Constitutional interpretation is not Darwinian

13The professors implicitly acknowledge this point. They defend PPH II by making the

modest claim that “[t]he reasoning in [PPH II] is as good as or better than the reasoning in many

cases.”

45

evolution, and a decision of this court today is not superior to the decisions that

preceded it just because it is more recent.” Schmidt, 909 N.W.2d at 817.14

The professors also refer to a reliance interest, but their reference is to

Roe, which is forty-nine years old, rather than PPH II, which is four years old and

goes well beyond Roe. Reconsideration of Roe is not before us, nor could it be.

We believe the views of Justice Amy Coney Barrett, who was writing at the

time as a law professor, are worth quoting:

To be sure, partisan politics are not a good reason for overturning

precedent. But neither are they a good reason for deciding a case of

first impression. One who believes that an overruling reflects votes

cast based on political preference must believe that all cases (or at

least all the hot-button ones) are decided that way, for there would

be no reason for politics to taint reversals but not initial decisions.

If all such decisions are based on politics, there is no reason why

the precedent-- itself thus tainted--is worthy of deference. (Nor, for

that matter, would there be reason to accept the legitimacy of

judicial review.) Basic confidence in the Supreme Court requires the

assumption that, as a general matter, justices decide cases based

on their honestly held beliefs about how the Constitution should be

interpreted. If one is willing to make that assumption about the

decision of cases of first impression, one should also be willing to

make it about the decision to overrule precedent.

14Brown v. Board of Education, 347 U.S. 483 (1954), is a good example of a case that

overruled precedent and restored the rightful meaning of our Federal Constitution. The

Fourteenth Amendment had enacted to prevent state governments from discriminating against

Black Americans, yet it had been distorted so that it had become a license to discriminate. As

Professor Charles Black memorably said,

[I]f a whole race of people finds itself confined within a system which is set up and

continued for the very purpose of keeping it in an inferior station, and if the

question is then solemnly propounded whether such a race is being treated

“equally,” I think we ought to exercise one of the sovereign prerogatives of

philosophers—that of laughter.

Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 424 (1960).

46

Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev.

1711, 1729 (2013).

In conclusion, we think any stare decisis considerations are relatively

weak here because PPH II was a constitutional decision, it was decided only four

years ago, it has not been reaffirmed, and it was consciously based on the notion

that constitutional interpretation is subject to change.

D. Should PPH II Be Overruled? We now come to the question of whether

PPH II should be overruled. Perhaps a good place to start is with the plurality

opinion in Casey, where the Supreme Court declined to overrule Roe. The

plurality in Casey focused on several considerations. 505 U.S. at 855–59.

Although Roe had engendered opposition, it had in no sense proved practically

“unworkable.” Casey, 505 U.S. at 855. Also, over nearly two decades, people had

“ordered their thinking and living around that case.” Id. at 856. Additionally, Roe

had been expressly reaffirmed in 1983, ten years after it had been decided.

Casey, 505 U.S. at 858. And Roe doctrinally fell within a larger group of cases

that recognized the need to balance a State’s interest in the protection of human

life with individual liberty. Casey, 505 U.S. at 857.

None of those observations applies to PPH II. To begin with, we question

the workability of PPH II. The issue isn’t whether the result in PPH II is workable.

Clearly, it is possible to administer a rule that a 72-hour waiting period is not

allowed. The issue is whether the doctrine set forth in PPH II is workable. Here

we have doubts.

47

As used in PPH II, “fundamental right” means that any regulation of

abortion must target only women who would benefit from that particular

regulation—for example, in that case, “patients who are uncertain when they

present for their procedures.” PPH II, 915 N.W.2d at 243. Otherwise, the

regulation “sweeps with an impermissibly broad brush.” Id.

That’s an impossible-to-meet standard unless the point is to eliminate all

regulations governing abortion. It is exceedingly difficult to tailor any regulation

so it applies only to those who would benefit from that specific regulation. For

example, how would you know which gun purchasers might fail a background

check until you run the background check? Likewise, how do you know who is

truly uncertain and could benefit from additional information about pregnancy,

childbirth, and abortion until you have provided that information and given them

time to review it? Under PPH II, even a simple informed consent requirement

would be unconstitutional if it applied to all women seeking an abortion.

Needless to say, PPH II also calls into question the constitutionality of Iowa’s

parental notification law. See Iowa Code ch. 135L.

Normally, we allow laws to take effect, and then allow persons who are

adversely affected by those laws to bring “as applied” challenges. But PPH II

involved a facial challenge. 915 N.W.2d at 232. “[T]o succeed on a facial

challenge, the petitioner must prove a statute is ‘totally invalid and therefore,

“incapable of any valid application.” ’ ” Id. (quoting Santi v. Santi, 633 N.W.2d

312, 316 (Iowa 2001)). Thus, under PPH II, any abortion regulation is facially

unconstitutional for all purposes unless as drafted it contains every conceivable

48

necessary exception that the court can think of. See id. at 243 (listing various

exceptions missing from the 72-hour waiting period). That’s rational basis

deference in reverse.15

PPH II has no discernible endpoint until childbirth. See id. at 237 (defining

the fundamental right, without qualification, as “the ability to decide whether to

continue or terminate a pregnancy”). Any burden on abortion—even very late in

the pregnancy—must be narrowly tailored to promote a compelling state interest.

See id. at 244. Whereas Roe and Casey make clear that the constitutional right

to terminate a pregnancy ends at viability, PPH II dismisses that approach with

the statement, “We do not, and could not, endeavor to discern the precise

moment when a human being comes into existence.” Id. at 243.

Yet, after our court had said all these things in PPH II, we also proclaimed,

“[W]e do not today hold, that a woman’s right to terminate a pregnancy is

unlimited.” Id. at 239. But how then is it limited? PPH II doesn’t say, or even

suggest, a possible answer.16

Such an internally contradictory approach is unworkable.

15As discussed below, Florida also subjects abortion regulations to strict scrutiny based

on a specific privacy right that was added to the Florida Constitution in 1980. See Gainesville

Woman Care, LLC v. State, 210 So.3d 1243, 1246 (Fla. 2017). But in practice, Florida does not

follow PPH II’s approach of invalidating a law on its face unless every potential application of that

law furthers a compelling state interest. See State v. Gainesville Woman Care, LLC, 278 So. 3d

216, 222 (Fla. Dist. Ct. App. 2019) (reversing a summary judgment invalidating a 24-hour notice

requirement and explaining that “[f]or this facial challenge, the correct legal test is not whether

the 24-hour Law violates the constitutional rights of some women in some circumstances, but

whether it violates the rights of all women in all circumstances”).

16Today’s dissent defending PPH II offers no reassurance, either. Unlike PPH II, today’s

dissent does not even acknowledge that the State has a compelling interest in promoting human

life. See PPH II, 915 N.W.2d at 239 (“[T]he state has a compelling interest in promoting potential

life.”). No such language appears in today’s dissent.

49

Furthermore, one cannot say that people in Iowa have “ordered their

thinking and living” around PPH II. Casey, 505 U.S. at 856. In fact, as one of the

amici supporting Planned Parenthood writes, PPH II “did not change the status

quo.” PPH II invalidated a recently enacted 72-hour waiting period. That left the

situation for women seeking an abortion in Iowa as it had been before.

Also, PPH II has not been reaffirmed. That is not surprising since it was

decided only four years ago.

Doctrinally, PPH II stands virtually alone, both inside and outside Iowa.

PPH II found a fundamental right to an abortion where others had not: in the

due process clause as a right “implicit in the concept of ordered liberty.” PPH II,

915 N.W.2d at 237. While some other state supreme courts have found a

fundamental right to an abortion within their state constitution, as is discussed

below, they have done so based on one or more substantive constitutional

guarantees. Conversely, states that find a right to an abortion in a state

constitutional due process clause have gone no further than the undue burden

test. See id. at 254 (Mansfield, J., dissenting) (“[S]tates relying on the due process

clauses of their state constitutions typically have applied the undue burden

test.”).

In 2019, one year after PPH II, the Kansas Supreme Court recognized a

fundamental constitutional right to an abortion. Hodes & Nauser, MDs, P.A. v.

Schmidt, 440 P.3d 461, 502 (Kan. 2019) (per curiam). However, unlike our court,

it relied on the inalienable rights clause while specifically declining to rely on the

due process clause. See id. at 485–86. The Kansas Supreme Court explained its

50

hesitation to rely on the due process clause, highlighting the distinction between

substantive and procedural rights:

A final and notable language distinction between section 1

[the inalienable rights clause] and the Fourteenth Amendment

arises from another phrase found in the Amendment but not in

section 1: “without due process of law.” In other words, the text of

section 1 demonstrates an emphasis on substantive rights—not

procedural rights. In contrast, the Fourteenth Amendment’s use of

“the term ‘due process’ seem[s] to speak of procedural regularity.”

Currie, The Constitution in the Supreme Court: The First Hundred

Years, 1789–1888, at 272 (1985). Thus, section 1’s focus on

substantive rights removes from our calculus one of the criticisms

of Roe and other decisions of the United States Supreme Court

relying on substantive due process rights under the Fourteenth

Amendment.

Id. at 626–27.

Elsewhere, the story is similar. Minnesota has recognized a fundamental

right to an abortion under a combination of guarantees in the Minnesota

Constitution. Women of State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 19 (Minn.

1995). California has found a fundamental right to an abortion under California’s

constitutional privacy clause. Am. Acad. of Pediatrics v. Lungren, 940 P.2d 797,

819 (Cal. 1997). Likewise, Alaska has found a fundamental right to an abortion

encompassed within the right to privacy in the Alaska Constitution. Valley Hosp.

Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997); see Alaska

Const. art. I, § 22 (“The right of the people to privacy is recognized and shall not

be infringed.”). Montana has found a fundamental right to an abortion based on

a constitutional guarantee of individual privacy that has no counterpart in the

Iowa Constitution. Armstrong v. State, 989 P.2d 364, 382 (Mont. 1999); see Mont.

Const. art. II, § 10 (“The right of individual privacy is essential to the well-being

51

of a free society and shall not be infringed without the showing of a compelling

state interest.”). Tennessee, until the court’s decision was overturned by a

constitutional amendment, likewise relied on various grants of rights within the

Tennessee Constitution “more particularly stated than those stated in the federal

Bill of Rights.” Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1,

13–15 (Tenn. 2000), superseded by constitutional amendment, Tenn. Const.

art. I, § 36. New Jersey has found a fundamental right to an abortion within the

“natural and unalienable rights” clause of the New Jersey Constitution. Planned

Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620, 629, 638 (N.J. 2000). Florida

has pinpointed a fundamental right to an abortion within Florida’s constitutional

right to privacy, which was added to the Florida Constitution in 1980 and which

establishes the right of every person to “be let alone and free from governmental

intrusion into [one’s] private life.” Gainesville Woman Care, LLC v. State, 210

So. 3d 1243, 1246, 1252 (Fla. 2017) (alteration in original); see Fla. Const. art. I,

§ 23.17

Meanwhile, state courts focusing specifically on the due process clause

have overwhelmingly found that the right to an abortion in the state constitution

is no broader than the federal right (if it exists at all). See, e.g., Hope Clinic for

Women, Ltd. v. Flores, 991 N.E.2d 745, 757, 760 (Ill. 2013) (finding a due process

right to an abortion in the Illinois Constitution congruent with the federal right

17In Hope v. Perales, the New York Court of Appeals found a fundamental right to an

abortion under the due process clause of the New York Constitution. 634 N.E.2d 183, 186

(N.Y. 1994). But the court did not hold that the right was any broader than the right to an

abortion under the United States Constitution. See id. So as a practical matter, it was not

“fundamental” in the sense that PPH II used that term.

52

and rejecting the existence of a right to an abortion within the privacy clause);

Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 185

S.W.3d 685, 691–92 (Mo. 2006) (en banc) (per curiam) (applying the due process

clause of the Missouri Constitution as giving the same protection to a pregnant

woman recognized by Casey); Pro-Choice Miss. v. Fordice, 716 So. 2d 645, 655

(Miss. 1998) (en banc) (applying the undue burden test under the Mississippi

Constitution and noting that “[t]he abortion issue is much more complex than

most cases involving privacy rights”); Preterm Cleveland v. Voinovich, 627 N.E.2d

570, 584 (Ohio Ct. App. 1993) (“[W]e find no reason under the circumstances of

this case to find that the Ohio Constitution confers upon a pregnant woman a

greater right to choose whether to have an abortion or bear the child than is

conferred by the United States Constitution, as explained in the plurality opinion

of [Casey].”); see also Planned Parenthood Ariz., Inc. v. Am. Ass’n of Pro-Life

Obstetricians & Gynecologists, 257 P.3d 181, 188–90 (Ariz. Ct. App. 2011)

(applying the federal undue burden test under the Arizona Constitution even

though it contains an express privacy clause); Clinic for Women, Inc. v. Brizzi,

837 N.E.2d 973, 983–84 (Ind. 2005) (holding that Indiana’s inalienable rights

clause provides protection similar to the Casey undue burden test); Planned

Parenthood League of Mass., Inc. v. Att’y Gen., 677 N.E.2d 101, 103–04 (Mass.

1997) (explaining that Massachusetts does not follow federal abortion precedent

under the Massachusetts due process clause which has different wording, but

the reviewing court does engage in balancing and does not require the state to

advance a compelling state interest); State v. Koome, 530 P.2d 260, 263 (Wash.

53

1975) (en banc) (applying federal abortion precedent to strike down a Washington

statute under both federal and state due process).

So, our point is: State courts recognizing broader, “fundamental” abortion

rights have at least had textual grounds for doing so other than the due process

clause.

Not only does PPH II deviate from the approach taken by other states, but

it also departs from the approach taken by our court prior to 2018. Previously,

even when we deemed a right related to parenting fundamental and “implicit in

the concept of ordered liberty” for purposes of substantive due process, we

analyzed whether the governmental restriction “directly and substantially

intrude[d] upon” it. Hensler v. City of Davenport, 790 N.W.2d 569, 581, 583 (Iowa

2010) (recognizing that the right to control the parenting of a child is

fundamental). We explained that such fundamental rights are “not absolute.” Id.

at 583. As we put it, “Not every government action that relates in any way to a

fundamental liberty must be subjected to strict-scrutiny analysis.” McQuistion v.

City of Clinton, 872 N.W.2d 817, 833 (Iowa 2015) (stating that there is a

fundamental right to procreate). Instead, the alleged infringement would be

unconstitutional only if it had “a direct and substantial impact” on the

fundamental right. Id. (quoting State v. Seering, 701 N.W.2d 655, 663 (Iowa

2005), superseded by statute on other grounds, 2009 Iowa Acts ch. 119, § 3

(codified at Iowa Code § 692A.103 (Supp. 2009)), as recognized in In re T.H., 913

N.W.2d 578, 587–88 (Iowa 2018)); see also In re K.M., 653 N.W.2d 602, 608–09

(Iowa 2002) (using a blend of tests to uphold a statute that shifted the balance

54

in parental termination cases in favor of the best interests of the child and

against reunification).

In other words, what we followed pre-2018 with respect to rights to family,

procreation and child-rearing was something like the undue burden test of

Casey. The government could not unduly burden those rights; that would trigger

strict scrutiny. But it could take actions that affected the right without triggering

strict scrutiny so long as the action did not have a direct and substantial impact.

Cf. Casey, 505 U.S. at 877 (“A finding of an undue burden is a shorthand for the

conclusion that a state regulation has the purpose or effect of placing

a substantial obstacle in the path of a woman seeking an abortion of a nonviable

fetus.”).

Constitutional interpretation should begin with the constitutional text

itself. See State v. Wright, 961 N.W.2d 396, 402–04 (Iowa 2021) (interpreting the

Iowa Constitution by starting with the text and using “precedent, history,

custom, and practice” as aids to determine its meaning). We note that on the

specific topic of abortion, the Iowa Constitution is silent: if one were to search

the constitution’s text for terms such as “abortion” and “pregnancy,” it would

yield no results.18 Therefore, if a right to have an abortion is in our state’s

constitution, it must be encompassed in some more general textual source. In

PPH II, we named the due process clause as that broader source. 915 N.W.2d at

18The Roe Court, which found abortion to be a protected right because of a general right

to privacy, acknowledged, “The Constitution does not explicitly mention any right of privacy.”

410 U.S.113, 152 (1973); see also State v. Hartog, 440 N.W.2d 852, 855 (Iowa 1989) (noting that

“rights of privacy have been found in the shadows of specific constitutional provisions”).

55

232–33 (majority opinion). But, upon examination, the language of that provision

does not support PPH II’s ultimate holding.

Textually, there is no support for PPH II’s reading of the due process clause

as providing fundamental protection for abortion. Article I, section 9 states, “[N]o

person shall be deprived of life, liberty, or property, without due process of law.”

Iowa Const. art. I, § 9. Section 9 doesn’t speak in terms of absolutes. If liberty

cannot be limited without due process of law, the logical implication is that

liberty can be limited with due process of law. Certainly that conclusion seems

correct when there are important interests—such as life itself—on both sides.

Only one opinion in PPH II discussed the ratification debates on article I,

section 9. That was the dissenting opinion:

The Chairman of the Committee on the Bill of Rights, Mr. Ells,

explained to the convention that this clause had been

“transcribed . . . from” the United States Constitution, and that due

process means “no person shall be deprived of life, liberty or

property, without a legal proceeding based upon the principles of

the common law, and the constitution of the United States.” [The

Debates at 101–02.] The due process clause, in other words,

guarantees certain procedures. The idea of substantive due process

would have made no sense to our framers.

PPH II, 915 N.W.2d at 247 (Mansfield, J., dissenting).

Historically, there is no support for abortion as a fundamental

constitutional right in Iowa.19 As the PPH II dissent pointed out, abortion became

19PPH II did not even attempt to find historical support for a fundamental right to

abortion. The Kansas Supreme Court, to its credit, at least made an effort to articulate a

“historical and philosophical basis” for its fundamental-right holding. Hodes & Nauser, MDs,

P.A., 440 P.3d at 480. Its opinion quoted John Locke, Edward Coke, and William Blackstone as

evidence for natural rights to personal autonomy and bodily integrity. See, e.g., id. (quoting

Locke’s statement that “every Man has a Property in his own Person” and Edward Coke’s

observation “that an ordinance setting requirements on the clothes that certain merchants could

56

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.

Planned Parenthood doesn’t dispute this. Instead, it notes that the

common law only recognized abortion as a criminal offense after “quickening”—

when the mother first feels fetal movement. See Roe, 410 U.S. at 132; Abrams v.

Foshee, 3 Iowa (Clarke) 274, 278–80 (1856) (finding that an accusation that a

woman had an abortion could not be slander because pre-quickening abortions

were not a crime at common law and, in 1856, Iowa had no law prohibiting

abortion). But abortion at any stage of pregnancy had been criminalized by

statute in Iowa as early as 1843. See Iowa Rev. Stat. ch. 49, § 10 (Terr. 1843)

(“[E]very person who shall administer to any woman, pregnant with a child, any

medicine, drug, or substance whatever, or shall employ any other means with

intent thereby to destroy such child, and thereby cause its death, unless the

same shall be necessary to preserve the life of the mother, shall be deemed guilty

of manslaughter.”).

wear was against the law of the land ‘because it was against the liberty of the subject, for every

subject hath freedom to put his clothes to be dressed by whom he will’ ”).

But further digging into these sources reveals that the quoted jurists and philosophers

that heavily influenced American law would almost certainly not have considered abortion to be

included in an individual’s natural rights. See Skylar Reese Croy & Alexander Lemke, An

Unnatural Reading; The Revisionist History of Abortion in Hodes v. Schmidt, 32 U. Fla. J.L. & Pub.

Pol’y 71, 82–86 (2021). Locke, a physician, “explicitly condemned abortion.” Id. at 82. From a

medical ethics perspective, he considered abortion to be in the same vein as suicide. Id. at

82–83. Coke stated that an abortion after quickening was a serious misdemeanor. Id. at 84.

Blackstone believed an abortion after quickening to be manslaughter and stated, “An infant . . .

in the mother’s womb, is [s]uppo[s]ed in law to be born for many purpo[s]es.” Id. at 85–86

(alterations in original) (quoting 1 William Blackstone, Commentaries on the Laws of England

129–30 (1765)).

57

For whatever reason, the 1843 statute criminalizing abortion in Iowa did

not carry over in the codification that occurred in 1851. See Iowa Code ch. 138

(1851) (listing “offenses against the lives and persons of individuals” without

including an abortion-related crime). But in March 1858, as noted, the Iowa

legislature once again passed a law outlawing abortion. See 1858 Iowa Acts ch.

58, § 1 (codified at Revs. of 1860, Stats. of Iowa § 4221 (1860)). That law provided

criminal penalties for willfully using any means to procure a miscarriage at any

stage of pregnancy. Revs. of 1860, Stats. of Iowa § 4221. It stated,

[E]very person who shall willfully administer to any pregnant

woman, any medicine, drug, substance or thing whatever, or shall

use or employ any instrument or other means whatever, with the

intent thereby to procure the miscarriage of any such woman,

unless the same shall be necessary to preserve the life of such

woman, shall upon conviction thereof, be punished by

imprisonment in the county jail for a term of not exceeding one year,

and be fined in a sum not exceeding one thousand dollars.

Id.20

Planned Parenthood argues that this early ban on abortion simply

maintained the common law distinction between abortions before and after

quickening. But our first and only case to address this issue, State v. Fitzgerald,

interpreted the law to apply throughout pregnancy. 49 Iowa 260, 261 (1878). In

Fitzgerald, the defendant challenged the district court’s refusal “to instruct the

jury that the crime could not be committed upon a woman who was not quick

20Afew years after this law took effect, our court had to decide whether a woman

performing her own abortion could be convicted under section 4221. Hatfield v. Gano, 15 Iowa

177, 178 (1863). Although the prohibition applied to “every person,” we determined “that it was

the person who used the means with the pregnant woman to procure the abortion, and not the

woman herself, that the Legislature intended to punish.” Id.

58

with child.” Id. We rejected this argument, stating, “The statute makes no such

qualification. . . . The crime is complete if the attempt be made at any time during

pregnancy.” Id.

Planned Parenthood also makes the valid point that women’s rights were

quite limited in 1857 and have expanded since then. But even as women’s rights

expanded, the ban on abortion remained in place until Roe superseded it. See

Iowa Code § 701.1 (1973) (“If any person, with intent to produce the miscarriage

of any woman, willfully administer to her any drug or substance whatever, or,

with such intent, use any instrument or other means whatever, unless such

miscarriage shall be necessary to save her life, he shall be imprisoned in the

penitentiary for a term not exceeding five years, and be fined in a sum not

exceeding one thousand dollars.”).

Beyond its textual and historical flaws, PPH II is also flawed in its core

reasoning. Constitutions—and courts—should not be picking sides in divisive

social and political debates unless some universal principle of justice stands on

only one side of that debate. Abortion isn’t one of those issues. “Each side in the

debate is motivated by a serious, legitimate concern: on the one hand, a woman’s

ability to make decisions regarding her own body; on the other, human life.”

PPH II, 915 N.W.2d at 246 (Mansfield, J., dissenting). PPH II has a one-sided

quality to it. According to the majority, abortion advocates speak for “the very

heart of what it means to be free.” Id. at 237 (majority opinion). On the other

59

hand, abortion opponents are raising mere “moral scruples.” Id. at 244.21

Therefore, unsurprisingly, under the fundamental rights/strict scrutiny

approach taken in PPH II, there is no effort to balance: Having an abortion

without delay is deemed more important than preserving unborn life.

One remarkable characteristic of our society is that courts have been

successful leaders at times. By invoking first principles, they have spurred social

and political changes that received consensus support only after they were

mandated by court decisions. Brown v. Board of Education, 347 U.S. 483 (1954),

is one example of this phenomenon. In our state, Varnum v. Brien, 763 N.W.2d

862 (Iowa 2009), may be another. But no one suggests that any of the abortion

rulings have achieved this status. Our country remains as divided as ever on

abortion.

Consider also a defense of PPH II published in America’s most prestigious

law review. See Recent Case, State Constitutional Law—Abortion Law—Iowa

Supreme Court Applies Strict Scrutiny to Abortion Restriction.—Planned

Parenthood of the Heartland v. Reynolds, 915 N.W.2d 206 (Iowa 2018), 132 Harv.

L. Rev. 795, 799–802 (2018). What is striking is how little of substance the

21The dissent in PPH II further explained the majority’s one-sidedness:

[T]he majority uses the word “life” at times, but typically as part of the phrase

“promoting potential life.” This anodyne phrasing treats restrictions on abortion

as if they were analogous to tax credits for having more children. Elsewhere, the

majority characterizes Senate File 471 as based on “moral scruples” against

abortion. Here again, the majority’s language minimizes the anti-abortion

position. As a practical matter, it equates opposition to abortion with opposition

to gambling.

To be clear, many if not most abortion opponents view it as ending a life.

915 N.W.2d at 249 (Mansfield, J., dissenting).

60

authors can say on behalf of the PPH II decision. In the end, they praise PPH II

as a “laudable example of a state court’s contribution to the constitutional

discourse” because it “untethers Iowa from a weak and vulnerable federal

standard and provides a stronger layer of protection for abortion rights in a state

where abortion access is already limited.” Id. at 802. This is not an analytical

defense, it is a defense based purely on outcomes.

In summary, PPH II lacks textual and historical support. It is doctrinally

inconsistent with prior Iowa jurisprudence concerning family rights that followed

a balancing approach. Its rhetoric is one-sided. Its constitutional footing is

unsound. While it is true that some other states have provided heightened

protection for abortion rights, they have done so by invoking more relevant

substantive constitutional guarantees—such as the right of privacy—not a

procedural clause like due process.22

E. Is PPH II’s Equal Protection Discussion a Basis for Upholding the

Decision? PPH II also found that the 72-hour waiting period violated the equal

protection clause in article I, section 6. 915 N.W.2d at 244–46.23 Our treatment

22See PPH II, 915 N.W.2d at 254 (Mansfield, J., dissenting) (“Yet a crucial distinction is

that those states typically have explicit guarantees of privacy in their constitutions. And for the

most part, those privacy guarantees have been adopted only recently.”).

23PPH II also quoted article I, section 1, Iowa’s inalienable rights clause, and seemed to

characterize it as part of our equal protection clause. 915 N.W.2d at 244. Typically, we use the

term “equal protection clause” to refer to article I, section 6. See, e.g., LSCP, LLLP v. Kay-Decker,

861 N.W.2d 846, 858 n.6 (Iowa 2015). Regardless, with the exception of one case involving a

limit on common law nuisance claims, Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004),

we have not recognized in any case decided in the last century that the inalienable rights clause

carries any independent force. Instead, we have said that it replicates the rational basis test:

Where liberty or property rights are allegedly infringed by a statute or

ordinance, our inalienable rights cases have held that, even if the plaintiff’s

asserted interest is within the scope of the inalienable rights clause, the rights

61

of equal protection was brief. We discussed two cases from 1872 and 1910 that

took a primeval view of women’s rights. See id. at 244–45. We then discussed

two cases from 1982 and 1996 that took a more modern view. See id. at 245. We

quoted from Justice Ginsburg’s famous law review article on Roe, written before

she became a justice. See id. (quoting Ruth Bader Ginsburg, Some Thoughts on

Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985)).

We then concluded that restrictions on abortion deny women “the right . . . to be

equal participants in society.” Id. “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.” Id.

On reflection, there are flaws in this analysis. The text of article I, section 6

requires that general laws “shall have a uniform operation” and the general

assembly “shall not grant to any citizen or class of citizens, privileges or

immunities, which, upon the same terms shall not equally belong to all citizens.”

Iowa Const. art. I, § 6. By its terms, this language is directed at laws that on

their face treat some citizens differently than others. The favorable cases on

which the majority relied dealt with laws that could have treated men and women

the same and didn’t. See PPH II, 915 N.W.2d at 244–45 (citing a case that

guaranteed by the provision are subject to reasonable regulation by the state in

the exercise of its police power. This formulation, of course, is virtually identical

to the rational-basis due process test or equal protection tests under the Federal

Constitution.

City of Sioux City v. Jacobsma, 862 N.W.2d 335, 352 (Iowa 2015) (citations omitted).

62

involved a military academy that did not admit women, United States v. Virginia,

518 U.S. 515 (1996), and a case that involved a nursing program that did not

admit men, Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982)).

PPH II skipped a step in the equal protection analysis—the first one. Under

our well-established equal protection precedent, before finding a violation, we

first needed to find that women were similarly situated to men as it related to

the purposes of the law. See, e.g., State v. Treptow, 960 N.W.2d 98, 104 (Iowa

2021) (“The first step in our equal protection analysis is to determine whether

the challenged law makes a distinction between similarly situated individuals

with respect to the purposes of the law.”). Women undeniably are not. Planned

Parenthood’s brief acknowledges as much, stating, “Women and men are not

similarly situated in terms of the biological capacity to be pregnant . . . .”

As the PPH II dissent put it,

Equal protection requires treating similarly situated people alike,

see, e.g., Tyler v. Iowa Dep’t of Revenue, 904 N.W.2d 162, 166 (Iowa

2017), yet the very gist of the majority’s argument is that women are

situated differently from men. They alone bear the burdens of

pregnancy. The majority cites no other court that has accepted this

line of thinking—i.e., that an abortion restriction per se

discriminates against all women while unconstitutionally favoring

men.

915 N.W.2d at 258 (Mansfield, J. dissenting).

The relationship between abortion and women’s quest for equal

participation in society is more complicated than PPH II recognized. See, e.g.,

Kristina M. Mentone, When Equal Protection Fails: How the Equal Protection

Justification for Abortion Undercuts the Struggle for Equality in the Workplace, 70

Fordham L. Rev. 2657, 2659 (2002) (“The equal protection argument for abortion

63

fails to truly equalize women by intimating that, for women to be fully equal

members of society and to participate more fully in the professions, they must

be able to choose not to bear children. This reasoning may help to equalize

women who choose not to be mothers, but it perpetuates the view that mothers

cannot be truly equal because motherhood interferes with their professional

success. Thus, the equal protection argument for abortion aggravates the

work/family conflict for mothers.” (footnotes omitted)).

Finally, PPH II’s equal protection discussion was to some extent an

afterthought that did no real work in the actual legal analysis. We applied the

fundamental rights/strict scrutiny branch of equal protection review. See PPH II,

915 N.W.2d 245–46 (majority opinion). And why did we do so? Because we had

already found that the right to an abortion was protected as a fundamental right

by substantive due process. See id.

For these reasons, we conclude that PPH II’s equal protection rationale

cannot independently sustain that decision and does not alter our determination

today to overrule it.

F. How Should We Dispose of This Appeal? The State moved for

summary judgment only on count I of the petition, which alleged that HF 594

violates the single-subject rule. For the reasons stated in part IV.A, we conclude

that this claim fails as a matter of law.

The State did not move for summary judgment on Planned Parenthood’s

claims in counts II, III, and IV of the petition. Those allege that the 24-hour

waiting period enacted by HF 594 violates article I, section 9 (due process);

64

article I, sections 1 and 6 (equal protection); and article I, section 1 (inalienable

rights) respectively. In lieu of moving for summary judgment itself, the State

simply resisted Planned Parenthood’s motion for summary judgment on counts

II and III based on issue preclusion.

On appeal, the State does ask that PPH II be overruled. That issue is fully

briefed by the State and by Planned Parenthood. As we have explained in

part IV.B, that issue is intertwined with the question of whether issue preclusion

applies here. If the basic legal holding of PPH II does not stand, there is no basis

to apply issue preclusion in this case.

For the reasons we have discussed in parts IV.C–E, we conclude that PPH

II should be overruled and that the grant of summary judgment based on issue

preclusion should be reversed as to counts II and III.

The State does not take a position on whether the undue burden test or

the rational basis test should replace PPH II’s fundamental rights/strict scrutiny

standard. In the only paragraph of its briefing devoted to this issue, the State

says that when strict scrutiny is not appropriate, the Iowa Constitution

“typically” requires that a statute need only meet the rational basis test but then

adds that “this Court could choose to follow Casey.” Quoting Casey, the State

observes that “[t]he undue-burden test could provide an ‘appropriate means of

reconciling the State’s interest with the woman’s constitutionally protected

liberty.’ ” Casey, 505 U.S. at 876. Notably, we applied the undue burden test in

PPH I based on the State’s concession for purposes of that case that the Iowa

65

Constitution afforded a right to abortion consistent with the federal standard.

865 N.W.2d at 254.

We conclude that we should not go where the parties do not ask us to go.

See Feld v. Borkowski, 790 N.W.2d 72, 78 (Iowa 2010) (“Our obligation on appeal

is to decide the case within the framework of the issues raised by the parties.”).

That is, we should not engage in “freelancing under the Iowa Constitution

without the benefit of an adversarial presentation.” See PPH II, 915 N.W.2d at

255 n.11 (Mansfield, J., dissenting) (quoting State v. Tyler, 830 N.W.2d 288, 299

(Iowa 2013)).

It is true that an amicus curiae asks us to specifically hold that the

24-hour waiting period is subject to rational basis review. But normally we do

not allow amici curiae to raise new issues. Iowa Assn. of Bus. & Indus. v. City of

Waterloo, 961 N.W.2d 465, 476 (Iowa 2021). Planned Parenthood has not briefed

the issue, so there is no adversarial briefing. Cf. id. (reaching an argument raised

by an amicus where the opposing party also briefed it so there was “a fully

developed adversarial presentation on the issue”).24 Also, because of the

24The 2017 Godfrey case is another recent example where we declined to reach a legal

issue that an amicus urged us to decide, instead leaving that issue in the first instance for

briefing by the parties before the district court, for district court consideration and

determination, and ultimately for our review. 898 N.W.2d 844. There, we held that the Iowa

Constitution allowed direct claims for violations of due process rights. Id. at 847, 880. Amici

curiae urged us to decide whether the plaintiff even had a viable due process claim under the

law of Iowa. See id. at 898 (Mansfield, J., dissenting). We declined to decide that issue, stating

that “we take no view on the merits of any due process claim raised in this case.” Id. at 876

(majority opinion). As we put it, “We emphasize our holding is based solely on the legal

contentions presented by the parties.” Id. at 880.

Four years later, after the district court had ruled that the plaintiff had a legally viable

due process claim and a jury had awarded damages, we reached the legal question we had

deferred and reversed the district court unanimously. See Godfrey v. State, 962 N.W.2d 84, 117

66

substantive differences between the undue burden test and the rational basis

test, deciding this issue could result in granting the State more relief than it

requested on appeal. It is one thing to consider an additional argument, another

to grant additional relief not sought by the appellant.

Lastly, the United States Supreme Court is expected to decide an

important abortion case this term. See Dobbs, 141 S. Ct. 2619. That case could

decide whether the undue burden test continues to govern federal constitutional

analysis of abortion rights. We expect the opinions in that case will impart a

great deal of wisdom we do not have today. Although we take pride in our

independent interpretation of the Iowa Constitution, often our independent

interpretations draw on and contain exhaustive discussions of both majority and

dissenting opinions of the United States Supreme Court.

We do not prejudge the position our court will take. We agree with the

PPH II majority that “[a]utonomy and dominion over one’s body go to the very

heart of what it means to be free.” 915 N.W.2d at 237 (majority opinion). We also

agree that “being a parent is a life-altering obligation that falls unevenly on

women in our society.” Id. at 249 (Mansfield, J., dissenting). Yet, we must

disapprove of PPH II’s legal formulation that insufficiently recognizes that future

human lives are at stake—and we must disagree with the views of today’s dissent

that the State has no legitimate interest in this area.

(Iowa 2021). We held that the plaintiff as a matter of law had no due process claim and vacated

the award of damages. Id. at 113–14, 117; see also id. at 149–50 (Appel, J., concurring in part

and dissenting in part).

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V. Conclusion.

For the foregoing reasons, we reverse the judgment of the district court

and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Waterman and Oxley, JJ., join this opinion, McDonald and McDermott,

JJ., join this opinion as to parts II, III, and IV.A–E, and Christensen, C.J., joins

this opinion as to parts II, III, and IV.A–B. McDermott, J., files an opinion

concurring in part and dissenting in part, in which McDonald, J., joins.

Christensen, C.J., files an opinion concurring in part and dissenting in part, in

which Appel, J., joins as to parts I–II. Appel, J., files a dissenting opinion.

68

#21–0856, Planned Parenthood of the Heartland, Inc. v. Reynolds

McDERMOTT, Justice (concurring in part and dissenting in part).

I join almost all parts of the court’s opinion, including its resolution of the

plaintiffs’ single-subject challenge and issue preclusion claim, and its overruling

of Planned Parenthood of the Heartland v. Reynolds (PPH II), 915 N.W.2d 206,

220–21 (Iowa 2018). But I dissent from my colleagues’ remand directing the

district court to apply an “undue burden” standard, subject (apparently) to the

standard being “litigated further” by the parties. In my view, we should

emphatically reject—not recycle—Casey’s moribund undue burden test and

instead direct the district court to apply the rational basis test to the plaintiffs’

constitutional challenge.

Lest we forget, we already have well-established tiers of constitutional

scrutiny for the type of challenge presented in this case. When someone brings

a claim alleging a violation of a due process right as the plaintiffs do in this case,

the nature of the individual right at stake dictates the constitutional test that

the court applies. If the government action implicates a “fundamental” right or

classifies people “on the basis of race, alienage, or national origin,” we apply the

strict scrutiny test and determine whether the government’s action is narrowly

tailored to serve a compelling government interest. Sanchez v. State, 692 N.W.2d

812, 817 (Iowa 2005). But if the right at stake is not a fundamental right, then

we apply the rational basis test and determine whether the law is “rationally

related to a legitimate state interest.” Id. at 817–18 (quoting City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).

69

A “fundamental right,” as we apply that term in our constitutional

analysis, doesn’t simply mean “important.” King v. State, 818 N.W.2d 1, 26 (Iowa

2012). To qualify as a fundamental right, the alleged right at issue must

objectively be “deeply rooted” in our “history and tradition” and “implicit in the

concept of ordered liberty.” Hensler v. City of Davenport, 790 N.W.2d 569, 581

(Iowa 2010) (quoting Chavez v. Martinez, 538 U.S. 760, 775 (2003)). Whether

abortion is deeply rooted in our history and tradition determines whether it’s a

fundamental right and thus whether it’s protected by the Iowa Constitution. It

isn’t for us, as justices on a court, to decide whether the Iowa Constitution should

provide a right to abortion; we must decide whether the Iowa Constitution in fact

does provide a right to abortion. “[T]he rule of law is in unsafe hands when courts

cease to function as courts and become organs for control of policy.” Justice

Robert H. Jackson, The Struggle for Judicial Supremacy 322 (1941).

As the majority opinion thoroughly describes, abortion rights weren’t

rooted at all in our state’s history and tradition, let alone “deeply” rooted. The

deep roots that exist are, in fact, of common law and statutory prohibition in

favor of protecting all life. As this court explained around the time of Iowa’s

founding:

The common law is distinguished, and is to be commended,

for its all-embracing and salutary solicitude for the sacredness of

human life and the personal safety of every human being. This

protecting, paternal care, enveloping every individual like the air he

breathes, not only extends to persons actually born, but, for some

purposes, to infants in ventre sa mere. The right to life and to

personal safety is not only sacred in the estimation of the common

law, but it is inalienable. . . . The common law stands as a general

70

guardian holding its ægis to protect the life of all. Any theory which

robs the law of this salutary power is not likely to meet with favor.

State v. Moore, 25 Iowa 128, 135–36 (1868) (citation omitted). Abortion is not a

fundamental right protected under the Iowa Constitution.

Yet having declared this, and thus that the strict scrutiny test that the

district court applied under PPH II isn’t the correct constitutional standard, my

colleagues remand the case with directions to the district court to apply “the

Casey undue burden test.” This test, of course, originates from the United States

Supreme Court’s plurality opinion in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 845–46 (1993) (plurality opinion). In

Casey, the Supreme Court reaffirmed several propositions of the holding in Roe

v. Wade, 410 U.S. 113 (1973), including that the Constitution protects a right to

an abortion before “fetal viability” (referring to the date the unborn can survive

outside the womb) “without undue interference from the State.” Id. at 846. Casey

further declares that the state, from the start of the pregnancy, possesses a

legitimate interest in protecting the health of the mother and the life of the

unborn, and that the state may restrict abortions after viability if the abortion

regulation contains exceptions for pregnancies endangering the mother’s life or

health. Id. Under Casey’s undue burden test, an abortion regulation will be held

unconstitutional if “its purpose or effect is to place a substantial obstacle in the

path of a woman seeking an abortion before” viability. Id. at 878.

The three-justice plurality in Casey attempted to salvage the “essential

holding” in the Court’s opinion in Roe that abortion ranks as a fundamental right

while distancing itself from much of Roe’s actual constitutional analysis. Id. at

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869–78. In Roe, the Court stitched together several rights in the Bill of Rights

that the Court described as having created “zones of privacy” and then held that

a right to an abortion fell within these “zones.” Roe, 410 U.S. at 152–53. Roe’s

constitutional analysis has received criticism from academics and jurists across

the ideological spectrum. See, e.g., Akhil Reed Amar, Foreward: The Document

and the Doctrine, 114 Harv. L. Rev. 26, 110 (2000) (noting “it is hardly a state

secret that Roe’s exposition was not particularly persuasive, even to many who

applauded its result”); John Hart Ely, The Wages of Crying Wolf: A Comment on

Roe v. Wade, 82 Yale L.J. 920, 947 (1973) (concluding that Roe “is bad because

it is bad constitutional law, or rather because it is not constitutional law and

gives almost no sense of an obligation to try to be”); Ruth Bader Ginsberg, Some

Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev.

375, 376 (1985) (concluding that the Roe Court “presented an incomplete

justification for its action”). The Casey plurality abandoned Roe’s “zones of

privacy” analysis in favor of a “liberty” interest arising under the due process

clause of the Fourteenth Amendment. 505 U.S. at 846. The federal constitutional

test that arose from the Casey plurality’s efforts—the undue burden test—is thus

a creature of unusual and contentious origin.

As the Casey dissenters predicted, the undue burden test has vexed courts

trying to apply it. The undue burden test requires judges to determine whether

the abortion regulation will “prevent” or “deter” a “significant number of women

from obtaining an abortion.” Id. at 893–94. But the test offers no guidance on

how much prevention or deterrence will cause an abortion regulation to violate

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the Constitution. Many states have passed abortion regulations in the years

since Casey endeavoring to achieve the enigmatic balance of “due” and “undue”

burdens. Scores of court battles with frequently varying outcomes have followed.

See, e.g., Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 171 (4th Cir. 2000)

(holding that abortion clinic licensing requirements did not impose an undue

burden); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2318 (2016)

(holding that surgical center requirements for abortion providers imposed an

undue burden); A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d

684, 692 (7th Cir. 2002) (holding that a mandatory second visit did not impose

an undue burden); Planned Parenthood of Del. v. Brady, 250 F. Supp. 2d 405,

410 (D. Del. 2003) (holding that a mandatory 24-hour waiting period imposed

an undue burden where the statute didn’t explicitly provide an exception for

maternal medical emergencies); Whole Woman’s Health v. Paxton, 10 F.4th 430,

451 (5th Cir. 2021) (holding that a 24-hour waiting period caused by a drug

injection intended to ensure “a less brutal pregnancy termination” did not

impose an undue burden). In Stenberg v. Carhart, members of Casey’s own

plurality that created the undue burden standard disagreed about how to apply

the test to a partial-birth abortion regulation. 530 U.S. 915, 947–51 (2000)

(O’Connor, J., concurring); id. at 956–79 (Kennedy, J., dissenting). The undue

burden test has proved, from its inception, to be an unworkable standard for

courts to apply.

The “inherently standardless nature” of the undue burden test opens wide

the gate for judges to inject their own policy preferences in deciding whether a

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particular restriction creates an undue burden to getting an abortion. Casey,

505 U.S. at 992 (Scalia, J., concurring in the judgment in part and dissenting in

part). How “undue” a burden might be “depends heavily on which factors the

judge considers and how much weight” the judge assigns them. June Med.

Servs., L.L.C. v. Russo, LLC, 140 S. Ct. 2103, 2180 (2020) (Gorsuch, J.,

dissenting) (quoting Crawford v. Washington, 541 U.S. 36, 63 (2004)). An undue

burden standard inevitably leaves courts unable to provide predictability,

consistency, or coherence in its application. Regardless of outcome, the rule of

law inevitably loses when courts are made to attempt the undue burden test’s

balancing act. We need not adopt it in Iowa, and we should not adopt it in Iowa.

Again, we already have coherent, well-established tiers of review that we

routinely apply when analyzing whether a regulation infringes constitutional due

process rights. The waiting period statute challenged in this case implicates no

suspect classifications such as race, alienage, or national origin. See Sanchez,

692 N.W.2d at 817. And as discussed, abortion is not a fundamental right. When

“no suspect class or fundamental right is at issue, we apply the rational basis

test.” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 458 (Iowa

2013). The court should apply the rational basis test in analyzing the plaintiffs’

challenge to the abortion regulation in this case.

Statutes are presumed constitutional, and we will not declare something

unconstitutional under the rational basis test unless it “clearly, palpably, and

without doubt infringe[s]” a constitutional right. Residential & Agric. Advisory

Comm., LLC v. Dyersville City Council, 888 N.W.2d 24, 50 (Iowa 2016) (alteration

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in original) (quoting Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 8

(Iowa 2004)). Plaintiffs who challenge a statute under the rational basis test bear

“a heavy burden” to show that the state’s action is unconstitutional. Racing Ass’n

of Cent. Iowa, 675 N.W.2d at 8. The state “is not required or expected to produce

evidence to justify its legislative action.” Ames Rental Prop. Ass’n v. City of Ames,

736 N.W.2d 255, 259 (Iowa 2007). A court need only find a “realistically

conceivable” basis for the statute advancing a legitimate state interest.

McQuistion v. City of Clinton, 872 N.W.2d 817, 831–32 (Iowa 2015). And that

basis need not be supported by evidence in the traditional sense:

“[A] legislative choice is not subject to courtroom factfinding and

may be based on rational speculation unsupported by evidence or

empirical data.” A statute is presumed constitutional and “[t]he

burden is on the one attacking the legislative arrangement to

negative every conceivable basis which might support it,” whether

or not the basis has a foundation in the record.

Baker v. City of Iowa City, 867 N.W.2d 44, 57–58 (Iowa 2015) (alterations in

original) (quoting Heller v. Doe by Doe, 509 U.S. 312, 319–21 (1993)). Contrary

to the view expressed by the dissent, respect for and preservation of prenatal life

at all stages of development is a legitimate state interest. See Moore, 25 Iowa at

135–36.

Rather than directing the district court to apply our well-established

rational basis test, a plurality of this court directs the district court to apply the

undue burden test. Yet even as to the application of the undue burden test my

colleagues inject uncertainty, stating that although Casey’s undue burden test

as applied in PPH I provides the governing standard, “the legal standard may also

be litigated further.” But it’s our duty to decide and declare the applicable law in

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state constitutional matters. See State v. Ochoa, 792 N.W.2d 260, 267 (Iowa

2010) (stating that “a state supreme court cannot delegate to any other court the

power to engage in authoritative constitutional interpretation under the state

constitution”). It’s our function to decide the constitutional standard necessary

for the resolution of this case on remand. See Nehring v. Smith, 49 N.W.2d 831,

837 (Iowa 1952). “Litigants,” we have said, “should not unnecessarily be put to

the expense and delay of two appeals to ascertain our view upon a vital issue.”

Id.

The plurality’s undue-burden-subject-to-further-litigation test to be

applied on remand leaves many questions unanswered. For instance, will the

State need to make an extensive evidentiary showing that the statute places a

“due” measure of burden on abortion to prevail? Will the plaintiffs, conversely,

need to make an extensive evidentiary showing that the statute’s waiting

period crosses some unfixed threshold into the realm of “undue”? These

evidentiary-burden questions are answered—definitively—with a remand to

apply the rational basis test, under which the plaintiffs would need to prove that

the law doesn’t serve any conceivable legitimate state interest or isn’t a

reasonable way to advance that interest.

Overruling a precedent always introduces some confusion. But we only

magnify that confusion by requiring the district court to apply a nebulous test

that practically demands that judges read in their own views instead of applying

a time-tested standard with doctrinal stability as we find with the rational basis

test. Even the most well-intentioned judge attempting to apply the undue burden

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standard will not be able to overcome “the underlying fact that the concept has

no principled or coherent legal basis.” Casey, 505 U.S. at 987 (Scalia, J.,

dissenting). As a constitutional test, it generates answers so subjective as to

make Hermann Rorschach envious, presenting not so much an exercise in

constitutional interpretation as imagination.

I thus respectfully dissent from those parts of the opinion ordering the

application of an undue burden standard (or that the standard be further

litigated) and would remand the case for further proceedings only after having

made clear that the constitutional test to be applied is rational basis review.

McDonald, J., joins this concurrence in part and dissent in part.

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#21–0856, Planned Parenthood of the Heartland, Inc. v. Reynolds

CHRISTENSEN, Chief Justice (concurring in part and dissenting in part).

“[The doctrine of] stare decisis can fairly be characterized as the workhorse

of constitutional decisionmaking. The doctrine has its greatest bite, however,

when it constrains a justice from deciding a case the way she otherwise would.”

Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev.

1711, 1714 (2013) (footnote omitted) [hereinafter Coney Barrett]. That is the

decision that our court faces today.

I join the majority’s holdings that the challenged legislation does not

violate the single-subject rule and that issue preclusion does not prevent our

court from reviewing this case. Out of respect for stare decisis, I cannot join the

majority’s decision to overrule Planned Parenthood of the Heartland v. Reynolds

(PPH II), 915 N.W.2d 206 (Iowa 2018), because I do not believe any special

justification “over and above the [majority’s] belief ‘that the precedent was

wrongly decided’ ” warrants such a swift departure from the court’s 2018

decision. Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455–56 (2015) (quoting

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).

I. Stare Decisis in Constitutional Cases.

“Stare decisis—in English, the idea that today’s Court should stand by

yesterday’s decisions—is ‘a foundation stone of the rule of law.’ ” Id. at 455

(emphasis omitted) (quoting Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,

798 (2014)). “From the very beginnings of this court, we have guarded the

venerable doctrine of stare decisis and required the highest possible showing

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that a precedent should be overruled before taking such a step.” Brewer-Strong

v. HNI Corp., 913 N.W.2d 235, 249 (Iowa 2018) (quoting McElroy v. State,

703 N.W.2d 385, 394 (Iowa 2005)). Although it is not unyielding, stare decisis

effectively operates as the default course in judicial decision-making “because it

promotes the evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.” Janus v. Am. Fed’n of State, Cnty.,

& Mun. Emps., Council 31, 138 S. Ct. 2448, 2478 (2018) (quoting Payne v.

Tennessee, 501 U.S. 808, 827 (1991)); see also State v. Brown, 930 N.W.2d 840,

854 (Iowa 2019) (discussing the importance of stare decisis). It is also vital to

“maintaining public faith in the judiciary as a source of impersonal and reasoned

judgments.” Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970).

The legitimacy of judicial review hinges in part on the public perception

that we are applying the rule of law regardless of our personal preferences

instead of merely engaging in judicial policymaking. “If courts are viewed as

unbound by precedent, and the law as no more than what the last Court said,

considerable efforts would be expended to get control of such an

institution—with judicial independence and public confidence greatly

weakened.” Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication,

88 Colum. L. Rev. 723, 753 (1988). Ultimately, stare decisis is “no doctrine at

all” if we ignore precedent simply because we disapprove of it on the merits.

Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring in

part and concurring in judgment).

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Since 2018, the makeup of our court has significantly changed with the

appointment of four new justices to replace outgoing justices. Coincidentally, all

four outgoing justices were part of the 5–2 majority that recognized a

fundamental right to decide whether to continue or terminate a pregnancy in the

2018 case, which the State asks us to overrule just four years later. See generally

PPH II, 915 N.W.2d 206. Of the three justices who remain on our court from that

2018 decision, two dissented and only one joined the majority in PPH II. Id. at

246 (Mansfield, J., dissenting, joined by Waterman, J.).

This rather sudden change in a significant portion of our court’s

composition is exactly the sort of situation that challenges so many of the values

that stare decisis promotes concerning stability in the law, judicial restraint, the

public’s faith in the judiciary, and the legitimacy of judicial review. As

then-Professor Amy Coney Barrett proclaimed, stare decisis “serves as an

intertemporal referee, moderating any knee-jerk conviction of rightness by

forcing a current majority to advance a special justification for rejecting the

competing methodology of its predecessor.” Coney Barrett, 91 Tex. L. Rev. at

1723. This is not to say that we may never overrule precedent that is clearly

incorrect because we are worried about the public’s perception of our decision

in relation to the change in our court’s makeup. See Miller v. Westfield Ins.,

606 N.W.2d 301, 306 (Iowa 2000) (en banc) (“[S]tare decisis does not prevent the

court from reconsidering, repairing, correcting or abandoning past judicial

announcements when error is manifest . . . .”). In fact, just last term, we

overturned this court’s 2017 holding that article I, section 8 of the Iowa

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Constitution required a search warrant for a breathalyzer test of an intoxicated

boater because the 2017 decision was “manifestly erroneous.” State v. Kilby,

961 N.W.2d 374, 378 (Iowa 2021) (overruling State v. Pettijohn, 899 N.W.2d 1

(Iowa 2017)).

“[T]he Court’s power to overrule is vital for maintaining constitutionalism

by correcting mistakes and updating the law” and is also “essential to the

constitutional system’s continuing legitimacy.” Steven J. Burton, The Conflict

Between Stare Decisis and Overruling in Constitutional Adjudication, 35 Cardozo

L. Rev. 1687, 1697 (2014). But we must only use this power when there is a

“ ‘special justification’[ ]over and above the belief ‘that the precedent was wrongly

decided.’ ” Kimble, 576 U.S. at 455–56 (quoting Halliburton Co., 573 U.S. at 266);

see also Book v. Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015)

(“Stare decisis alone dictates continued adherence to our precedent absent a

compelling reason to change the law.”). That special justification existed last

term when we decided in Kilby to overrule Pettijohn. See Kilby, 961 N.W.2d at

378–83. I cannot yet say the same in this case.

Two members of today’s majority dissented in PPH II. See PPH II,

915 N.W.2d at 246. They believed PPH II was wrongly decided then, and little has

changed in the four years since PPH II. But the fact that little has changed in the

four years since PPH II is precisely why I cannot join the majority in holding

PPH II was so wrongly decided that we must already overrule it. In summary, I

believe it is too soon to conclude that the strict scrutiny standard established for

abortion challenges under the Iowa Constitution in 2018 “has proven to be

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intolerable simply in defying practical workability” or that the facts or related

principles of law have so changed “as to have left the old rule no more than a

remnant of abandoned doctrine” or “to have robbed the old rule of significant

application or justification.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 854–55 (1992) (plurality opinion).

II. The Merits of Stare Decisis in this Case.

When we reexamine a prior holding, we analyze “a series of prudential and

pragmatic considerations designed to test the consistency of overruling a prior

decision with the ideal of the rule of law, and to gauge the respective costs of

reaffirming and overruling a prior case.” Id. at 854. These considerations include:

whether the rule has proven to be intolerable simply in defying

practical workability, whether the rule is subject to a kind of reliance

that would lend a special hardship to the consequences of overruling

and add inequity to the cost of repudiation, whether related

principles of law have so far developed as to have left the old rule no

more than a remnant of abandoned doctrine, or whether facts have

so changed, or come to be seen so differently, as to have robbed the

old rule of significant application or justification.

Id. at 854–55 (citations omitted). The Supreme Court recently reiterated these

considerations in 2018 when it identified “the quality of [the opinion’s] reasoning,

the workability of the rule it established, its consistency with other related

decisions, developments since the decision was handed down, and reliance on

the decision” as relevant factors in deciding whether to overrule a prior decision.

Janus, 138 S. Ct. at 2478–79. While PPH II’s newness weighs in favor of

overruling it because it is not “subject to a kind of reliance that would lend a

special hardship to the consequences of overruling,” the considerations

cumulatively weigh in favor of adherence. Casey, 505 U.S. at 854.

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The majority begins by questioning the workability of PPH II, reasoning the

strict scrutiny standard applied in PPH II is a virtually “impossible-to-meet”

standard because “[i]t is exceedingly difficult to tailor any regulation so it applies

only to those who would benefit from that specific regulation.” While that may

prove true, there has not been enough time to determine one way or the other

whether the standard is unworkable. This is our first opportunity to consider a

constitutional challenge to an abortion regulation since PPH II.

“Unworkability signals that a precedent cannot be logically applied, even

by those who agree with the substance of the original opinion,” not that a

precedent is substantively flawed. Mary Ziegler, Taming Unworkability Doctrine:

Rethinking Stare Decisis, 50 Ariz. St. L.J. 1215, 1254 (2018); see also Janus,

138 S. Ct. at 2481 (concluding the precedent in question was unworkable

because the precedent’s “line between chargeable and nonchargeable union

expenditures has proved to be impossible to draw with precision”); Kimble,

576 U.S. at 459 (holding challenged precedent had not proved unworkable

because “[t]he decision is simplicity itself to apply”). Notably, other state courts

have had no problem logically applying strict scrutiny to their review of abortion-

related regulations, including reviews of abortion waiting periods. See Valley

Hosp. Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997);

Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1254 (Fla. 2017); Hodes

& Nauser, MDs, P.A. v. Schmidt, 440 P.3d 461, 494, 502 (Kan. 2019) (per curiam);

Women of the State of Minn. ex rel. Doe v. Gomez, 542 N.W.2d 17, 31 (Minn.

1995); Armstrong v. State, 989 P.2d 364, 373–74, 384–85 (Mont. 1999). For

83

example, Florida has been applying strict scrutiny to abortion regulations since

1989 without undue difficulty in various cases. See Gainesville Woman

Care, LLC, 210 So. 3d at 1253–55 (discussing Florida’s history of cases applying

strict scrutiny to abortion regulations). Likewise, Montana has recognized the

fundamental right of “procreative autonomy,” which encompasses “a woman’s

moral right and moral responsibility to decide, up to the point of fetal viability,

what her pregnancy demands of her in the context of her individual values, her

beliefs as to the sanctity of life, and her personal situation” since 1999.

Armstrong, 989 P.2d at 377. In doing so, the Montana Supreme Court, too, held

that any legislation infringing on this right must meet strict scrutiny. Id. at 375

(explaining that the Montana Constitution’s right to procreative autonomy

requires the government to demonstrate a compelling state interest for infringing

upon that right).

Like those courts, our court proved capable of logically applying the strict

scrutiny standard to the 72-hour waiting period at issue in PPH II and nothing

suggests our district courts have struggled to apply PPH II. Strict scrutiny is an

exceedingly difficult standard to meet regardless of the fundamental right at

issue because it starts with the presumption that the challenged law is invalid.

Planned Parenthood of the Heartland, Inc. v. Reynolds (PPH III), 962 N.W.2d 37,

47–48 (Iowa 2021). Thus, the majority’s doubt about the workability of the

standard, because it is “exceedingly difficult” to meet in the abortion context,

speaks more to the majority’s view that abortion is not a fundamental right in

Iowa that can only be infringed upon by legislation that is narrowly tailored to

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effectuate a compelling state interest than it does about the standard’s

workability.

Moreover, I cannot say that factual and legal developments in the four

years since PPH II have “left the old rule no more than a remnant of abandoned

doctrine” or “robbed the old rule of significant application or justification.”

Casey, 505 U.S. at 855. As I stated earlier, there has not even been a chance for

the central rule of PPH II to change because this is our very first opportunity to

apply it. Therefore, nothing has changed so significantly as to render the “rule

no more than a remnant of abandoned doctrine” or rob it of “significant

application.” Id. PPH II “is not the kind of doctrinal dinosaur or legal last-man-

standing for which we sometimes depart from stare decisis.” Kimble, 576 U.S. at

458 (emphasis omitted).

Admittedly, stare decisis is at its weakest in constitutional cases because

the only way to change constitutional precedent outside of the courts is through

a demanding constitutional amendment process. Coney Barrett, 91 Tex. L. Rev.

at 1713; see Payne, 501 U.S. at 828. Although the constitutional amendment

process is strenuous, it is not impossible. After the Tennessee Supreme Court

held that “a woman’s right to legally terminate her pregnancy is fundamental”

under the Tennessee Constitution and applied strict scrutiny to its review of an

abortion waiting period, the Tennessee legislature and voters superseded that

decision by a constitutional amendment in a comparable procedure to Iowa’s.

Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 16–17 (Tenn.

2000), superseded by constitutional amendment, Tenn. Const. art. I, § 36

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(amended 2014), as recognized in Bristol Reg’l Women’s Ctr., P.C. v. Slatery,

7 F.4th 478, 482 (6th Cir. 2021) (en banc); see also Tenn. Const. art. XI, § 3

(describing the state constitutional amendment process in Tennessee).

Perhaps the most important reason not to overrule PPH II today is that the

Iowa legislature has already started the process to amend our state’s constitution

on this very issue by passing the following constitutional amendment: “[W]e the

people of the State of Iowa declare that this Constitution does not recognize,

grant, or secure a right to abortion or require the public funding of abortion.”

2021 Iowa Acts ch. 187, § 26. If the majority truly wants to leave this issue to

the will of the people, it should let the people have their say through the ongoing

constitutional amendment process. Both the house and senate approved that

amendment in 2021. Bill History for House Joint Resolution 5, The Iowa

Legislature (June 9, 2022), https://www.legis.iowa.gov/legislation/

billTracking/billHistory?billName=HJR%205&ga=89 [https://perma.cc/56Y2-

KEKZ]. Thus, the amendment will go into effect if both houses of the general

assembly that take office after the 2022 general election approve of it and the

voters of Iowa agree. See Iowa Const. art. X, § 1 (describing the process for

amending the Iowa Constitution). We should at least give our legislature and

Iowans the time and voice to go through the full amendment process before

rushing to overrule PPH II. This is especially so while we await the United States

Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization,

which could drastically alter the federal constitutional landscape. See 141 S. Ct.

2619 (2021) (granting certiorari).

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“Legal authority must be respected; not because it is venerable with age,

but because it is important that courts, and lawyers and their clients, may know

what the law is and order their affairs accordingly.” Stuart v. Pilgrim, 74 N.W.2d

212, 216 (Iowa 1956). Today’s decision only injects more confusion into the

current labyrinth that is our state and federal abortion jurisprudence. By

overruling PPH II today, the standard governing our constitutional analysis of

abortion regulations under the Iowa Constitution at least temporarily reverts

back to the federal undue burden test that we applied in Planned Parenthood of

the Heartland, Inc. v. Iowa Board of Medicine (PPH I), 865 N.W.2d 252, 269 (Iowa

2015). Yet, there is no stability in that standard because the majority is also

remanding this case

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