When the nine justices of the U.S. Supreme Court meet for conference this Friday, an Iowa Supreme Court case will be on their agenda (kind of).
In June, the Iowa Supreme Court ruled that Iowa’s ban on telemed abortion violates both the U.S. and Iowa constitutions because it places “undue burden on a woman’s right to terminate a pregnancy.” The operative phrase of that quote–“undue burden” — comes from the U.S Supreme Court’s opinion in Planned Parenthood v. Casey, and it has become the definitive test of whether a law that restricts abortion is constitutional.
Lower courts are now disagreeing, however, on how the undue-burden test should be applied, and in the Iowa telemed abortion case (Planned Parenthood v. Iowa Board of Medicine) the Iowa Supreme Court took sides.
Adopting language from the Seventh Circuit, the Iowa Supreme Court, in an opinion by Justice Wiggins, wrote that the application of the undue-burden test differs depending upon the state’s reason for regulating abortion. If the law’s purpose is to “advance fetal life,” then the law is constitutional unless “its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” If, however, the law’s purpose is to “further the health or interest of a woman seeking to terminate her pregnancy,” then the court must scrutinize the state’s medical justifications and weigh them against the burden that the law places on a woman’s ability to terminate her pregnancy. The more “feebler” the medical justifications, Justice Wiggins wrote (again, borrowing from the Seventh Circuit), the more likely that any burden (even a slight one) will be an undue one.
The Iowa Board of Medicine’s stated purpose in banning telemed abortion was to protect the mother’s health, but the Iowa Supreme Court thought that the health benefits were “very limited.” In weighing those “very limited” benefits against the burden on the mother (having to travel a greater distance to receive in-person treatment), the justices came to the conclusion that the law violated both the Iowa and U.S. constitutions (though the plaintiffs’ case was based solely on a violation of the state constitution).
But just 10 days earlier, the United States Court of Appeals for the Fifth Circuit came to the opposite conclusion.
In 2013, Texas enacted a statute that, one, requires abortion clinics to comply with standards for ambulatory surgical centers, and, two, prohibits a physician from performing an abortion unless that physician has admitting privileges at a hospital within thirty miles of the location where the abortion will be performed. The justification for the law — like the justification for Iowa’s telemed regulation — was to protect the health of the mother. And the burden that the law placed on women choosing to have an abortion — like the burden placed on Iowa women under the telemed abortion regulation — was having to travel greater distances to receive an abortion at a clinic that could meet the new, stricter standards.
Unlike the Iowa Supreme Court, though, the Fifth Circuit concluded that it did not need to closely scrutinize and weigh the state’s medical justifications. As long as the justifications are rational, the Fifth Circuit concluded, then the focal point of the analysis is on whether the burden (traveling greater distances to receive an abortion) is an undue one.
The Fifth Circuit said that it is not — at least not in most cases. The court did rule that one clinic could stay open, despite not meeting the admitting privileges and ambulatory surgical center standards, because the next closest clinic that performed abortions (and met the statute) is 235 miles away. That, the court concluded, is too far. But lesser distances (specifically, those under 150 miles) do not amount to an undue burden, the court ruled.
The plaintiffs in that case are now asking the U.S. Supreme Court to review the Fifth Circuit’s decision. They argue that it’s wrong, and (importantly for getting the Supreme Court’s attention) they argue that the Fifth Circuit’s version of the undue-burden test is at odds with the version that other courts, including the Iowa Supreme Court, apply. The Fifth Circuit’s standard, plaintiffs argue, “stands in direct conflict with decisions of the Seventh and Ninth Circuits and the Iowa Supreme Court, which hold that courts must examine the extent to which laws regulating abortion actually further a valid state interest in assessing whether the burdens they impose on abortion access are undue.”
In response, Texas says that the Fifth Circuit got it right, and that the split among the lower courts isn’t as deep as the plaintiffs advertise. According to Texas, the Seventh and Ninth Circuit opinions that the plaintiffs point to are in conflict with precedent in those Circuits, and the Iowa Supreme Court decision is an “outlier.” As a result, Texas says that this case is not Supreme Court material.
So the justices must now decide whether this is indeed an issue worthy of their review. The Texas case was listed on the Supreme Court’s conference calendar for last Friday (November 6), but the Court relisted it for this week’s conference. Thus, we might know as early as this Friday whether the justices will take up this issue, and thus whether it will (indirectly) review the Iowa Supreme Court’s decision in Planned Parenthood v. Iowa Board of Medicine.