DES MOINES, Iowa — While the majority of the Iowa Supreme Court ruled in favor of letting a 2023 law banning most abortions take effect, the court's Chief Justice, Susan Christensen, dissented.
A 4-to-3 decision Friday by the court overturned a district court's injunction on House File 732, which was passed by a special legislative session last summer and signed into law by Gov. Kim Reynolds. Republicans wrote the legislation to ban most abortions if there is a "detectable fetal heartbeat."
Reynolds nominated Christensen to the Iowa Supreme Court in 2018, and she became the Chief Justice in 2020 following the passing of Chief Justice Mark Cady in November 2019.
In the introduction to her dissent, Christensen wrote:
"Today, our court’s majority strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution. I cannot stand by this decision. The majority’s rigid approach relies heavily on the male-dominated history and traditions of the 1800s, all the while ignoring how far women’s rights have come since the Civil War era. It is a bold assumption to think that the drafters of our state constitution intended for their interpretation to stand still while we move forward as a society. Instead, we should interpret our constitution through a modern lens that recognizes how our lives have changed with the passage of time."
The majority's opinion said that the case must be assessed under the rational basis approach, not the undue burden test.
Rational basis means that courts must determine the constitutionality of something if it is "a reasonable fit between the government and interest and the means utilized to advance that interest." In short, laws like HF 732 are "presumed constitutional," as Justice Matthew McDermott wrote, and it must be proven that a statute clearly violates someone's constitutional rights.
On the other hand, an undue burden exists "if the purpose or effect of the state restriction on abortion has placed a substantial obstacle on a smoeone seeking an abortion of a non-viable fetus," according to Cornell Law School.
Justices Edwards Mansfield and Thomas Waterman joined Christensen in her dissent.
"It is painfully apparent to me that the majority misapprehends the nature of the liberty at issue here," Christensen wrote in her dissent. "It is not whether abortion, with the polarizing reactions it evokes, is a fundamental right but rather whether individuals have the fundamental right to make medical decisions affecting their health and bodyily integrity in partnership with their healthcare provider free from government interference."
When the Iowa Supreme Court released a split 3-3 decision las tyear on a 2019 abortion law, Christensen did not write a dissent but rather joined one written by Justice Thomas Waterman.
Waterman's opinion in part, said that the court was asked, "to do something that has never happened in Iowa history: to simultaneously bypass the legislature and change the law, to adopt rational basis review, and then to dissolve an injunction to put a statute into effect for the first time in the same case in which that very enactment was declared unconstitutional years earlier."
Michael Streit, a former Iowa Supreme Court Justice who was voted off the court in 2010 after they overturned a ban on same-sex marriage in the state, told Local 5 dissents are published in "probably less than 20%" of Iowa Supreme Court cases.
And while Christensen herself writing the dissenting opinion was likely done via a random selection, therefore not personally picking this case to write about, Streit said her words hold weight.
"There is increased credibility with the Chief Justice writing opinions," Streit said. "If you read her dissent today, it's very practical, very straightforward."
The Associated Press contributed to this report
Read the full opinion below
***Christensen's remarks begin on page 25