Reproductive Justice in Iowa and NY

As we wait to see just how "final" that draft Dobbs opinion is, other courts are handing down abortion related opinions.

If/when abortion rights are severely diluted in federal courts, state courts will be of particular importance. For instance, a few years ago, the Kansas Supreme Court held that there is a right to choose pursuant to the Kansas Constitution. The right there is stronger than the "undue burden" based right of Planned Parenthood v. Casey, KSC going with strict scrutiny.

The Iowa Supreme Court also secured a stronger right to abortion a few years ago.  It, however, just handed down a decision basically taking it back.  For now, the controlling majority did not decide just how weak the right to choose truly is, in part waiting for Dobbs.  But, the language of the opinion sounds a lot more than just a desire to water down the test some. 

The whole thing is a bit strange.  In 2018, a rather strong 5-2 opinion not only held there was a state constitutional right to choose an abortion, but strict scrutiny over undue burden was the test.  A 72 hour waiting period was a stake and the opinion (by the Chief Justice)  strongly discussed the threats to women.  Now a 24 hour waiting period was at stake.  So, it is not like they had to you know overrule a precedent only a few years old.  But, now a 5-2 Court (and might be 6-1 soon) did just that. 

The opinion disagreed with law professors saying stare decisis should apply.  After all, the old decision was based on a living constitutional approach.  "Does the Iowa Constitution get to “live” until 2018, at which point it must stop living?  The much more Republican (the last Democratic appointed judge is out soon via mandatory retirement) Court is getting feisty.

Of all things, the controlling opinion cites Amy Coney Barrett to discuss stare decisis.  The Chief Justice dissented in a short opinion, quoting her too, relying basically on stare decisis.   (She replaced the author of the opinion being overruled.)  "Current state and federal constitutional abortion jurisprudence is like a game of Jenga, progressively becoming more unstable until it collapses."

The last Democrat dissented with a ninety or so page opinion.  He won't be around when just how bad this is will be decided perhaps 6-1, when he is replaced with some Republican.  A lot of the time is spent covering the usual ground (Meyer, Griswold, etc.).   He also references the over ten state courts that have protected abortion rights under the state constitution.  

It is a good, if fairly standard, summary.  Justice Douglas in Doe v. Bolton provided a somewhat more in depth analysis.  And, there are other cases you can toss in.  The reference to state courts is helpful too, though Tennessee passed a constitutional amendment to override the court's judgment.  And, there is such an amendment pending in Iowa.  One more reason the majority here is a tad impatient.  Let's see how the more Republican laden Florida Supreme Court case does with the pending claim, including one that brings up religious liberty from a Jewish perspective.

He argues: "Despite what some might suggest, Roe did not suddenly emerge the obscure primordial depths. Instead, it was a result of a steady and logical progression of caselaw development, going as far back as the Magna Carta."  Correct. He also offers another state constitutional approach, though I have my doubts this state court would agree.

These state opinions will be more important soon enough.  

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Meanwhile, some states are passing laws to help protect reproductive justice.  My state senator (for now), Alessandra Biaggi, noted in her weekly email:

This week, Governor Hochul signed a historic package of legislation aimed at expanding and protecting the right to an abortion in New York. The package included the FIRE HATE Act to institute legal safeguards for individuals who travel to New York for reproductive or gender affirming healthcare. This legislation creates a cause of action for unlawful interference with protected rights under New York Civil Rights Law.

While other states are looking to criminalize abortion and gender-affirming care, New York continues to reaffirm its commitment to reproductive justice and serve as an model for the rest of our nation. 

Other legislation in the package includes:  

• Relates to legal protection for abortion service providers   
• Prohibits misconduct charges against healthcare practitioners for providing reproductive health services to patients who reside in states where such services are illegal      
• Prohibits medical malpractice insurance companies from taking adverse action against a reproductive healthcare provider who provides legal care      
• Includes abortion providers and patients in the address confidentiality program   
• Authorizes a study to examine unmet health and resource needs and impact of limited service pregnancy centers
  

Many fear that we will soon have federal limits on the power of places like New York to protect abortion rights in this fashion.  I find it hard to believe that the Supreme Court will soon hand down some ruling constitutionally banning abortion rights because embryos are protected or something. And, the trifecta of federal power trying to stop the close to a million abortions.

But, you know, didn't expect Dobbs.  For now, states do have the discretion. Thank you New York.