When It Comes to the Court, Accountability Matters

Chris Geidner of ‘Law Dork’ breaks down the recent state supreme court rulings on abortion

Last week, the Iowa Supreme Court stopped a 2018 abortion ban from going into effect. It happened almost by accident. With one judge recusing herself, the court’s decision was 3-3. The result is that a 2019 ruling striking down the ban as unconstitutional remains in effect.

Iowa Gov. Kim Reynolds had asked the state’s high court to take up the case again after the U.S. Supreme Court invalidated Roe v. Wade. It was a pointed sidestep. Instead of asking the majority-Republican legislature to draft and pass a new law, Reynolds asked the court to rule on a five-year-old law that had already been declared unconstitutional — a ruling that Reynolds never appealed.

This legislative session, Iowa lawmakers abandoned a Republican plan to make denying the right to an abortion part of the state constitution. That constitutional amendment was a huge part of the governor’s platform for years. But it was quietly shelved in an effort to punt the decision to the courts.

Perhaps that’s because 60 percent of Iowans believe abortion should be legal. States where legislatures or courts have made abortion illegal or nearly so have seen significant backlash. In 2022, a constitutional amendment in Kansas that would have outlawed abortion was overwhelmingly rejected by voters. In the Wisconsin Supreme Court election this April, voters rejected right-wing contender Daniel Kelly in favor of Judge Janet Protasiewicz, who vowed to protect the right to an abortion. For the time being, abortion up to 20 weeks into a pregnancy remains legal in Iowa, although it is very hard to access.

In one of the opinions, Iowa Supreme Court Justice Thomas Waterman wrote, “It would be ironic and troubling to be the first state Supreme Court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body.”

It’s a strong statement coming from a justice, who in 2022 ruled that there was no constitutional right to an abortion in Iowa. Waterman’s shift could reveal a growing distaste among judges tasked with doing the legal dirty work of conservative lawmakers. Or it could simply reveal nothing at all.

I asked legal expert and journalist

Chris Geidner

, who writes the

Law Dork with Chris Geidner

newsletter, to discuss the current chaos around reproductive rights in America.  This interview has been edited for length and clarity.

 

Lyz: There’s a lot of chaos right now around abortion rights at the state level.

Chris: This is exactly what we were warned would happen in the aftermath of Roe. This is the opposite of the conservative talking point —  they made it sound like the Dobbs decision would toss abortion to the states and simplify everything, but it didn't at all. Because with Roe, what you had was one national standard that did change a bit over time, but … there was stability. So … Iowa could go through a phase where it was being led by conservatives and they might pass something because that's what they think their voters want, but we had a pretty good idea of what would be upheld, what would be struck down.

That's the exact thing that happened in Iowa in 2018. This “fetal heartbeat law” was passed that was unconstitutional, and it was struck down.

The important thing is that the governor didn't even appeal the ruling — the governor's office and the attorney general knew that this was not going to be able to succeed.

And then Dobbs comes down and they're like, "Just kidding, we would like this injunction to be tossed out and we want to be able to enforce this law." And last week, three justices on the court said what you would think is the logical thing: "You can't do that." There are do-overs in court, but that's a process …

Sure, you can come up with new laws that you pass. You can come up with new clients to bring new lawsuits in situations where you want to overturn old precedents as a lawyer. But you don't just take an old law and an old case and say, "Can we go back to that one that was done and over with?” And that's what they did here. And almost more remarkable than that is the fact that there were also three justices on the Iowa Supreme Court who said, "Eh, sure, why not?" 

Lyz:  Yes, there is that part, isn't there? Part of what fascinated me about the opinions is they were so mired in legal technicalities, which showed some lack of appetite to actually deal with the issue of abortion.

Chris: I think that from reading between the lines …  they're sort of like, "We're not supposed to be doing this. We can't do the dirty work for you if you are not willing to pass a new law." 

I bet you if you did an anonymous survey of state Supreme Court justices and their view of what Dobbs did, I bet they would not have a high approval rating of Dobbs. Because it basically tossed this hot-button issue that had been taken off their plate that they could, for the past 50 years, just go, "See Roe. See Casey," and overturned things.

Now they're having to rule on this issue.  And what we've seen over the past year is a lot of surprising rulings. We saw a 5-4 narrow ruling in Oklahoma that found there's a constitutional right to an abortion. We found a similar narrow ruling in North Dakota. I mean, these are not courts that are eager to jump into this on this side. And yet, I think as a political issue and as a substantive legal issue, these state supreme court justices realized that the U.S. Supreme Court made it possible for lawmakers to go too far. And they are having to be the stop valve for the worst legislative actions.

Lyz: How do you see this playing out? 

Chris:  I wish I could say either clearly what's going to happen or give you really good news. I don't think I can do either, unfortunately.

Lyz:  So, the answer is confusing chaos?

Chris: Yeah, confusing chaos. The reality that I think we are seeing in part from the U.S. Supreme Court this term is that they are aware that a number of people think that they went too far last term. And that people will pay attention, which is important and something that Democrats have not been good about in the past when it comes to the courts.

And then secondarily, what we are seeing is the state fallout — you've got state legislatures, especially in trifecta Republican states where you have both legislative chambers being led by Republicans and a Republican governor, that we're also seeing this with abortion, we're seeing this with anti-trans legislation, anti-LGBTQ legislation in general. And that is leading to really extreme laws. I mean, a Trump appointee in Indiana just stopped the state from enforcing its gender-affirming care ban for trans minors. And that was a Trump judge, and it was a pretty narrow, carefully crafted decision.

It wasn't what we got from the judge in Florida that had this overwhelming language and could be quoted by MSNBC all the time. But it did the job, as a lawyer on these cases told me. And we are seeing these narrow technical rulings in Oklahoma, North Dakota, and now in Iowa. But I do think that we are going to see some situations where all of the bad pieces align.

And so we're going to continue to have situations where bad laws are passed that are very restrictive of people's rights. And the first step is going to be for advocates to try and find a way in their state's constitution to maintain some rights. And then, in scenarios where they fail on that ground, trying to change the legislature and/or the court. For example, the Wisconsin Supreme Court elections this year, which went as well as they could have gone for those wanting to protect abortion rights in Wisconsin. 

But In North Carolina, the court went the other direction and it went from a 4-3 Democratic-led court to a 5-2 Republican-led court. And they are literally reversing the old court's decisions pretty regularly, from voting rights to criminal justice. There's a real probability that they'll do the same with abortion. 

That doesn't bring comfort to anybody who is looking for stability. Stability is not just what Roe and Casey gave us; it's also the point of the law. It's why we have a system of laws, so that there is stability in our day-to-day lives and we don't need to worry about these sorts of things. By overturning Roe, we do have that worry constantly, because of all these moving pieces. If you are just a normal person trying to live your life, that wasn't a part of your day two years ago, and now it's something you have to focus on constantly.

Lyz: And the instability is having an effect. People aren’t working in abortion clinics in red states. Doctors are leaving. 

Chris:  Yes, we're seeing this with abortion care and with gender-affirming care. And this is why places like Planned Parenthood are so important, because unless you have a full system behind you — one able to deal with the legal issues and pay for the lawsuits — it’s hard to practice. 

Also, it’s one thing to say, "Well, I've got my clinic and they're going to pay for the legal bills." It's another thing if there's a criminal penalty associated with it. In some states, the penalties have to do with medical licensure. If you're a doctor or nurse or nurse practitioner, it is a professional death sentence.

Lyz: What’s interesting to me about the Iowa decision is that lawmakers and courts seem to be playing a game of hot potato with these issues, tossing them back and forth to one another. So, something seems to be happening. A shift, maybe?

Chris: This is accountability. This is what it looks like. I don't think that anybody expected the Supreme Court ruling in the Voting Rights Act case. Now, it doesn't turn back the past decade of John Roberts-led decisions that have pulled back and pulled back and pulled back on the Voting Rights Act. But it was a decision that today, in this case, we're not going to pull back further. And even that is not what we expected when we heard oral arguments.

So accountability works. Backlash works. I do think that’s the view-from-30,000-feet take from this past year — that holding our judges and lawmakers accountable takes a lot of time and attention. Because the whole idea is we have a government so we don't need to worry about these things. But if we pay attention to what our government is doing and actually hold the people who are making those decisions accountable for their decisions that have real-world consequences, it does change behavior. And in some cases when we have elections, it changes who's in office. Accountability matters.

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Further Reading:

• Laura Belin, the author of the blog Bleeding Heartland, has a more detailed analysis of the Iowa ruling for all you legal nerds out there.

• Yesterday, a judge in Arkansas struck down a law banning gender-affirming care for minors. Iowa is one of many states with a similar ban. It will be interesting to see if that law can pass a legal challenge.