Iowa judge denies request to block new state law requiring 3-day wait for abortions

A Polk County District Court judge denied a request Thursday for an emergency order aimed at blocking state officials from enforcing a new law that will require a 72-hour waiting period for abortions at any stage of pregnancy.

The temporary injunction was sought by Planned Parenthood of the Heartland before Judge Jeffrey Farrell in Des Moines. Gov. Terry Branstad is scheduled to sign Senate File 471 at 8:30 a.m. Friday and the abortion restrictions are set to take effect immediately. 

Farrell announced his decision to reject the plaintiffs' motion after a hearing in which lawyers for Planned Parenthood and the Iowa Attorney General's Office offered arguments. He said the petitioners faced a high standard in making their case that the three-day waiting period is unconstitutional and creates an undue burden on Iowa women seeking an abortion.

"I just don’t think that at this time that I can find a likelihood of success on the merits," Farrell said.

The Iowa judge cited a 1992 U.S. Supreme Court decision in a Pennsylvania case that considered a 24-hour waiting period for abortions. The high court concluded that the state may enact regulations to further the health or safety of a woman seeking an abortion. The court accepted that a waiting period may impose some burden but did not find it presented an undue burden.

The case will now move to a court trial that will proceed as soon as possible to consider the evidence, Farrell said. 

Planned Parenthood attorney Alice Clapman said an appeal of Farrell's ruling will be filed with the Iowa Supreme Court, probably Friday morning. 

Branstad and the Iowa Board of Medicine are defendants in the lawsuit. State Solicitor General Jeffrey Thompson, who represented the state, said the request for a temporary injunction was an "extraordinary remedy" that was not justified for legal and factual reasons.

Thompson said abortion is not like any other medical procedure and that courts have concluded there is not a right to "abortion on demand." He suggested that many patients of Planned Parenthood already face waits for abortions for scheduling reasons and he noted that the organization does not provide abortions every day for business reasons.

Thompson also pointed out that when patients are uncertain whether to proceed with an abortion, Planned Parenthiood advises them to take more time.

"That is the goal … that more time can be a good thing," he said.

Planned Parenthood lawyer Clapman said provisions of the new state law violate the Iowa Constitution, citing a lack of due process and equal protection rights. Besides a 72-hour waiting period, the law will require women to make two trips to a doctor to obtain an abortion, she said.

Clapman said the women most affected by the requirements are low-income, victims of sexual assault or domestic abuse, those with a diagnosis of a severe fetal anomaly and those with conditions that threaten their health but don't meet the new law's narrow medical emergency exceptions.

Such laws "make women feel afraid and powerless," Clapman told the court.

The lawsuit said the new law will impose a medically unnecessary and mandatory delay on women seeking abortions in Iowa that poses immediate and serious medical risks. Planned Parenthood said it has 44 abortion patients scheduled in Iowa for Friday, including 33 medication abortion patients. It also has 11 medication abortion patients scheduled for Tuesday and 28 abortion patients scheduled for Wednesday, including 19 medication abortion patients.

The plaintiffs described the Iowa law as imposing one of the strictest requirements in the nation on women seeking an abortion. South Dakota and Missouri are the only states with similar requirements. The lawsuit says Planned Parenthood already performs an ultrasound on a woman seeking an abortion and ensures that she receives all information necessary to make a fully informed and voluntary decision to confirm she is firmly decided before having an abortion.

No similar two-trip or mandatory delay requirement is imposed on Iowa women or men seeking any other medical procedure, the lawsuit says. The legislation offers women no benefits, will severely and abruptly burden their access to abortion and will likely prevent some women from obtaining an abortion, the plaintiffs contend.

Doctors who violate the mandatory delay and additional trip requirements are subject to state disciplinary actions.

The legislation imposes a ban on most abortions in Iowa after 20 weeks, although that provision was not a focus of the request for an injunction. The bill will allow an abortion after 20 weeks if doctors determine it's necessary to preserve the life or health of the mother. But it does not include exemptions for pregnancies resulting from rape or incest, or for pregnancies in which a genetic anomaly makes life after birth impossible.

Supporters of the anti-abortion legislation during the 2017 session included the Iowa Catholic Conference and the Iowa Right to Life Committee. Twenty-seven other states have some kind of waiting period, though most are only a single-day restriction. 

Sen. Mark Costello, R-Imogene, who was the floor manager of the Senate bill, told The Des Moines Register this week he doesn't doubt that many women may have made up their minds to obtain an abortion. But he believes the three-day waiting period will provide an opportunity for some women who aren't sure about obtaining an abortion to change their minds.

The legislation will require a woman seeking an abortion to undergo ultrasound imaging and it provides that the woman be given an opportunity to see an image of the fetus. In addition, the bill requires that a woman be given an option of hearing a description of the unborn child based on the ultrasound image and hearing the heartbeat of the unborn child.

Planned Parenthood is Iowa's largest abortion provider, overseeing more than 2,100 medication abortions and more than 1,200 surgical abortions between April 1, 2016, and March 31, 2017. The nonprofit agency provides medication and surgical abortions at facilities in Des Moines and Iowa City, and medication abortion at health centers in Ames, Burlington, Cedar Rapids, Council Bluffs, Bettendorf and Sioux City.

The lawsuit says that even with Planned Parenthood's telemedicine program, 89 percent of Iowa counties lacked an abortion provider and 42 percent of women lived in these counties as of 2014.

The plaintiffs said about one in three women in the United States will have an abortion by age 45. Fifty-nine percent are mothers who have decided they cannot parent another child at this time and 66 percent plan to have children when they are older or in a supportive relationship so that their children will have two parents.