With Roe v. Wade gone, Iowa argues courts should lift injunction on 'fetal heartbeat' abortion ban

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Lawyers for Gov. Kim Reynolds say a blocked six-week abortion ban should be allowed to go into effect, as recent court decisions have drastically changed the bedrock of Iowa law.

Abortion is less protected now under the law than it was when Reynolds signed the "fetal heartbeat" law in 2018, they contend.

The law was intended to ban abortions after about six weeks of pregnancy, when the earliest cardiac activity is detected in an embryo. The law includes exceptions for rape, incest, fetal abnormalities and to protect the life of the mother.

A Polk County judge blocked the law before it took effect. But now, with fewer legal protections in place, Reynolds hopes Iowa courts will reverse that decision.

More: Iowa abortion providers argue no legal basis exists to enact near ban

In June, the Iowa Supreme Court overturned a 2018 decision enshrining abortion as a "fundamental right" in Iowa.

A week later, the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, two federal decisions that for decades had limited how far state governments could restrict abortion.

In a court filing Tuesday, Reynolds' attorney Alan Ostergren wrote that the reversal of those landmark decisions proves neither the Iowa nor U.S. Constitution "has ever protected a fundamental right to abortion."

Therefore, Ostergren argues, "Iowa’s fetal heartbeat law was not unconstitutional when it was enacted in 2018."

Reynolds' lawyers also contend the Iowa Supreme Court's June decision raised questions about what the new legal standard of protection is for abortion, opening courts for a new discussion.

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Under the 2018 Iowa Supreme Court ruling that found abortion was a fundamental right, abortion laws had to withstand "strict scrutiny," meaning any policy restricting abortion had to be narrowly tailored to serve a compelling state interest.

The Roe decision set up a "viability" framework, preventing states from restricting abortion before a fetus could survive outside the womb.

Both were eventually revoked by later court decisions.

"Following (the U.S. and Iowa Supreme Court decisions), no constitutional right to an abortion exists, strict scrutiny is no longer the test, and the viability line is no more," Ostergren wrote.

Lawyers for Planned Parenthood, Iowa's largest abortion provider, have argued there is no legal basis for reviving a law after it's struck down by the courts.

ACLU of Iowa Legal Director Rita Bettis Austen said in court filings that Reynolds should rally lawmakers to pass a new law, "rather than attempting to revive a law that was clearly unconstitutional and void at the time it was passed by an earlier legislature."

More: Here's what Sen. Chuck Grassley thinks about a proposed nationwide 15-week abortion ban

Ostergren disagreed, citing several cases where courts changed their decisions because of changing laws or other circumstances.

A court hearing is set for Oct. 28.

Current law in Iowa prohibits abortions after 20 weeks of pregnancy. A July Des Moines Register/Mediacom Iowa Poll found 60% of Iowans favor keeping abortion legal in most or all cases.

Katie Akin is a politics reporter for the Register. Reach her at kakin@registermedia.com or at 410-340-3440. Follow her on Twitter at @katie_akin.

This article originally appeared on Des Moines Register: Iowa lawyers want 'fetal heartbeat' abortion ban reinstated