The Iowa Supreme Court heard oral arguments today in Planned Parenthood’s lawsuit seeking to overturn a couple of the provisions the state abortion law.
Lawyer Alice Clapman of Planned Parenthood Federation of America in Washington, D.C. says requiring women to make a second clinic appointment and then wait 72 hours before getting an abortion places an undue burden on all women seeking to get an abortion. She was asked by a justice if a 24-hour waiting period would be better.
“We don’t believe so, because the evidence demonstrates that women take the time that they need to make these decisions and it is completely unnecessary for the state to impose a mandatory delay on women,” Clapman responded. “And it’s burdensome, especially when the state requires an extra trip.” The state argues the waiting period allows women to get more information and some change their minds about abortion.
Justice Brent Appel asked Clapman about that argument. “Do you acknowledge that at least some women — of approximately 4,000 who undergo
abortions in Iowa each year — might change their mind if they had access to additional information and a 72-hour time to reflect,” Appel asked. “We don’t acknowledge that your honor because the evidence is that women take time before they make their appointment and they don’t need a state-imposed mediatory delay.” Clapman was asked about a study in Utah where eight percent of the women said a waiting period changed their mind.
“That eight percent included women who were inclined to continue their pregnancy — it also included women who continued their pregnancy not because they changed their mind — but because they were prevented from having an abortion because of the cost or logistical burden,” Clapman says. “And so what that study showed is it’s really only two percent and that’s in the same range as the patients who change their minds without a waiting period.” Clapman was asked if there was any case in Iowa where abortions should be restricted. She says Federal Law dictates when restrictions are allowed.
“In RoeV. Wade the court recognized that abortion was a fundamental right and that the state’s interest in potential life does not become compelling until viability. So, there is certainly a distinction before viability and after viability. And here we are only talking about abortions before viability,” Clapman says. Planned Parenthood’s argument is based on what is known legally as a facial challenge — which says any restrictions are not allowed — as opposed to taking on each abortion case based on individual circumstances.
Jeffrey Thompson, the attorney representing the state says the requirement is designed to give women more time to make an informed decision about getting an abortion. He says planned parenthood has not proven the Iowa law prevents women from getting an abortion.
“It’s a heavy burden as this court has said, as you have said that a party making a facial challenge bears a heavy burden, it must show no conceivable set of circumstances exist under which the statute would be valid,” Thompson argued. He cites the district court decision that the waiting period doesn’t take away a woman’s right to get an abortion.
“The court found and made a fact-finding that is entitled to deference here that this did not prevent women from exercising their right to choose. And it found that the evidence in this record supported that it could change minds,” Thompson says. Thompson also says the Utah survey shows the waiting period can make a woman change her mind. Justice Mark Cady questioned that.
“But there’s no evidence that the women changed their mind because they had 72 hours to think about it,” Cady asked. “Yeah, I think there is,,” Thompson says. “…you are trying to carve this evidence really thin your honor. That’s one reasonable interpretation from the Utah study. I mean we have a quote from somebody who says ‘after thinking about it I just couldn’t go through with it,’,” Thompson says.
Thompson was asked if there is a set percentage of women who believe the law is a burden that would make it unconstitutional. “I don’t think any of the evidence in this case gets close to a substantial fraction of women being denied the opportunity to make the choice. Because in no case are they being denied the choice, that’s the trick here,” Thompson says. The district court declined to issue an injunction against the two provisions of the law, but the Iowa Supreme Court put them on hold until they could hear the case. It is not known how long their decision may take.