This week, Iowa’s Republican legislature teed up a conflict with the state’s highest court. Lawmakers passed a ban on abortions after six weeks of pregnancy even though the Iowa Supreme Court blocked enforcement of another such law last month. In that case, a key judge recused herself and the court divided in half, the result being that the ban could not go into effect. Now Republicans led by Governor Kim Reynolds are trying again — but there is a chance the Iowa Supreme Court will strike down the new abortion ban too.
The most puzzling thing about the potential showdown is that the parties on both sides are Republicans: Each of the Iowa Supreme Court’s judges was nominated by a Republican governor, and some won retention elections in what is an overwhelmingly Republican state.
It’s a reminder that state courts in red states can still offer surprises on abortion. The considerations for state supreme courts differ significantly from the ones for state lawmakers.
The Iowa Supreme Court has to grapple with the meaning of the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Three of the seven judges argue that there should be no daylight between Iowa law and federal constitutional law. That means that if the Supreme Court dismantled a right to choose abortion, Iowa should do the same thing.
Three other judges suggested that Iowa and other states have their own constitutional history and tradition to consider — and that Dobbs doesn’t require the state Supreme Court to change course. In a case decided before Dobbs, a divided Iowa Supreme Court suggested that there was a right to abortion and that the right to make decisions about it could not be unduly burdened. That’s one of the reasons abortion remains legal in Iowa through 20 weeks of pregnancy — and why constitutional challenges to new abortion bans remain viable.
When the court deadlocked last month, three of the judges seemed ready to stick with that status quo, while three were ready to overturn it. The fate of Iowa’s new abortion law will likely depend on the vote of the seventh justice, who had to recuse herself last time because her former law firm had represented a clinic challenging the law while she was at the firm. This time, she likely won’t have such a close connection and will be able to break the court’s stalemate.
The idea that state constitutions are free to depart from federal principles is not new or unique to Iowa. Supreme courts in conservative states from South Carolina to Oklahoma have carved out some state constitutional protections for abortion. Some states have broader protections for privacy, religion, and speech than the federal constitution. State judges have pointed to differences in their state’s precedents, the text of the state’s constitution, and more to justify these rulings.
But the politics of these decisions is another matter. Why would Republican judges who have to face reelection in a Republican state defend their state’s constitutional right to abortions?
The answer may be that judicial elections, like ballot initiatives, are different from legislative and gubernatorial elections. Just look at what happened in Kentucky and Wisconsin in 2022. In both states, Republicans retained control of the legislature and actually picked up seats. Yet in Kentucky, voters rejected a ballot initiative that would have established that the state constitution offered no protection for abortion. When it came to the state Supreme Court, voters rejected the most conservative candidates, including one former lawmaker who wrote the state’s abortion ban. In Wisconsin, voters overwhelmingly preferred a left-leaning candidate who put abortion at the center of her campaign.
How can we make sense of this divergence? At least so far, the abortion issue has helped Democrats across the board, but in red states that are both deeply partisan and heavily gerrymandered, voters may not be willing to set aside their partisan preferences, no matter how much they dislike Republican policy on abortion. Ballot initiatives allow voters to separate their views on abortion from their partisan identities. And even though state judges weigh in on all kinds of questions, from those involving election outcomes to more mundane matters involving injury law or the rights of criminal defendants, few, if any, of these issues attract as much attention as abortion. This makes it possible to frame state supreme court elections as a referendum on reproductive rights.
That helps explain the Supreme Court election in Wisconsin. And it might change the stakes for state Supreme Court judges convinced their state constitutions offer some protection for abortion. For these judges, voting for abortion rights might strike them as both constitutionally correct and politically wise.
In Iowa in 2010, voters angry that the state Supreme Court had recognized a right to same-sex marriage voted to remove three of the judges who joined that majority. It’s not hard to imagine something similar happening in the future, but this time, voters might be angry at judges who refuse to recognize a right to abortion. Poll numbers in Iowa, as in much of the country, certainly bear out this possibility: 61 percent of Iowans polled in March by the Des Moines Register believed abortion should be legal in all or most cases, including 70 percent of women and 41 percent of Republicans.
This week’s events in Iowa were just one of several confrontations between conservative courts and legislatures. In South Carolina, for example, legislators passed a new abortion ban as soon as a swing justice on the state’s Supreme Court retired.
It may seem that the outcome of these struggles in Republican states will all end one way: with abortion rights a thing of the past. But for all the complexity of their views on abortion, voters do not like bans. The states with the most punitive laws on abortion may turn out to be the places where the most innovative protections for abortion rights emerge.
Mary Ziegler is a professor of law at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”