Highlight on Iowa: Controversy Over Abortion Regulation– Practice Standards or Politics?

The Iowa Supreme Court has been asked to consider a challenge to a rule adopted by the Iowa Board of Medicine (IBM) that bars medical abortion unless the physician who administers the abortion-inducing drug has personally examined the patient and is physically present in the room.  At the heart of the controversy is the practice of Planned Parenthood of the Heartland (PPH), whereby women in rural areas are physically examined by a nurse or other nonphysician health care professional, undergo an ultrasound, and then consult with a physician via video conferencing. The physician has the ultrasound and test results and even makes the drug available to the woman via remote control, but does not actually touch the patient or physically examine her.

PPH began using this protocol in 2008 so that patients would not have to travel to one of the cities where the physicians were located in order to obtain a medical, rather than a surgical, termination of their pregnancy. In 2010, the IBM investigated the practice after receiving complaints from abortion opponents. When the investigation was complete, the IBM determined that PPH’s practice was safe and declined to address the matter further.

Subsequent Board Action

Over the next three years, Governor Terry Branstad (R), an abortion opponent, replaced all ten members of the IBM. The new board members included a Catholic priest and physicians who were active opponents of all abortion. The Des Moines Register reported that the new members refused to read the staff report of the 2010 investigation. Dr. John Olds, a retired physician and former Board member who works for the IBM, told the Register that the new Board also refused to let him address them on the subject. Their refusal to read the staff report of the investigation led Dr. Olds to conclude that the decision arose from partisan politics rather than scientific inquiry.

An anti-abortion group then petitioned the IBM to make rules barring the use of telemedicine to prescribe abortion-inducing medications. The Board granted the petition at a regularly scheduled meeting three days later, on June 28, 2013, over the objections of the Iowa Medical Society, the Iowa Osteopathic Medical Association, other organizations, and the Board’s own attorneys, who urged them to receive more input from stakeholders. The Notice of Intended Action was published. A public hearing was held August 28, 2013, and the Board adopted the rule as published on August 30, 3013. On September 27, 2013, the IBM released a statement of its reasons for adopting the rule.

PPH’s Lawsuit

PPH sued in the District Court of Polk County, and on November 5, 2013, Judge Karen Romano entered a stay delaying the effective date of the rule. The order did not address the merits of the challenge to the regulation, but on the balance of harms and the need to preserve the status quo. PPH claimed that the rushed process and unwillingness to consider the views of medical professionals essentially resulted in a disregard of relevant facts and law.

PPH argued that:

  • the rule would hinder rural women’s access to a legal service by reducing the number of facilities where they could obtain abortions, requiring them to travel farther;
  • it had analyzed the records and found that there was no difference between its telemedicine patients and those who saw the doctor in the office with respect to the rate of complications or need for follow-up care;
  • the IBM was abandoning the policy established after the 2010 investigation of PPH’s physicians’ practices;
  • the IBM failed to adhere to its own policies promoting telemedicine. It did not, for example, require physicians to perform physical exams of patients for whom powerful psychiatric drugs were prescribed.

Trial Court Ruling

On August 18, 2014, Judge Jeffrey Farrell issued a decision upholding the rule. The court noted that PPH did not contend that the IBM exceeded its statutory authority, but that it had abused its discretion by basing its decision on politics, failing to consider the relevant facts and circumstances. There was no question that the IBM had the authority to establish minimal acceptable standards of practice for the medical profession. It was a felony for anyone but a physician to deliberately terminate a pregnancy.  Therefore, if IBM followed the procedural requirements of the statutes, its interpretation of the statute was entitled to a great degree of deference.

The trial court acknowledged that the timing of the process and refusal to hear from stakeholders beyond the minimum required by law “invited scrutiny.”  Nevertheless,  Iowa’s rule making process includes review by a committee of each chamber of the state legislature, and neither committee found anything amiss. The members of the Board and counsel who objected to the haste with which the Board acted did not raise objections to the rule on its merits.

The court found that the IBM had followed the required procedures and timelines for notice, a comment period, and a hearing if a sufficient number of people requested it. Although the IBM acted more quickly than usual, the statement of reasons explained that the Board had considered a great deal of public comment and gave reasons for its rejection of PPH’s position.The Board had expressed concern about the adequacy of the training of the nurses and paraprofessionals who performed the actual physical and ultrasound exams, particularly, whether they could recognize any of the contraindications to a medical abortion, such as ectopic pregnancy.

In addition, the court found that the IBM did not disregard PPH’s arguments or the facts it presented; it considered and rejected them and articulated its reasons. The rule did not prohibit medical abortions or even require adherence to the FDA’s seven-week limit. The requirement that a physical exam be performed by a physician was within the IBM’s area of expertise and was entitled to deference.

PPH has appealed to the Iowa Supreme Court and asked for a stay.