A Polk County District Court today upheld a rule adopted by the Iowa Board of Medicine last year, which would prohibit Planned Parenthood of the Heartland from providing medical abortions using “telemedicine” (where a doctor meets with the patient via videoconferencing). You can read the full text of Judge Jeffrey Farrell’s ruling here. After the jump I’ve summarized Judge Farrell’s key findings, including background on the case and excerpts from his decision. I’ve also enclosed reaction from both sides in the telemedicine abortion debate, as well as from Governor Terry Branstad and Democratic challenger Jack Hatch.
Judge Farrell’s ruling goes into effect in 30 days, but Planned Parenthood has already said it will appeal, so the Iowa Supreme Court may put another stay on the rule pending its hearing of the case.
I’m surprised by this ruling. In a November 2013 decision granting Planned Parenthood’s request for a stay of the rule, Polk County District Court Judge Karen Romano sounded skeptical that rule would be upheld when courts considered the merits. She noted the lack of evidence of any adverse outcomes in more than 5,000 abortions using Planned Parenthood’s telemedicine system, the “peculiar” fact that the Board of Medicine required an in-person meeting between a patient and doctor for abortion services, but not for other telemedicine practices, and the likelihood that denying rural women access to medical abortion would increase demand for “surgical abortion, which is much more invasive and risky.” UPDATE: In the comments, Bleeding Heartland reader ahawby notes several factors that could have influenced Judge Farrell’s perspective on this case.
Today’s decision is a victory for opponents of abortion rights, because Iowa women in small towns and rural areas will face more hurdles to obtain abortions early in pregnancy. It’s also a personal triumph for Branstad’s legal counsel, Brenna Findley. As Judge Farrell’s ruling acknowledges, Findley was a vocal advocate of the rulemaking, urging the Board of Medicine to act quickly on the petition from pro-life activists, against the advice of the board’s own legal counsel as well as the Iowa Attorney General’s office.
The first part of Judge Farrell’s ruling briefly reviews the history of medical abortions using the drug mifepristone (as opposed to surgical abortions), and Planned Parenthood of the Heartland’s telemedicine abortion protocol. Planned Parenthood introduced this system at most of its Iowa clinics in 2008, to reduce the need for women to drive long distances to obtain a medical abortion. Nurse practitioners or certified medical assistants conduct a physical exam and ultrasound of patients seeking a medical abortion, and also do blood work. The patient then communicates with a physician in another city via a videoconferencing system. The doctor uses a computer to unlock a drawer from which the patient can obtain the medication, which must be taken in view of the doctor.
Judge Farrell then covers the Iowa Board of Medicine’s 2010 decision to dismiss a complaint against a doctor participating in Planned Parenthood’s telemedicine system, and how the board responded to a new petition for rulemaking on the issue last summer. Excerpt from pages 6 and 7:
On or about June 25, 2013, the Board received a “petition for rulemaking regarding the standards of practice for performing a chemical abortion.” […]
On June 28, 2013, the Board held a public meeting regarding the petition for rulemaking. After hearing from three members of the public, a motion was made and seconded to accept the petition and commence the rulemaking process. Ann Gales, a Board member, stated that the Board was considering the rule too quickly. The Board’s legal counsel from the Attorney General’s Office advised the Board to delay accepting the petition, although she stated the Board could concurrently approve a separate notice of intended action with the same language as the petition. The Board’s director of legal affairs similarly stated that the Board was taking action without fully considering the issues in the petition. However, Brenna Findley, the Governor’s legal counsel and state administrative rules coordinator, advised the Board that it could vote to accept or reject the petition immediately. The chair called for a vote and the Board approved the motion by an eight-to-two vote.
After accepting public comments on the proposed rule and holding a public hearing, the Board of Medicine adopted a rule prohibiting telemedicine abortions by an eight to two vote in late August 2013. The two dissenters cited the speed with which the rule was being considered.
On pages 7 through 9, Judge Farrell summarizes the Board’s stated reasons for adopting the rule, and its rebuttal to eight arguments against the rule. The next part of the ruling deals with evidence the District Court will consider, and the standard of review for considering a challenge to a state rule. The judge noted that the Iowa legislature “has clearly vested professional licensing boards with the power to make rules and interpret its governing statutes as related to the practice of its respective professions.” The Board of Medicine has “statutory authority to regulate the medical profession through rulemaking […]” The legislature has also said only physicians may perform abortions. The board complied with deadlines established for the rulemaking process.
Beginning on page 16, Judge Farrell considered Planned Parenthood’s argument that the board did not consider “a relevant and important matter” relating to the rule on telemedicine abortions–namely, the Board of Medicine’s own 2010 report that found no adverse outcomes from the procedures in Iowa. Board members also ignored the Iowa Medical Society’s and Iowa Osteopathic Medical Association’s requests for more time to consider input from the medical community. Excerpts from pages 17 and 18:
There is no doubt that portions of the rulemaking process invited scrutiny, even though it technically complied with the legal requirements. The Board acted on the petition for rulmaking only three days after it was received, and in contravention of advice from its in-house counsel and attorney general representative. […] The governor’s attorney was present at the June 28, 2013 meeting and advised the Board it could proceed, which although correct legal advice, was contrary to the counsel given by the Board’s regularly assigned attorneys to take more time. Of course, the presence and advice given by the governor’s attorney, even though she is also the state’s rules review coordinator, attracts accusations that the process is more political than policy oriented. The Board did little to temper such accusations by refusing to follow requests by professional trade groups such as IMS and IOMA to take additional time for before adoption to receive more input and engage in more discussion with stakeholders.
However, the Board did consider these concerns and responded to them during its decision adopting the rule. […] The Board stated that the rule was narrowly drafted and limited to standards of practice that physicians must use before conducting medical abortions.
Judge Farrell rejected Planned Parenthood’s point because even if the board acted with more haste than usual, it did comply with the rulemaking timeline outlined in Iowa Code. It received public input from both sides, even if it ultimately rejected all arguments made by opponents of the telemedicine ban.
As for failing to consider the board’s own 2010 decision allowing telemedicine abortions to continue, the judge determined that the Board of Medicine’s actions were not really a “policy” because no rules were adopted in 2010. In any event, nothing prevents a board from rescinding or changing a rule.
On page 21, Judge Farrell addressed one of Planned Parenthood’s strongest arguments, in my opinion: that the Board of Medicine didn’t consider its own policies supporting the use of telemedicine in general as a way to increase rural Iowans’ access to health care. He determined that the board did consider the abortion rule’s impact on telemedicine, and made the rule narrowly-focused for that reason. He also noted that the board has adopted a rule requiring a physician to examine a patient in person before initiating pain management treatment. So the abortion restriction isn’t the only time the board of medicine has required a physical exam.
The fact remains that Iowa doctors can see patients via videoconferencing and prescribe many medications that have more serious side effects than mifepristone.
On pages 21 and 22, Judge Farrell rejected Planned Parenthood’s claim that the board did not consider facts of the telemedicine abortion program. Board members heard testimony from both sides at the public hearing. “The record shows that the Board understood PPH’s protocol and reviewed studies submitted, but disagreed with PPH when setting the standard of practice.”
The judge then cited “legitimate reasons to support the Board’s decision” to require an in-person exam with a doctor (not merely a nurse or physician’s assistant) before prescribing mifepristone. Excerpt from page 23:
The Board’s adoption of the rule is one that is precisely within the expertise of the Board of Medicine and not one to be decided by the court. The Board includes seven physicians who are educated, trained, and experienced in the practice of medicine.
The next part of the District Court ruling addresses Planned Parenthood’s claim that banning telemedicine abortions will create undue hardship for rural Iowa women. Judge Farrell found that the board didn’t fail to consider that argument–it rejected it. Since the board’s conclusion was not unreasonable, the court should defer to it. The rule does not ban medical abortions, and while it makes medical abortion less convenient, that outcome may be outweighed by the “higher standard of practice.”
The next section, running from pages 26 to 30, is one of the most interesting. Planned Parenthood argued that the Board of Medicine was improperly constituted at the time it adopted the abortion rule, because one of Governor Branstad’s appointees, Monsignor Frank Bognanno, opposed abortion in all cases and had previously urged the Board of Medicine to ban telemedicine abortions. His opposition to abortion therefore “went beyond issues of standards of medical care that are the province of the board.”
Judge Farrell drew heavily on the Iowa Supreme Court’s recent ruling in a case brought by the Iowa Farm Bureau and others. In that case, plaintiffs had argued against a water quality rule, on the grounds that a member of the Environmental Protection Commission had advocated for the rule. The Iowa Supreme Court rejected that claim, finding that “viewpoint bias” is acceptable on state boards and commissions. (In other words, elections have consequences.) Citing that case, Judge Farrell determined that Monsignor Bognanno did not play an improper role in the rulemaking. He may favor outlawing abortions, but the rule doesn’t ban all abortions or even all medical abortions.
Finally, Planned Parenthood argued that the rule violates the due process and equal protection clauses of the U.S. and Iowa Constitutions. Judge Farrell discusses that part of the case on pages 30 through 38. Citing U.S. Supreme Court precedent, including the 1992 Casey ruling on an anti-abortion law in Pennsylvania, the judge concluded that Iowa’s ban on telemedicine abortions does not place an “undue burden” on women in rural areas. Planned Parenthood of the Heartland will still be able to provide surgical and medical abortions at four Iowa locations (Des Moines, Bettendorf, Iowa City, and Sioux City). Other courts have said forcing women to drive 150 miles or travel for three hours is not an undue burden.
As for the state-level equal protection claims, the judge concluded (pages 37 and 38):
[T]his does not appear to be an instance that calls for a different evaluation under the Iowa Constitution. The undue burden standard has been in place at the federal court level for twenty-two years since Casey was announced in 1992. There is no comparable line of cases at the State level. […]
Unlike Varnum and other cases cited in Varnum where Iowa courts played a leading role on important constitutional issues, the parameters governing legalized abortion in this country were led by the United States Supreme Court through its decision in Roe v. Wade, and refined by the decisions that followed. There is no reason to deviate from the standards set by the federal courts. Therefore, PPH’s claims under the Iowa Constitution must be denied for the same reasons which the federal constitutional claims are denied.
Judging from a recent Iowa Supreme Court ruling related to an Iowa Utilities Board decision, I would guess that at least three justices (Edward Mansfield, Bruce Zager, and Thomas Waterman) will agree with Judge Farrell and defer to the Board of Medicine’s decision. Judging from a recent case on juvenile sentencing guidelines, I would guess that the same three Iowa Supreme Court justices will reject equal protection and due process claims that are based on the Iowa Constitution and go beyond U.S. Supreme Court precedent. The big question is whether the remaining four Iowa Supreme Court justices will find any part of Planned Parenthood’s case compelling enough to overturn the rule adopted by a board with jurisdiction over the practice of medicine.
Rod Boshart’s report for the Cedar Rapids Gazette included reaction from both sides:
“The board is pleased the district court has affirmed the board’s authority and the legal process that was used to adopt this rule, which protect the health and safety of Iowans,” said Mark Bowden, executive director for the Iowa Board of Medicine.
“The board carefully studied the issue and provided ample opportunity for public comment before adopting the rule,” he added. “The board considers a thorough medical history and physical examination to be the cornerstone of good medical care. The rule requires this valid physician-patient relationship prior to prescribing abortion-inducing drugs, and the rule requires an appropriate follow-up appointment to confirm the termination of the pregnancy and to evaluate the woman’s medical condition.”
Jenifer Bowen, executive director of Iowa Right to Life, said her organization welcomed the district court ruling “in favor of the Iowa Board of Medicine’s decision to ban the dangerous practice of webcam abortion” in Iowa. […]
Penny Dickey, chief operating officer of Planned Parenthood of the Heartland, called the ruling “incredibly disappointing” in affirming a ban on “tele-health delivery of medication abortion” that has been demonstrated “to be just as safe and effective” as in-person protocols used at her agency’s clinics.
“Planned Parenthood of the Heartland will continue to provide the full range of reproductive health services at our health centers, while this dangerous rule remains blocked by the courts,” Dickey said in a statement.
“While the Board of Medicine claims it is acting to protect women’s safety and health, its true purpose is to prevent women from receiving an abortion if and when they need one. And the rule would actually jeopardize women’s health by delaying their care,” she added. “Planned Parenthood of the Heartland will continue to fight for evidence-based medicine and a woman’s right to make her personal health care decisions.”
The Des Moines Register’s report by Tony Leys included leading political reaction:
Branstad applauded Farrell’s decision on the issue.
“After receiving petitions from medical professionals that raised concerns about the quality of care women were receiving under these webcam procedures, the Iowa Board of Medicine provided a standard of care for webcam abortions,” spokesman Jimmy Centers wrote. “Gov. Branstad is pleased the judge upheld the Board of Medicine’s action, which ensures women receive the high standard of care that they deserve.”
State Sen. Jack Hatch, Branstad’s Democratic opponent in this fall’s election, said the medical board’s decision was an attempt to “overregulate” health care. “I believe we should free doctors and providers from burdensome regulation and allow them to do what they do best: practice medicine,” Hatch wrote. “They should determine the correct uses for telemedicine, not state bureaucrats and unelected board members.”
UPDATE: Thanks to Bleeding Heartland user ahawby for providing background on Judge Farrell, which may be relevant to how he approached this case.
The Iowa Democratic Party released this statement on the ruling:
Des Moines – A Polk County District Court judge ruled today to severely limit rural Iowa women’s access to quality, reproductive health care. This decision is in line with Republican’s attempts to put extreme ideologies before women’s health and their rights when it comes to making personal medical decisions with their doctors.
Telemedicine has proven to be a safe, effective process to meet the health care needs for Iowa women, especially those in rural areas. This ruling reflects the GOP’s extreme agenda to limit a woman’s ability to make her own health care decisions and confirms once again that Republicans like Terry Branstad and the Board of Medicine he appointed are completely out of touch with women and the families they represent.
“Once again, in an attempt to regulate and restrict women’s health care and their personal choices, Republicans like Terry Branstad are making it more difficult for a woman to have access to safe, legal and quality care,” said Iowa Democratic Party spokesperson Christina Freundlich. “Every Iowa woman deserves the right to reliable health care, regardless of her zip code. Republicans can’t seem to stop putting their extreme ideology before the rights of Iowa women to make their own medical decisions with their doctor.”