Planned Parenthood appeals to Iowa Supreme Court in telemedicine case

Yesterday Planned Parenthood of the Heartland asked the Iowa Supreme Court to put on hold a state rule banning the use of “telemedicine” for medical abortions. A Polk County District Court recently upheld that rule, on grounds Bleeding Heartland discussed here. Planned Parenthood argues that it is likely to succeed on the merits when the Iowa Supreme Court considers its appeal of the lower court ruling, that the state ban would “irreparably harm” Planned Parenthood and its patients, and that a temporary injunction on the rule while the appeal is pending “will not harm the interests of the other parties or the public.” A stay on the rule would allow women to continue to receive medical abortion access at seven Planned Parenthood clinics across Iowa where the teleconferencing system is available.

The Des Moines Register posted the full text of Planned Parenthood’s motion filed yesterday. After the jump I’ve posted key excerpts, which preview the substance of Planned Parenthood’s appeal.

I’m not an attorney, but my hunch is that the Iowa Supreme Court will overturn the lower court ruling–perhaps with two or three dissenters who would defer to the Board of Medicine, along the lines of the dissents in a recent case involving the Iowa Utilities Board.

To my mind, Planned Parenthood’s strongest argument is that the Iowa Board of Medicine approved a rule that “singles out abortion, banning telemedicine delivery of this service while encouraging other uses of telemedicine.” A Des Moines Register editorial published earlier this week underscored the hypocrisy of that position. I’ve enclosed excerpts from that piece at the end of this post. Governor Terry Branstad and others in his administration have celebrated the use of telemedicine in many ways that involve doctors or pharmacists dispensing medications without ever being in the same room as their patients.

Planned Parenthood’s filing with the Iowa Supreme Court makes three key points in the “factual background” section.

1. The state rule “bans a safe program for the telemedicine delivery of medication abortion services.”

Medical abortions is an “extremely safe and effective non-surgical method of terminating an early pregnancy (in the first nine weeks) […].”

Few physicians in rural Iowa are willing to perform abortions, so the telemedicine system has been the only form of access for women in many small counties. Nor is there any evidence of problems with Planned Parenthood’s system:

[S]tudies of PPH’s program have shown that it has an equally low incidence of complications and high patient satisfaction rate, as compared to PPH’s medication abortion services in sites where the physician is physically present. […]

Researchers also found that PPH’s program has significantly reduced the incidence of more invasive, surgical second-trimester abortions in Iowa.

2. The state rule “drastically reduces access to abortion and jeopardizes women’s health.”

Opponents of safe and legal abortion have openly sought to eliminate PPH’s telemedicine program so as to reduce access […], and that is precisely the effect that the rule will have. The Rule will make abortion unavailable in over 70 percent of the communities where it was previously provided. […] As a result, women will have to travel hundreds of additional miles to obtain an abortion. For example, a woman living in Rock Rapids will have to travel over 500 miles round trip–twice–to a clinic in Des Moines […] whereas she otherwise could access a medication abortion via telemedicine at a much closer clinic in Sioux City. […]

Researchers have studied the factors that influence the timing of abortions, and have found that the farther a woman has to travel to reach a provider, the more likely she is to have the abortion later in pregnancy. […]

Some women have medical conditions that make medication abortion significantly safer than surgical abortion. If delayed past nine weeks, they will be deprived of their safest option and left only with higher-risk options. […]

Other women are at risk unless they can conceal their abortion from abusive family members (for many, harder to do the farther they must travel) or disguise it as a miscarriage (as medication abortion, but not surgical abortion, allows them to do).

The filing also cites “psychological hardships” imposed on women who prefer a less invasive alternative to surgical abortion–especially important for some survivors of rape or sexual abuse.

3. The state rule “singles out abortion, banning telemedicine delivery of this service while encouraging other uses of telemedicine.”

The rule is “the first and only restriction the Board [of Medicine] has ever placed on the practice of telemedicine (which is widespread in Iowa). Indeed, the Board has committed to “reduc[ing]” regulatory barriers to telemedicine services.”

Planned Parenthood’s filing goes on to argue that the Iowa Supreme Court should grant a stay because plaintiffs are likely to succeed on the merits of their case. They point out that the Iowa Board of Medicine did not consider some important relevant information when it adopted the rule; the board’s “decision-making process was rushed and inadequate”; the board “overlooked numerous important matters” in a “results-driven approach,” including facts about the safety of Planned Parenthood ‘s program and the Board of Medicine’s own policies on telemedicine.

Planned Parenthood also challenges the legality of the rule because it imposes substantial harm on hundreds of women who will no longer be able to access medical abortions remotely, without any public health benefit to show for it.

In addition, the filing claims the rule was “motivated by an improper purpose,” in this case reducing abortion access (rather than protecting women’s health).

Furthermore, Planned Parenthood argues that the rule “violates the due process and equal protection rights” of the agency and its patients. Abortion has been recognized as a “fundamental right,” which means that any state rule limiting access to abortion is subject to a “strict scrutiny” legal standard (as opposed to a “rational basis” standard, which would be an easier legal hurdle to clear).

In upholding the rule, District Court Judge Jeffrey Farrell repeatedly cited federal case law to show that the ban on telemedicine abortions does not place an “undue burden” on women seeking an abortion. Planned Parenthood’s appeal notes that “many other state courts have declined to adopt this standard, finding that it does not sufficiently protect a woman’s fundamental privacy rights.” (Side note: in two recent cases related to juvenile sentencing standards, four of the seven Iowa Supreme Court justices were willing to go beyond U.S. Supreme Court precedent protecting citizens’ rights.)

The “strict scrutiny” standard requires the state to show that the law or administrative rule being challenged is “narrowly tailored to the achievement of a compelling state interest.” The Iowa Board of Medicine rule does not advance any compelling state interest; nor is it “narrowly tailored.”

Planned Parenthood also disagrees with the District Court’s interpretation of the federal “undue burden” standard, arguing that the ban on telemedicine abortion “fails under this standard for two independent reasons. First, it does not actually advance women’s health. […] Second, by effectively eliminating abortion in over 70 percent of the communities where it is currently provided and forcing women to travel hundreds of additional miles–multiple times–to reach an in-person physician, the Rule imposes a substantial obstacle on women seeking an abortion.”

Planned Parenthood’s filing argues that it and its patients will be “irreparably harmed” if the state rule is allowed to go into effect, whereas there is “no evidence that the Board will be harmed in any way by the continuation of PPH’s telemedicine program pending appeal, nor that any patients will be at risk.”

From an unsigned Des Moines Register editorial published on August 25: State wants it both ways on telemedicine.

Two prominent businessmen, John Pappajohn and Bruce Rastetter, have invested $2.5 million in an Iowa City startup company called TelePharm. The company provides technology that allows a pharmacist in one location to manage pharmacies in other locations. Instead of being physically present, a licensed pharmacist remotely verifies prescriptions and can consult with patients using a videoconferencing system. […]

Gov. Terry Branstad is excited about the idea, too. He attended the opening of a telepharmacy in Victor last year, calling it “an innovative idea that hopefully will catch on here and be able to be utilized all across our state.”

The Iowa Board of Pharmacy has approved four waivers from Iowa’s pharmacy regulations so these telepharmacies could open in Zearing, West Liberty, Brooklyn and Victor. […]

Going forward, as the Board of Medicine crafts policies on the use of telemedicine, board members will need to reconcile whatever they do with the ugly precedent they set on telemedicine last year. […] [T]he medical board was intent on eradicating an innovative system Planned Parenthood had used for years with no problems to serve women in distant parts of Iowa. […]

The logic shown by the Board of Medicine represents thinking that jeopardizes health services now used by thousands of Iowans. Psychiatrists counsel patients using Skype. Radiologists read test results and burn specialists evaluate victims remotely. Someone with a pacemaker can strap on a wrist electrode at home and transmit information to a physician instead of driving to the office.

Is the medical board going to micromanage all physicians providing care remotely the way it did with those who provide abortions? Will it require a cardiologist to schedule a follow-up appointment at the same location where a heart surgery was performed? Will it ban another medical professional from examining the patient? Will it demand physicians stand next to patients swallowing other medications?

A rural state like Iowa should embrace telemedicine. It allows specialists to treat more patients and provides Iowans access to care they may not otherwise have.

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