Five key points about the Iowa Supreme Court striking down the telemedicine abortion ban

The Iowa Supreme Court ruled unanimously yesterday that Iowa’s ban on the use of telemedicine to provide abortion services was unconstitutional because it imposed an “undue burden” on women seeking an abortion. You can read the whole ruling here (pdf). I’ve posted highlights after the jump, along with some reaction to the decision from both sides in the debate.

A few points are worth remembering.

1. A unanimous Supreme Court ruling indicates that this decision was not a close call. It was an easy call.

When state attorneys representing the Board of Medicine acknowledged in court filings (and Solicitor General Jeffrey S. Thompson concurred about two-thirds of the way through the oral arguments) that Iowa women have a fundamental right to an abortion, this case was over.

2. You can’t pin this decision on a tendency toward “judicial activism” on the high court.

Justice David Wiggins, whom social conservatives love to hate, authored the decision. But Justices Edward Mansfield and Thomas Waterman joined in the ruling, even though those conservatives appointed by Governor Terry Branstad in 2011 are generally inclined to defer to regulatory agencies. For instance, see their dissent from a majority ruling last year, which overturned a decision by the Iowa Utilities Board. Mansfield and Waterman have also argued that a majority ruling on juvenile sentencing went too far, and held in connection with another case that an Iowa governor’s “reasons for granting commutation” are not “subject to judicial scrutiny.”

Whatever you think about Mansfield and Waterman, you can’t call them judicial activists. They would not be inclined to substitute their judgment for that of Iowa Board of Medicine members unless constitutional rights were at stake.

3. No one on the Iowa Supreme Court was fooled by the fake concern for the health of women seeking medical abortions at Planned Parenthood clinics.

Everyone could see that the Iowa Board of Medicine sought to reduce women’s access to abortion services, in the absence of any evidence that the procedure used by more than 7,000 Iowa women is unsafe, or that a doctor’s physical presence would make medical abortions safer.

This passage from pages 30-31 of the court ruling was particularly important:

Whenever telemedicine occurs, the physician at the remote location does not perform a physical examination of the patient. It is difficult to avoid the conclusion that the Board’s medical concerns about telemedicine are selectively limited to abortion.

Most significantly, as noted above, the Board has adopted a rule that generally approves of the use of telemedicine, recognizing the existence of “technological advances [that] have made it possible for licensees in one location to provide medical care to patients in another location with or without an intervening health care provider.” Iowa Admin. Code r. 653-13.11. The rule authorizes the use of telemedicine in accordance with “evidence-based” guidelines and standards. Id. r. 653-11(2). […] The Board appears to hold abortion to a different medical standard than other procedures.9

4. The only surprising thing in this saga was Polk County District Court Judge Jeffrey Farrell’s decision to uphold the telemedicine abortion ban.

I have no idea why Judge Farrell saw this case so differently; Bleeding Heartland user ahawby provided some interesting speculation.

It must be embarrassing for a relatively new District Court judge to be overturned by a unanimous Iowa Supreme Court on a high-profile case. The good news for Farrell, who had been on the bench for less than a year when he considered Planned Parenthood’s lawsuit: he avoided making himself a target of the religious right going into his first retention election in 2016.

In contrast, Bob Vander Plaats’ FAMiLY Leader organization slammed District Court Judge Karen Romano in a mass e-mail after she granted Planned Parenthood’s request for a stay of the telemedicine ban while the legal challenge was pending. While Romano did not rule on the merits of Planned Parenthood’s lawsuit, pages 13 through 15 of her decision identified some key flaws in the logic underpinning the Board of Medicine’s rule. (CORRECTED to note that after encouraging Iowans “to remember Judge Karen Romano’s activism when she is up for retention in November 2016,” FAMiLY Leader Vice President Chuck Hurley told the Des Moines Register, “We are definitely discussing” a formal campaign against retaining Romano, then clarified the next day, “we are not launching a campaign against Judge Romano, nor do we have any plans to do so at this time.”)

5. Despite the telemedicine ban’s eventual demise, the effort to reduce women’s access to legal abortions will still be a political plus for Branstad’s former legal counsel Brenna Bird (formerly Brenna Findley), assuming she runs for office in Iowa again someday.

She played a big role behind the scenes in getting the Board of Medicine to go for this policy. During the summer of 2013,

Attorneys for the board [of Medicine] and from the state Attorney General’s Office cautioned the board against moving so quickly, while Brenna Findley, Gov. Terry Branstad’s legal counsel and the state’s administrative rules coordinator, advised that the board could move forward immediately [with the telemedicine ban].

Some attorneys would regret giving advice that put a governor and members of a state board behind a blatantly unconstitutional policy, but Bird doesn’t need to, because anti-choice Republicans won’t accept that there was anything wrong with the telemedicine ban. To them, Bird will be a hero whose advocacy was thwarted by “tyrants in black-robes.”

Any relevant comments are welcome in this thread.

Statement provided by Governor Branstad’s communications director Jimmy Centers:

After receiving petitions from medical professionals from all across Iowa 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. Although the Court upheld parental notification, the governor is extremely disappointed that the Iowa Board of Medicine’s action, which ensured women received the high standard of care that they deserve, was reversed by the Iowa Supreme Court.

Statement released by the Iowa Democratic Party:

DES MOINES – IDP Chair Dr. Andy McGuire issued the following statement in response to a ruling by the Iowa Supreme Court this morning upholding a woman’s right to healthcare and expanding access to vital care and services for Iowa women:

“I applaud today’s decision by the Iowa Supreme Court in siding with women’s health care over the needless partisanship of Governor Branstad. All Iowa women, regardless of their location or socioeconomic status, should have access to treatments and services that are vital to their well-being. Today’s decision empowers women with the resources and information needed to take charge of their own health care decisions. That’s a major victory for Iowa women, their families and our state.”

From Tony Leys’ report for the Des Moines Register:

Suzanna de Baca, Planned Parenthood of the Heartland’s president, hailed the ruling. “This is a major victory for the women of Iowa and for reproductive rights in general,” she said. De Baca added that it was significant that the justices were unanimous. “It really validates our belief that this was politically motivated,” she said, referring to the medical board’s attempt to ban the telemedicine system.

De Baca was asked if the ruling also could be seen as a rebuke to Branstad, who appointed the medical board members. She paused, then replied: “I think we are thrilled that we have an independent judiciary, who make decisions based on evidence and not on politics.” […]

Jenifer Bowen, executive director of Iowa Right to Life, said she’d heard conflicting theories on whether the Iowa justices’ ruling could be appealed to federal court. Bowen said the ruling was a setback. “We’re devastated,” she said, “but obviously we’re not going to wave the white flag of surrender.”

Bowen said she was disappointed by the “lackluster” presentation of the medical board’s legal case before the Supreme Court in March. That presentation was made by a lawyer from the office of Attorney General Tom Miller, a Democrat who supports abortion rights.

Miller’s spokesman, Geoff Greenwood, replied to Bowen’s complaint about how the case was presented. “Our office vigorously represented our client state agency, as our professional legal staff does every day,” Greenwood wrote in an email to the Register. He noted that Solicitor General Jeffrey Thompson personally handled the case.

For what it’s worth, I thought Thompson conducted himself well; it’s not his fault he was stuck defending a weak case. You can listen to the oral arguments at Radio Iowa’s website and decide for yourself. Alice Clapman did a superb job representing Planned Parenthood during the first half of the oral arguments.

Excerpts from Justice David Wiggins’ decision in Planned Parenthood of the Heartland, Inc. and Jill Meadows v. Iowa Board of Medicine, joined by Chief Justice Mark Cady and Justices Brent Appel, Daryl Hecht, Edward Mansfield, and Thomas Waterman. Justice Bruce Zager recused himself from this case, presumably because his daughter is a law partner of one of the attorneys representing Planned Parenthood.

On page 3, Wiggins explains that the court focused on the constitutional question and not on Planned Parenthood’s separate claims about procedural flaws in the way the Board of Medicine adopted the rule.

For purposes of this appeal, we will assume the Board properly enacted the rule and did not violate any of the procedural or rulemaking provisions of Iowa Code chapter 17A (2013), other than Planned Parenthood’s claim the rule violates section 17A.19(10)(a), which provides an agency’s action is invalid when “substantial rights of the person seeking relief have been prejudiced” and the action is “[u]nconstitutional on its face or as applied.”

The heart of the matter, summarized on pages 3-4:

The Board has conceded the Iowa Constitution provides a right to an abortion that is coextensive with the right available under the United States Constitution. Planned Parenthood argues the Iowa Constitution affords a broader right, and we should therefore apply a strict scrutiny analysis under the Iowa Constitution to the rule. We need not resolve this question because we conclude, for the reasons stated herein, that the Board’s rule violates the controlling “undue burden” test announced by the United States Supreme Court as the federal constitutional test. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878-79, 112 S. Ct. 2791, 2821, 120 L. Ed. 2d 674, 715-16 (1992) (plurality opinion) and Gonzales v. Carhart, 550 U.S. 124, 146, 158, 127 S. Ct. 1610, 1626- 27, 1633, 167 L. Ed. 2d 480, 502, 509-10 (2007). Thus, the contested rule violates the Iowa Constitution under the less stringent Iowa constitutional standard advanced by the Board. We therefore reverse the decision of the district court as to the contested portions of the rule.

Pages 4 through 16 review the facts of the case, including Planned Parenthood’s procedure for using telemedicine and how the Iowa Board of Medicine adopted its 2013 rule. This passage from page 6 struck me as important:

The Board has adopted a rule effective June 3, 2015, regarding the use of telemedicine by Iowa physicians. The regulations make the following findings:

1. The board recognizes that technological advances have made it possible for licensees in one location to provide medical care to patients in another location with or without an intervening health care provider.

2. Telemedicine is a useful tool that, if applied appropriately, can provide important benefits to patients, including increased access to health care, expanded utilization of specialty expertise, rapid availability of patient records, and potential cost savings.

3. The board advises that licensees using telemedicine will be held to the same standards of care and professional ethics as licensees using traditional in-person medical care.

Discussion of Planned Parenthood’s constitutional claims begins on page 16. The Iowa Supreme Court has never determined ” if the Iowa Constitution protects a woman’s right to terminate her pregnancy.” Planned Parenthood asked the court to do so in this case. From pages 17 through 19:

Many states considering this issue under their state constitutions have found their state constitutions provide such a right. […]

However, in this case, we need not decide whether the Iowa Constitution provides such a right, and if so, whether regulations affecting that right must pass strict scrutiny.2 The Board in its brief and in its oral argument conceded a woman has a right to terminate her pregnancy protected by the Iowa Constitution that is coextensive with the federal right.3 For the reasons discussed herein, we find the challenged rule fails to meet the federal undue burden test for constitutionality.

Beginning on page 19, Wiggins explains how the U.S. Supreme Court established the “undue burden” test and how other courts have interpreted that test in evaluating abortion restrictions. The section applying those criteria to the Iowa Board of Medicine’s rule begins on page 21. Although “The underpinning of the Board’s rule is that competent medical care to promote the health of a woman seeking to terminate her pregnancy requires a physician to do a physical examination,” the “weight of the record evidence indicates that a pelvic examination prior to administering the mifepristone does not provide any measurable gain in patient safety.”

From pages 24 and 25:

The next justification for the presence of a physician was the off- label use of the medications by Planned Parenthood. However, studies have shown that the off-label protocol is safer and more effective than the FDA approved protocol for administering the drugs. The method presently used by Planned Parenthood conforms to the present medical standard of care for administering the drug.

An additional reason for the rule prohibiting telemedicine abortions is that a patient may never meet face-to-face with the physician prescribing the medication. […] However, an increasing number of medical procedures are being performed today by telemedicine. Studies have shown medical termination of pregnancies can be “provided safely and effectively by nonphysician clinicians.” […] Second, studies have shown that telemedicine abortions pose no further risk of complications to the woman than medication abortions done with the physician present.

Nor did evidence back up other arguments used to support the need for a physician’s presence during medical abortion.

Beginning on page 26, the court considered whether it poses an “undue burden” to force women to drive perhaps hundreds of additional miles to a clinic where they can see a doctor in person. From page 29:

Consistent with United States Supreme Court precedent, we must now weigh the health benefits of rule 653-13.10(2) through 13.10(4) against the burdens they impose on a woman who wishes to terminate a pregnancy. As the foregoing indicates, the record evidence showed very limited health benefits. While undoubtedly at an abstract level everyone would prefer to see a doctor in person every time they have a medical issue, the reality of modern medicine is otherwise. In this case, the record indicates the physician plays an important role in reviewing the ultrasound images and dispensing the prescribed medications, but those roles can be performed without the physician being personally present. The record also provides almost no medical support for the necessity of a pelvic exam prior to dispensing the medication. At the same time, the record indicates that the telemedicine rule would make it more challenging for many women who wish to exercise their constitutional right to terminate a pregnancy in Iowa to do so.

The final paragraphs on pages 30 and 31 state what should have been obvious to the District Court judge:

Whenever telemedicine occurs, the physician at the remote location does not perform a physical examination of the patient. It is difficult to avoid the conclusion that the Board’s medical concerns about telemedicine are selectively limited to abortion.

Most significantly, as noted above, the Board has adopted a rule that generally approves of the use of telemedicine, recognizing the existence of “technological advances [that] have made it possible for licensees in one location to provide medical care to patients in another location with or without an intervening health care provider.” Iowa Admin. Code r. 653-13.11. The rule authorizes the use of telemedicine in accordance with “evidence-based” guidelines and standards. Id. r. 653-11(2). As the Seventh Circuit observed in the somewhat different circumstances presented in Van Hollen, “An issue of equal protection of the laws is lurking in this case.” 738 F.3d at 790. The Board appears to hold abortion to a different medical standard than other procedures.9

After careful consideration, we hold that rule 653-13.10(2) through 13.10(4) places an undue burden on a woman’s right to terminate her pregnancy as defined by the United States Supreme Court in its federal constitutional precedents. Because the Board agrees the Iowa Constitution protects a woman’s right to terminate her pregnancy to the same extent as the United States Constitution, we find the rule violates the Iowa Constitution.

UPDATE: At the On Brief blog, Ryan Koopmans explains why the U.S. Supreme Court could hear an appeal of the Iowa Supreme Court ruling, should the State of Iowa/Board of Medicine file one.

Planned Parenthood asked the Iowa Supreme Court to rule that the right to an abortion is broader under the Iowa Constitution than it is under the US Constitution.  The Court declined to decide that issue-saving it for another day-and thus assumed that the Iowa Constitution and the US Constitution are exactly the same on the subject. As a result, the justices only analyzed the telemed-abortion ban under the federal “undue burden” standard “as defined by the United States Supreme Court in its federal constitutional precedents.”  In other words, the only reason that the telemed-abortion ban violates the Iowa Constitution is because the Iowa Supreme Court believes that it violates the US Constitution.  If it doesn’t-if the Iowa Supreme Court is wrong-then the Iowa Supreme Court would have to face the question whether the Iowa Constitution and the US Constitution differ on the subject.

For that reason, the US Supreme Court can take the case.  (Of course, it doesn’t have to, and the chance of getting the Supreme Court to take any case is slim.)

Koopmans notes that in an analogous situation, the U.S. Supreme Court overturned a 2002 Iowa Supreme Court ruling.

SECOND UPDATE: Koopmans updated his post:

I was wrong! In a footnote in their appeal brief, Planned Parenthood dropped its US Constitution claim and stated that it was now, on appeal, “rely[ing] solely on the Iowa Constitution.”  […]

That changes everything.  The Iowa Supreme Court did conclude that the telemed-abortion ban violates the US Constitution  (and thus violates the Iowa Constitution), but since there is no federal claim, the US Supreme Court would not have jurisdiction to hear the case.  And that may have been the point of dismissing the federal claim.

THIRD UPDATE: Several days after this ruling, Governor Terry Branstad was still clinging to the fiction that the State of Iowa had grounds to appeal to the U.S. Supreme Court.

LATE UPDATE: The prize for “bizarro world” interpretation of a court decision goes to Bob Vander Plaats’ FAMiLY Leader organization, for their commentary titled, “Further analysis: Will abortions at gas stations be next?”

First, they claimed the unanimous Iowa Supreme Court put politics ahead of women’s health:

Even though a panel of doctors warned the chemical abortion procedure used in telemed abortions is too risky to undergo without a physician’s supervision and were so concerned about the mother’s life and health that it banned the “webcam” method altogether, the Iowa Supreme Court said having a doctor present was too much of a “burden” on the “right” of abortion. […]

This decision is so determined to free abortion from any “burden,” it ultimately strips women of the most basic health and safety protections. The Court has essentially brought back the back-alley and coat-hanger abortion and called it a protected “right.”

Sorry, no. Medical abortions performed early in pregnancy prevent women from seeking surgical abortions later. No one has done more than Planned Parenthood to make back-alley abortions a distant memory. We won’t see Iowa women resorting to coat hangers again unless the U.S. Supreme Court overturns Roe v Wade, and activists like the FAMiLY Leader types are able to change state law to ban most or all abortions.

The weight of the medical evidence–including multiple peer-reviewed studies and the official policy of the American College of Obstetricians and Gynecologists–indicates Planned Parenthood clinics are using a safe procedure. The panel of doctors on the Iowa Board of Medicine were prioritizing their own ideological views about abortion.

The FAMiLY Leader “analysis,” if you can call it that, goes on to assail the “arrogance of judicial activism.”

“The Iowa Supreme Court said, ‘We’re going to test whether this is wise and balanced and fair,'” noted The FAMiLY LEADER Chief Counsel Chuck Hurley. “That is deeply disturbing. This is a case of judicial activism. The 7th and 9th Circuits had the same arrogance, saying, ‘No, we will decide whether the legislature or the board of medicine made a wise medical decision here.'”

In fact, part of the Iowa opinion highly criticized the medical rationale of the Board of Medicine. In the end, the Iowa Supreme Court, which is made up of seven judges, overruled the Board of Medicine, which has seven doctors.

“Surely doctors on a medical board would know which procedures need a doctor present and which do not, better than the lawyers on the Court would,” Hurley said. “The thing to me that really cries arrogance is that the Court substituted their medical knowledge for that of the doctors on the Board.”

As noted above, at least two of the Iowa Supreme Court justices who concurred in this opinion are generally inclined to defer to state boards on administrative rulemaking. That they joined this decision to overturn the telemed abortion ban speaks to the shoddy reasoning behind the Iowa Board of Medicine’s rule, and to the constitutional rights at issue.

Finally, the FAMiLY Leader warns that the Iowa Supreme Court ruling “creates a precedent for striking down any incremental check on abortion.”

Despite all the progress made in attempting to ensure abortions are “safe, but rare,” activist courts – including Iowa’s – have revealed they’re now willing to strike down any law that gets in the way of rampant abortion. “Safety” and “rarity” are not values these courts respect.

Activist judges are decimating the incremental approach of restricting abortion. In Iowa, they now have a precedent for striking down virtually anything short a human-life amendment, a constitutional provision for the sanctity of life from conception to natural death.

The Iowa Supreme Court has unanimously declared it won’t allow commonsense restrictions, not even to protect the health and safety of women, to stand in its way of making abortion as easy and commonplace as possible.

Drop the pretense that the telemed abortion ban was about protecting women’s health. Anyone paying attention could see from the beginning that preventing Iowans from using telemedicine to obtain one medication with one specific purpose was part of “the incremental approach of restricting abortion.” That’s why the Board of Medicine’s rule didn’t withstand judicial scrutiny.

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