Anti-abortion activists suffered a setback last month when the Iowa Supreme Court unanimously ruled unconstitutional the state ban on using telemedicine for medical abortions. But the health and human services budget for the fiscal year that began on July 1 contained two provisions sought by those who want to reduce the number of abortions performed in Iowa.
The first part of this post examines new language in the Iowa Code related to ultrasounds for women seeking abortions. Who was closer to the mark: Iowa Right to Life, which hailed the "HUGE life-saving victory" as the anti-choice movement's biggest legislative success in two decades? Or Planned Parenthood of the Heartland, which countered that the ultrasound language would neither change the standard of care at their clinics nor "directly impact a woman's access to abortion"?
Next, the post addresses language lawmakers first adopted in 2013 and renewed in the just-passed human services budget, which allows the Iowa governor to determine whether Medicaid should reimburse for abortion services. No other state has a similar provision.
Finally, I offer some thoughts on an odd feature of anti-abortion activism in the Iowa legislature. State Senate Republicans advocate more for restrictions on abortion rights and access than do GOP representatives in the House, even though "pro-choice" Democrats control the upper chamber, while all 57 members of the House majority caucus are nominally "pro-life." Iowa House leaders have not been eager to put abortion bills on the agenda. This year, rank-and-file House Republicans didn't even introduce, let alone make a serious attempt to pass, companion bills to most of the abortion-related legislation their counterparts filed in the state Senate.
NEW RULES ON ULTRASOUNDS FOR IOWA WOMEN SEEKING ABORTIONS
H.F. 573 Section 1. NEW SECTION. 146A. Prerequisites for abortion.
1. A physician performing an abortion shall certify in the woman's medical record all of the following prior to the performance of an abortion:
a. That the woman has undergone an ultrasound imaging of the unborn child that displays the approximate age of the fetus.
b. That the woman is given the opportunity to see the unborn child by viewing the ultrasound image of the fetus.
c. That the woman is given the option of hearing a description of the unborn child based on the ultrasound image and hearing the heartbeat of the fetus.
2. A physician who does not comply with this section is subject to license discipline pursuant to section 148.6.
3. For the purposes of this section, "abortion" means abortion as defined in section 146.1.
The House floor debate over the ultrasound bill was long and contentious. Democratic and Republican lawmakers offered many amendments. The House Journal for the day contains roll calls for all the votes. The only amendment that passed replaced the word "fetus" with "unborn child" three times.
On final passage, Iowa House members voted 57 to 39 to approve the ultrasound bill. State Representative Rob Taylor was the sole Republican to vote against it; he had also opposed it on the Human Resources Committee. Two Democrats were recorded as voting for the bill, but Representatives Sally Stutsman and Beth Wessel-Kroeschell both confirmed to me that they had accidentally pressed the wrong button. Later, they added notes to the House Journal stating that they meant to vote "nay" on House File 573.
A few weeks later, the ultrasound bill died in the Iowa Senate Human Resources Committee.
"A handful of Democrats have refused to allow a subcommittee on 20 pro-life bills filed over the past five years, so they are just repeating a pattern," said Sen. David Johnson, R-Ocheyedan.
He added he was "absolutely appalled" that he was not allowed to make a statement as ranking GOP member at the close of the committee's last 2015 meeting.
Committee Chairwoman Sen. Liz Mathis, D-Cedar Rapids, said the ultrasound bill that came from the Iowa House was "medically unnecessary" and ran counter to allowing women and men in Iowa to make their own medical decisions.
A bill is never truly dead until the Iowa legislature adjourns, however. Republicans on the conference committee working on health and human resources funding kept fighting to include ultrasound language in Senate File 505, an appropriations bill. It passed the Iowa Senate and House two days before lawmakers adjourned for the year. Here's the relevant language, from page 74.
PREREQUISITES FOR AN ABORTION
Sec. 75. NEW SECTION. 146A. Prerequisites for an abortion. Except in the case of a medical emergency, as defined in section 135L., for any woman, the physician shall certify both of the following before performing an abortion:
1. That the woman has been given the opportunity to view an ultrasound image of the fetus as part of the standard of care.
2. That the woman has been provided information regarding the options relative to a pregnancy, including continuing the pregnancy to term and retaining parental rights following the child's birth, continuing the pregnancy to term and placing the child for adoption, and terminating the pregnancy.
Note three substantive differences between that language and the House-approved ultrasound bill:
1. Senate File 505 states that medical personnel must inform a woman seeking an abortion about all of her options, including "terminating the pregnancy."
2. The budget bill says nothing about giving a woman seeking an abortion "the option of hearing a description of the unborn child based on the ultrasound image and hearing the heartbeat of the fetus."
3. The budget bill also says nothing about penalizing doctors for non-compliance with the ultrasound rules. In contrast, a House Republican staff analysis of House File 573 noted that doctors who do not comply "will be subject to disciplinary action by their professional board and possibly civil penalties up to $10,000."
A fourth difference, mostly symbolic but meaningful to anti-abortion activists: the relevant section of Senate File 505 refers only to the "fetus," rather than to an "unborn child."
I don't know how many Republican lawmakers were aware of those differences when they voted on the health and human services budget. Iowa Right to Life called the final language "very similar to the Ultrasound bill that passed out of the House a few months ago," even as the group quoted the section on informing women of all their options, including terminating the pregnancy. That group contends that giving women the option to view an ultrasound reduces abortions by 70 percent to 90 percent. Indeed, Mark Gius's peer-reviewed study published in the Journal of Applied Business and Economics found, "the odds of a woman having an abortion in a state with an ultrasound law are only 25% of the odds of a woman having an abortion who lives in a state without such a law. The negative effect of this law on a young woman's demand for abortion is rather significant and robust." Gius analyzed data from sixteen states that had adopted ultrasound laws before 2009. Some of those requirements are more strict than what just took effect in Iowa.
Iowa Right to Life leaders have incentive to exaggerate the impact of the ultrasound language, because in recent years hard-core "personhood" activists have criticized Iowa's largest anti-abortion advocacy group, as well as state legislators deemed insufficiently committed to ending all abortions.
On the other hand, the research by Gius suggests that fewer Iowa women will choose to have an abortion once the ultrasound law has taken effect. How many fewer will be hard to measure, since the abortion rate already has been falling in Iowa more sharply than in the U.S. as a whole.
Planned Parenthood of the Heartland, the largest abortion provider in Iowa, released this comment on the ultrasound language in Senate File 505:
It is already part of Planned Parenthood's standard of care to provide every woman with the opportunity to view her ultrasound, and also to provide her with information about her pregnancy options including adoption, parenting and abortion. While this is not going to directly impact a woman's access to abortion, it is not the job of lawmakers to dictate the practice of medicine.
To sum up, I wouldn't call the ultrasound language a "huge victory" for anti-abortion forces. The ultrasound will not add any new roadblocks or delays to the process of getting an abortion. Viewing the image will not be mandatory, and health care providers will advise women of all options, without putting their thumbs on the scale by talking only about options that involve continuing the pregnancy. Still, it sets a bad precedent for the state of Iowa to tell doctors what they must say to women seeking a legal medical procedure. Reproductive rights supporters would have preferred for Democrats to take a harder line on this issue.
Tony Leys's June 4 report for the Des Moines Register included some insight on the horse trading:
Rep. Linda Miller, a Bettendorf Republican who helped negotiate the overall bill between the House and Senate, said the new rule "just provides women with more information and more informed choices." Even if it's true that abortion providers usually offer patients the chance to view sonograms, she said, it was important to put the requirement in law.
Miller said legislators didn't seriously consider requiring women to look at sonograms before obtaining abortions.
Miller said Senate Democrats agreed to the bill's abortion section as part of a deal. She said that in return, House Republicans agreed to support resumed services at the state mental hospital at Mount Pleasant, which Branstad is trying to close.
Sen. Amanda Ragan, a Mason City Democrat, agreed that the two issues were priorities for the two sides, but she said in a statement she didn't agree that they were linked in negotiations.
Lawmakers cut the final budget deals behind closed doors, so we'll never know whether Miller or Ragan more accurately characterized the talks. If Miller is correct, Republicans got something for nothing here, since Governor Terry Branstad item-vetoed the funding in the human services budget for keeping the mental health facility in Mount Pleasant open.
Side note: during the 2015 legislative session, the Iowa Senate approved by 49 votes to 0 a bill requiring radiology facilities to notify women who had mammograms if the women had dense breast tissue. Senate File 205 even specified language to be used when notifying patients about dense breast tissue. The bill never made it to the governor's desk, because Miller buried it in a House Human Resources subcommittee.
As a woman with a strong family history of breast cancer, I sympathize with the "Iowa Army of Pink" and other advocates who lobbied for the mammogram bill. However, state legislators shouldn't micromanage how physicians speak to women getting a mammogram any more than they should dictate medical practices to abortion providers. Besides, the language included in Senate File 205 "could be based on outdated medical findings" within a year or two, or sooner.
RENEWED LANGUAGE ON THE GOVERNOR'S POWER TO APPROVE MEDICAID REIMBURSEMENT FOR ABORTIONS
Iowa's governor is the only state chief executive in the country granted the power to decide which abortions should be covered by Medicaid. The strange provision was neither the first nor second choice of statehouse Republicans.
For decades, Iowa's relatively restrictive rules on Medicaid coverage of abortion caused no political controversy. But in 2011, members of the new GOP Iowa House majority set about ending most or all taxpayer funding for abortion services.
Plan A was to put new language in the health and human services budget, stating that Medicaid would pay for abortions in only two circumstances: either the woman had had an incomplete miscarriage (necessitating a D & C to avoid infection), or continuing the pregnancy would pose a threat to the woman's life. Senate Democrats resisted the policy change. The conflict took Iowa to the brink of a government shutdown, as legislators argued over the abortion language right up to the final day of the 2011 fiscal year. Republicans weren't able to get new limits on Medicaid coverage of abortions or a requirement that women on Medicaid view an ultrasound before obtaining an abortion. The same debate ended the same way the following year, only without the brinksmanship over a government shutdown.
Time for Plan B. Shortly after the 2012 legislative session, several dozen House Republicans asked the Iowa Department of Human Services to begin emergency rule-making to stop all Medicaid coverage of abortion, or at least stop paying to terminate pregnancies because of severe fetal abnormalities. DHS Director Chuck Palmer denied their petition, and Governor Branstad told legislators they must change Iowa code in order to further restrict Medicaid coverage of abortion.
House Republicans turned to Plan C during the 2013 legislative session. Yet again, language on Medicaid and abortion was one of the last disputes to be resolved. Senate Democrats gave a little ground on the issue largely because they were desperate to get some form of Medicaid expansion (as foreseen under the 2010 Affordable Care Act) into the health and human services budget. The compromise language didn't allow the governor to deny a Medicaid recipient permission to have an abortion, but it allowed him to decide later whether Medicaid would reimburse health care providers for abortion services.
Branstad never had to exercise that power, because the University of Iowa Hospitals opted not to seek reimbursement for abortions provided to women on Medicaid. The cost of a couple dozen abortions a year wasn't worth the political headache.
In one sense, Republicans got the outcome they were seeking: Medicaid coverage of abortions in Iowa ended, even though language to that effect never made it into state law. On the other hand, women on Medicaid have continued to be able to terminate pregnancies in cases of rape, incest, a threat to the mother's health, or a severe fetal abnormality. The University of Iowa Hospitals (which receive substantial state funding) absorb the expense, rather than the Medicaid program itself. So arguably, Republican lawmakers did not achieve their goal of ending all direct or indirect taxpayer funding for abortions.
This spring, Branstad submitted a draft human services budget "that does not call for his approval for reimbursement on Medicaid claims," on the grounds that he hadn't been asked to approve coverage for an abortion in two years. House Republicans insisted on keeping the language in the budget bill for symbolic reasons. You can find the relevant text on pages 26 and 27 of Senate File 505.
THE CONTRAST BETWEEN ANTI-ABORTION EFFORTS IN THE IOWA HOUSE AND SENATE
The last "pro-choice" Republicans to serve in the Iowa House were Gene Maddox and Libby Jacobs, who retired in 2006 and 2008, respectively. Maggie Tinsman was the last Iowa Senate Republican to support abortion rights; she lost her 2006 primary.
The Iowa GOP puts the anti-abortion planks first in the state party platform, indicating that this issue is a top priority. With statehouse Republicans united in opposition to abortion rights, it should be easy for supporters to advance corresponding legislation, at least in the Iowa House, where the GOP has had a majority since 2011.
Things haven't worked out that way.
Small steps in the chamber controlled by "pro-life" politicians
Iowa House Speaker Kraig Paulsen and Majority Leader Linda Upmeyer have never flagged social issues as a key area of the legislature's work in their opening remarks to the 2011, 2012, 2013, 2014, or 2015 legislative sessions. Some years, the Iowa House has sent one anti-abortion bill to the Iowa Senate--some years not even that many.
House leaders have sought to avoid floor debates on sweeping anti-abortion measures. For instance, in 2011 the entire leadership team helped to block a floor vote on a "personhood" bill. Instead, leaders have given their blessing to narrowly-construed anti-abortion bills, presumably less divisive for the general public.
Passing a 20-week abortion ban in 2011 turned out to be more work than House leaders might have expected. Three first-termers in the GOP caucus denounced that legislation as inadequate, since it would affect fewer than 1 percent of abortions performed in Iowa. They joined with Democrats to stop the 20-week ban from getting out of the House Human Resources Committee. Leaders had to reassign the bill to the Government Oversight Committee to get it to the House floor, where it passed without the support of the three Republican trouble-makers. Two of them (Kim Pearson and Glen Massie) did not seek re-election in 2012; the third (Tom Shaw) retired from the legislature in 2014.
During the 2013 legislative session, none of the anti-abortion bills introduced in the Iowa House made it past the first "funnel" deadline. The number of representatives willing to sign on to the most extreme bills dropped considerably too. Only sixteen of the 53 House Republicans co-sponsored one or both of the competing personhood bills introduced in 2013. Six of those sixteen also co-sponsored a personhood amendment to the Iowa Constitution. In contrast, 28 House Republicans (out of 60 at the time) co-sponsored the 2011 version of personhood legislation.
As described in the second part of this post, Iowa House leaders focused their anti-abortion efforts in 2013 on ending most Medicaid coverage of the procedure--a significant policy issue, but one affecting only about two dozen of more than 5,000 abortions performed per year in Iowa.
During the 2015 legislative session, the House version of the personhood state constitutional amendment, House Joint Resolution 9, attracted only eleven co-sponsors among the 57 House Republicans (Greg Heartsill, Steve Holt, John Wills, Sandy Salmon, Tedd Gassman, Matt Windschitl, Dean Fisher, Larry Sheets, Terry Baxter, John Kooiker, and John Landon). Only one member of the leadership team (Speaker Pro-Tem Windschitl) co-sponsored that amendment, which was never even assigned to a subcommittee. No one introduced regular House bills containing personhood language.
Aside from the state constitutional amendment, House Republicans introduced just two anti-abortion bills this year: the ultrasound legislation discussed in the first part of this post, and House File 422, "An Act prohibiting abortions at entities or institutions that receive state funds." That bill could have affected Planned Parenthood clinics as well as the University of Iowa Hospitals. Planned Parenthood of the Heartland doesn't receive any state funding for abortion services, but its clinics provide contraception and well-woman care to many Medicaid recipients. In any event, House File 422 never made it out of a Republican-controlled subcommittee. House leaders opted to push for the ultrasound bill, which (while important) won't prevent women determined to have an abortion from exercising that right.
LATE UPDATE: I should have mentioned that Republicans sought to use the health and human services budget for the 2016 fiscal year as a vehicle for excluding Planned Parenthood from receiving Medicaid funds. The relevant language was on pages 70 and 71 of of the House-amended version of Senate File 505, which passed in May. Whereas the ultrasound language became one of the final sticking points during health and human services budget negotiations, Republicans including House Human Resources Committee Chair Miller agreed much earlier during conference talks to discard language that would have eliminated the Medicaid Family Planning Waiver (under which Planned Parenthood receives most of its state funding in Iowa).
Bolder efforts in the chamber controlled by "pro-choice" politicians
In the Iowa Senate, where majority Democrats were sure to block any and all new restrictions on abortion, Republican lawmakers introduced more bills on the issue this year. The Senate version of a the state constitutional amendment on personhood had nine co-sponsors: Republicans Dennis Guth, Brad Zaun, Ken Rozenboom, Mark Chelgren, Mark Segebart, David Johnson, Amy Sinclair, Tim Kraayenbrink, and Democrat Joe Seng.
GOP senators introduced six abortion-related bills during the 2015 session that had no companion version in the lower chamber. As expected, none of those bills made it through an Iowa Senate subcommittee.
Senate File 11 (introduced by David Johnson) would have added to the Iowa Code an unconstitutional ban on using telemedicine for medical abortions, similar to language the Iowa Board of Medicine adopted as an administrative rule in 2013.
Senate File 12 (introduced by David Johnson) would have imposed a 72-hour waiting period on women seeking abortions--a significant hurdle for women who may drive long distances to see an abortion provider. The same bill would have instructed doctors to provide biased counseling, intended to discourage women from choosing to terminate a pregnancy.
Senate File 44 (introduced by Bill Anderson) would make abortion for the purposes of gender selection a class C felony. The criminal penalty would not apply to women seeking an abortion--only to those who perform the abortion, solicit or receive money for such an abortion, or coerce a woman to have an abortion for purposes of gender selection. (For what it's worth, my impression is that most women seeking abortions do not want to continue the pregnancy, period. The gender of the fetus plays no role in the decision.)
Senate File 55 (introduced by Brad Zaun) would not allow trust fund money related to the 2010 Affordable Care Act to be used to pay for most abortions or for insurance policies that cover abortions, except in a few limited circumstances such as a life-endangering illness in the pregnant woman.
Senate File 91 (introduced by Brad Zaun with co-sponsors Amy Sinclair, Jack Whitver, Jake Chapman, and Mark Chelgren) would ban most abortions after the 20th week of pregnancy, similar to the bill the Iowa House approved in 2011.
Senate File 118 (introduced by Brad Zaun with co-sponsors Bill Anderson, Dennis Guth, David Johnson, and Ken Rozenboom) was inspired by last year's U.S. Supreme Court ruling in the Hobby Lobby case. It would give Iowa employers a "religious conscience" exemption from covering contraception or abortion services in employer-provided health insurance.
Several of the bills Iowa Senate Republicans pushed this year would restrict abortion access more significantly than any bill GOP leaders in the lower chamber have tried to pass in recent years.
Why don't Iowa House Republicans do more to express their party's official position on reproductive rights? Not being a mind-reader, I can only speculate. My best guess is that House leaders do not believe the majority of Iowans support wide-scale restrictions on abortion. Consequently, they prefer not to hand Democrats a potential campaign issue. If they believed the general public supported their agenda on reproductive rights, they would send to the Iowa Senate as many bills as possible to restrict abortions, then complain loudly about "Gronstalling" (a term some Republicans coined for what they see as Senate Majority Leader Mike Gronstal's obstructionism).
As for why rank-and-file House Republicans don't introduce more anti-abortion bills and fight for their consideration, your guess is as good as mine. Back-benchers may prefer to pick their battles with leadership carefully.
Any relevant comments are welcome in this thread.
Final note: I got a kick out of this passage from the health and human services budget (pages 32 and 33):
The department of human services shall adopt rules to provide for coverage of telehealth under the Medicaid program. The rules shall provide that in-person contact between a health care professional and a patient is not required as a prerequisite for payment for services appropriately provided through telehealth in accordance with generally accepted health care practices and standards prevailing in the applicable professional community at the time the services are provided. Health care services provided through in-person consultations or through telehealth shall be treated as equivalent services for the purposes of reimbursement.
In other words, Iowa lawmakers instructed Medicaid to view interactions with doctors via telemedicine as "equivalent" to an in-person doctor's visit.
The Iowa Supreme Court's decision on telemed abortion alluded to that kind of hypocrisy. The State of Iowa can't encourage the use of telemedicine in nearly all areas of health care, then conjure up fake safety concerns to make women's access to medical abortions conditional on the presence of a doctor in the room.