Iowa Supreme Court: Ban on telemed abortion unconstitutional

Iowa's Supreme Court thrilled abortion-rights supporters and frustrated their foes Friday by unanimously approving the use of a controversial telemedicine abortion system.

The justices overturned an attempted ban on the system by the administration of Gov. Terry Branstad, who opposes abortion.

More than 7,200 Iowa women have used Planned Parenthood of the Heartland's video-conferencing system to obtain abortion-inducing pills since 2008. The system, the first of its kind in the nation, allows Planned Parenthood doctors in Des Moines or Iowa City to interact via video with patients in outlying clinics, then dispense the pills to the women via a remote-controlled drawer.

State regulators ruled in 2013 that the system should effectively be banned because of purported safety concerns. Planned Parenthood contended that the move was a blatant attempt to limit rural women's access to a legal medical procedure. The ban was put on hold while Planned Parenthood appealed in court. A district judge sided with the regulators in 2014, but the Supreme Court disagreed Friday.

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The justices decided 6-0 that the Iowa Board of Medicine's rule violated women's constitutional rights. The court noted that telemedicine is being used to provide many other types of health care. But the medical board only focused on telemedicine's use for abortion when it imposed a requirement that doctors personally perform physical exams on patients, the justices wrote.

"It is difficult to avoid the conclusion that the board's medical concerns about telemedicine are selectively limited to abortion," the court determined.

The Supreme Court concluded the medical board's rule imposed an unconstitutional "undue burden" on a woman's right to abortion. It noted that national standards do not require a physician to perform a physical examination on a woman before providing a medication abortion.

The court also noted that other staff members in the outlying Planned Parenthood clinics draw blood, take medical histories and perform sonograms on the patients, which are transmitted to the physicians. The justices wrote that they didn't see proof that an in-person exam by a doctor would "provide any measurable gain in patient safety."

Supporters say the telemedicine system provides a safe way to offer abortion services in rural areas where they otherwise are unavailable. The Iowa case is being watched nationally, because abortion providers in other states have considered setting up similar systems. This is believed to be the first time in more than 40 years that the state Supreme Court considered an abortion case.

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."

Branstad spokesman Jimmy Centers released a statement expressing the governor's frustration with the justices' ruling. He noted that the medical board's ruling came after it received a petition from 14 health-care professionals who were concerned about the system's safety. "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."

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.

Elizabeth Nash, a national analyst for the Guttmacher Institute, said Friday's Iowa ruling could lead abortion providers in other states to consider setting up telemedicine systems to dispense abortion pills. Minnesota is the only other place where such a system has been tried, and the effort there has been limited.

Nash, whose group supports abortion rights, said abortion providers have been wary of the controversy surrounding Planned Parenthood of the Heartland's telemedicine system in Iowa. "I think in other states they decided not to pursue it until the dust settled," she said. Friday's court ruling could settle quite a bit of that dust, she said.

However, 18 states have passed pre-emptive laws banning telemedicine abortion systems. Those states include Arkansas, Nebraska and Oklahoma, where Planned Parenthood of the Heartland also has clinics. A spokeswoman for the Des Moines-based agency said it has no plans to try to set up telemedicine abortion services outside Iowa.

The medical board, responding to petitions filed by abortion opponents, ruled in 2013 that the system's use was inappropriate and unsafe. The board, which licenses physicians, ruled that doctors must perform in-person physical exams before dispensing abortion pills. That would effectively have banned use of Planned Parenthood's telemedicine system.

Planned Parenthood noted that under a previous governor, the medical board looked at the telemedicine abortion system and found no problems. The 2013 ruling against the system came after Branstad, who opposes abortion, replaced all 10 members of the board. His replacement members included a Catholic priest and a former legislator known for introducing abortion-limiting bills.

The medical board's ruling was placed on hold while Planned Parenthood fought the matter in court. A Polk County district judge sided with the medical board last August. Planned Parenthood then appealed to the Iowa Supreme Court, which heard arguments in March.

A lawyer for the attorney general's office, who represented the board before the Supreme Court, contended that the board followed proper procedures, including having a public hearing and taking written comments, before making the decision. Critics noted that wording of the board's rules was taken nearly verbatim from a petition filed by abortion opponents.

In its ruling, the Supreme Court sidestepped Planned Parenthood's request that it declare a more extensive right to abortion under the Iowa Constitution. The justices said they didn't need to answer that question, because the medical board's rule violated the "undue burden" test established by the U.S. Supreme Court. However, the justices wrote that the decision was based on their finding that the rule would violate the Iowa Constitution.

The opinion was written by Justice David Wiggins, a political independent. Justice Bruce Zager, a Republican, did not participate in the case. Iowa Supreme Court justices don't generally explain reasons for such abstentions.

Three of the justices involved in Friday's decision were appointed by Branstad. Three were appointed by Democratic Gov. Tom Vilsack.