Iowa Supreme Court hears arguments against telemed abortion ban

By Rod Boshart, Gazette Des Moines Bureau

DES MOINES - The Iowa Supreme Court was asked Wednesday to decide whether state regulators acted within their authority to curb telemedicine abortions out of health and safety concerns or overstepped their bounds in limiting Iowa women's access to a legal medical procedure.

Alice Clapman, an attorney representing Planned Parenthood of the Heartland, asked the six justices who heard the appeal to overturn Polk County District Judge Jeffrey Farrell's ruling that effectively could halt a first-in-the-nation telemedicine practice that has provided abortion-inducing pills to about 7,000 Iowa women since 2008.

'The board has no medical evidence to support its decision,” Clapman said in urging the Iowa court to 'honor its own tradition of zealously protecting individual rights and accordingly to hold that the board rule violates the Iowa Constitution because it deprives women of their reproductive freedom.”

However, Jeffrey Thompson, solicitor general in the Iowa Attorney General's Office, said a 1973 federal ruling that legalized abortion also found that states have a legitimate, important interest in ensuring health and medical standards that were the essence of a 2013 state rule that curtailed abortion services provided via two-way online hookups between doctors and patients in two different remote locations.

Thompson said the Iowa Board of Medicine sought to clear up uncertainty when it established standards of practice for physicians who prescribe and administer abortion-inducing drugs. Board members cited concerns over the medical care being provided to rural women in seeking to require in-person meetings between doctors and patients along with direct aftercare services.

'It's necessary,” Thompson told the justices. 'It's within the authority of the Board of Medicine to do this and it is absolutely constitutional under the Iowa Constitution.”

However, under questioning from Chief Justice Mark Cady, Thompson conceded nothing had changed between the time the board allowed the telemedicine abortions and the policy change after Gov. Terry Branstad appointed new members to the panel after winning election in 2010. He also told Justice David Wiggins he was not aware of similar rules that set forth standards of care for other medical procedures.

Clapman said the board's contention that the rule was medically necessary ran counter to opposition from within the medical profession, and put at risk a fundamental right as well as reproductive freedom for Iowa women who faced delays, travel and costs due to the action of state regulators.

'Telemedicine advances are medical advances for patients and there is no reason why women and pregnant women should be singled out and denied medical advances regardless of how risk adverse the board is,” Clapman argued. 'And these are advances that have been demonstrated to improve patient safety.”

At one point, Justice Thomas Waterman asked Clapman 'shouldn't our court defer to the medical judgment of the Iowa Board of Medicine? We went to law school, not medical school.” Clapman said the court's role is to act as an 'effective check” in assessing executive-branch actions.

After Wednesday's hearing, Chuck Hurley, an attorney and vice president of the Pleasant Hill-based Family Leader, said he agreed that the justices should defer to the doctors but added 'It's anybody's guess how they're going to rule. It's a tough case.”

Suzanna DeBaca, chief operating officer for Planned Parenthood of the Heartland, said she came away from hearing Wednesday's oral arguments 'cautiously optimistic” about the appeal. 'We absolutely believe that the (District Court) decision was unconstitutional.”

Outside the Judicial Building, Dan and Donna Holman of Keokuk parked their van with pro-life images in the nearby parking lot and waived placards at passing motorists. Mrs. Holman said the couple arrived outside the court building at 7 a.m. to 'speak for the babies. We're missionaries to the pre-born,” she said.