Iowa to adopt rules while court weighs challenge to blocked abortion ban

DES MOINES — Rules meant to carry out a blocked Iowa law banning abortions early in pregnancy will move forward, while later this week the Iowa Supreme Court will consider a legal challenge to the constitutionality of the state ban.

The state administrative rules committee met Monday to review rules adopted by the state medicine board that would apply to a new state law on abortion.

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Lawmakers raised concerns, but did not object to the adopted rules, which will take effect April 24. However, with the law temporarily blocked, the rules will not be enforceable unless the court allows the law to go forward.

The Iowa Supreme Court is set to hear oral arguments Thursday afternoon in Republican Gov. Kim Reynolds’ appeal of the lower court’s decision that paused the crux of the restrictive abortion law from taking effect.

Lawmakers last year passed and Reynolds signed into law House File 732 during a rare special session of the Legislature. It would change the amount of time a pregnant person has to seek an abortion from 20 weeks post-fertilization to as little as six weeks — before many people know they’re pregnant.

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What does the law do?

The law bans abortion once cardiac activity is detected in an embryo or fetus, which can be as early as six weeks. It includes exceptions for rape, incest and medical emergencies.

A Polk County District Court judge temporarily blocked the law shortly after its passage last summer, but allowed the rule making process to move forward.

Physicians have raised concerns about the requirements placed on them, the use of non-medical terminology included in the law and the impact on recruitment of OB-GYNs in the state.

While the ban contains some exceptions for abortions, some Iowa physicians have warned the restrictions would hinder their ability to provide appropriate, timely care.

What do the rules say?

Many requested that the Board of Medicine use language that parallels that used by physicians in their practice. While the board revised the rules to include terminology that doctors use, many of the terms included in the law are defined by state statute and cannot be altered.

The law is crafted around the detection of a “fetal heartbeat,” which is not easily translated to medical science. While advanced technology can detect a flutter of cardiac activity as early as six weeks gestation, medical experts say the embryo at that point isn’t yet a fetus and doesn’t have a heart.

The rules instruct physicians to make “a bona fide effort to detect a fetal heartbeat” by performing a transabdominal pelvic ultrasound.

If cardiac activity is detected, defined in the law as “the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac,” the abortion cannot be performed unless one of the exceptions has been met.

The bill includes exceptions for pregnancies that are the result of rape in cases reported within 45 days, and incest in cases reported within 140 days. It also includes exceptions for miscarriages, a fetal abnormality that would result in the infant’s death and for when the mother’s life is threatened.

To determine whether patients qualify for the ban's exceptions for rape and incest, Iowa physicians would be required to gather details from the pregnant person to determine when and whether a sex act occurred, including if and when the act was first reported to law enforcement, a public or private health agency or a family physician.

When can doctors intervene to save a pregnant person’s life?

As for determining whether a fetus has an abnormality “that in the physician's reasonable medical judgment is incompatible with life,” doctors would be required to document diagnostic tests and procedures performed and their results, along with a description as to why they support the diagnosis.

The law also provides for an exception for “medical emergency,” which includes pregnancy complications endangering the life of the pregnant person and cases in which “continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”

The board, though, did not provide specific guidance for how badly a pregnant person’s health would have to decline before doctors can intervene.

Republican lawmakers and supporters of the law say the exceptions allow medical providers to exercise judgment and provide abortions when they believe one applies. Opponents contend the uncertainty and worry among physicians of potentially losing their medical license could prompt providers to put off abortions if they're uncertain.

What penalties do doctors face?

The adopted rules do not outline how the board would determine non-compliance or specific penalties physicians would face for violating the law. Rather, it would be up to the discretion of the board.

Existing administrative rules lay out the extent of the punishment the Board of Medicine can impose on physicians and licensees who violate board rules and state laws. The board may revoke, suspend or restrict someone’s license, or place them on a probation period or require additional education or training. The board also may impose a fine up to $10,000 and issue a citation and warning.

Democrat: Law could threaten IVF in Iowa

Sen. Cindy Winckler, a Democrat from Davenport who serves on the state Legislature's Administrative Rules Review Committee, raised concerns with the definition of “unborn child” included in the rules.

The law uses the term “unborn child” to refer to an embryo or fetus from the time of fertilization to birth.

Winckler worried the definition would imperil access to in vitro fertilization in the wake of the Alabama Supreme Court ruling that frozen embryos are children under state law and that those who destroy them can be held liable for wrongful death.

“I know what the intent is (of the law), but because so much of this bill did not really include medical terminology when it was passed, I think that it is unfortunate that we have these rules in place and will be in effect before the court case is determined,” she said.

Mazie Stilwell, public affairs director of Planned Parenthood Advocates of Iowa, said the proposed rules will lead to “chaos” and confusion within the medical field, and interfere with Iowans' access to safe and legal abortion.

“The way that the bill was written is not in line with medical practice. And so that puts the Board of Medicine in, you know, in a position to try to interpret non-medical standards in the practice of medicine,” Stilwell said.

AG Bird: Iowa has an interest in protecting unborn human life

Iowa Attorney General Brenna Bird, a Republican, argues in court filings that the state of Iowa has a vital interest in protecting unborn human life at all stages of development.

The brief argues that abortion providers and clinics lack standing to sue on behalf of pregnant women, given that there is no constitutional right to provide abortions with the recent reversal of Iowa and U.S. supreme court cases.

"No right is more valuable than the right to life," Bird said in a statement last year defending the law. "Each day, innocent, unborn lives are lost to abortion. We know that every moment counts when it comes to protecting the unborn and are working diligently to ensure the Heartbeat Law is upheld. I’m confident that the law is on our side, and we will continue fighting to defend the right to life in court."

Comments: (319) 398-8499; tom.barton@thegazette.com