Proposed rules lack specific penalties doctors could incur for performing an abortion in Iowa

Proposed rules meant to provide guidance to Iowan physicians lack specific penalties they could face for performing abortions under a new law that remains tied up in court.

The Iowa Board of Medicine is set to meet Friday to consider proposed rules that include specific guidance on how medical providers are to implement the exceptions for rape, incest, fatal fetal abnormalities and medical emergencies contained in a new law that would prohibit the vast majority of abortions in the state.

The proposed rules, however, leave unanswered key questions as to whether doctors could face fines or licensing repercussions for performing abortions illegally. They simply state: “Failure to comply with this rule or the requirements of Iowa Code section 146E may constitute grounds for discipline.”

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.

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.

Abortion still legal in Iowa

A Polk County District Court judge in July granted a request from Iowa abortion providers to halt enforcement of the new restrictions until its constitutionality can be considered by the courts. Planned Parenthood North Central States, the Emma Goldman Clinic and the American Civil Liberties Union of Iowa requested the injunction.

The judge’s ruling, however, left in place a provision directing the Iowa Board of Medicine to adopt rules to administer the bill.

In the wake of Iowa and U.S. Supreme Court rulings reversing a fundamental right to abortion, Republican leaders in the state, including Iowa Attorney General Brenna Bird, argued the district court decision to grant the injunction was in "error" and have asked the Iowa Supreme Court to lift it.

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The Iowa Supreme Court agreed to hear the appeal back in July. Oral arguments in the case have not yet been scheduled.

"The injunction placed on Iowa’s Fetal Heartbeat Law has already led to the innocent deaths of children,“ Gov. Kim Reynolds said in a statement last week in response to a brief filed by Bird in the state’s appeal with the Iowa Supreme Court.

As the case continues, abortion in Iowa remains legal up to 20 weeks of pregnancy.

What the law does

The law, House File 732, would change the amount of time women have to seek an abortion from 20 weeks post-fertilization to as little as six weeks — before many women know they’re pregnant. The legislation prohibits abortions after cardiac activity is detected in an embryo.

The law requires doctors to perform an abdominal ultrasound on a patient seeking an abortion. If cardiac activity is detected, defined as “the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac” — is detected, 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.

An attorney for Planned Parenthood Federation of America argued in court that the law “unquestionably imposes an undue burden” on Iowans’ access to abortion care and violates their constitutional rights to due process, dominion over one’s body, the ability to “have control over their lives and their futures” and to make their own decisions about their health care. Planned Parenthood has said the ban would prohibit an estimated 98 percent of all abortions in Iowa.

While the ban contains some exceptions for abortions, some Iowa physicians have warned the restrictions do not account for complications that occur during pregnancy, and would hinder their ability to provide care and respond to time-sensitive issues.

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What the proposed rules say

Under the proposed rules, to determine whether patients qualify for the ban's exceptions for rape and incest, Iowa physicians would be required to gather details from women 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.

Doctors would be required to document the information in the patient’s medical records and make a “good-faith assessment that the woman is being truthful,” and may require them attest the information “was true and accurate to the best of her understanding.”

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.

Doctor, opponents say exceptions too vague

Iowa Rep. Amy Nielsen, D-North Liberty, said exceptions for rape and incest may work in theory, but not in reality.

Nielsen said the rules make it unclear how a provider is supposed to validate a patient's accusation of rape or incest, and may feel scared to act due to fear they will be prosecuted if they act outside the law.

Additionally, women may be too scared to come forward when they've been raped. About two-thirds of victims do not report to law enforcement. Many know their abuser and worry about the consequences, according to national statistics compiled by the Rape, Abuse & Incest National Network.

Nielsen said the rules call for doctors to ask “specific and invasive questions” that could exposes women to additional trauma by having to relive the crime. And she argued the rules and exceptions are “worded vaguely enough that doctor’s are going to be wary.”

Dr. Emily Boevers, an obstetrician-gynecologist in Waverly, agreed, adding the Board of Medicine was put in a difficult spot of drafting rules for what she said is a deeply concerning law that mandates medically trained professionals to try to interpret legal concepts of what constitutes rape to provide standard medical care.

And in doing so, the law requires physicians to have patients “recall horrific details” to “document the legal details of an assault to satisfy the curiosity of the government.”

“That’s not what the medical record is intended to for and that’s not what physicians are trained for and that’s not their role in our society,” Boevers said.

She said doctors, fearing legal repercussions, risk grave patient harm to comply, including letting patients’ conditions deteriorate until they threaten the patient’s life.

“What physician is going to want to come and practice in this environment? Where you stake your license on what constitutes rape appropriately and get called before the Board of Medicine to determine what your discipline is,” Boevers said. “And we don’t know what those actions might cost us. … It’s incredible.”

And at a time, she said, when Iowa has the lowest number of OB-GYN specialists per capita of any state in the country, and infant mortality in the state has soared more than another other.

Rep. Shannon Lundgren, R-Peosta, who led floor debate on the bill in the House, did not respond to a message seeking comment Tuesday. A spokesperson for Iowa House Republicans also did not return a message Tuesday.

Who’s making the decision

The Iowa Board of Medicine licenses and regulates physicians, acupuncturists, and other health care providers. The board is composed of 10 members: five practicing doctors of medicine, two practicing doctors of osteopathic medicine, and three members of the public. State law requires no more than five members may be affiliated with the same political party. Members are appointed by the governor and confirmed by the Iowa Senate.

If approved by the board, the rules then go before the Legislature’s Administrative Rules Review Committee, which votes to approve or reject them. The 10-member committee of House and Senate lawmakers is comprised of six Republicans and four Democrats.

Once the committee approves the initial proposal, the board may make changes to the wording based on feedback, and can then adopt the rules.

Should the Board of Medicine vote to move head with the proposed rules, that would open a public comment period through Jan. 2. The draft rules, along with all comments received, would return to the board for review and consideration of a vote to adopt the rules at its Jan. 26 board meeting. The rules go into effect 35 days after the final review.

Caleb McCullough of The Gazette-Lee Des Moines Bureau contributed to this report.

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