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Iowa court approves controversial medical board rule against remote drug dispensing for abortions

A regulation created by the Iowa medical board that prohibits doctors from remotely dispensing pills to patients seeking an abortion is a reasonable application of the board's power to protect the public by regulating physicians, the Iowa District Court for Polk County held August 18 (Planned Parenthood of the Heartland v. Iowa Board of Medicine).

The court found that the new rules, intended to curtail a practice of some abortion clinics whereby a doctor remotely unlocks a drawer containing the medication after clinic staff perform an examination of the patient, were a reasonable application of the board’s power to protect the public.

Protocol of the U.S. Food and Drug Administration (FDA) calls for patients taking mifepristone, the drug used to induce abortions, to make an office visit to receive the medication,in order to check for possible complications as well as the age and location of the fetus. At least one follow-up appointment is also required to ensure the drug has worked to fully terminate the pregnancy.

Planned Parenthood has used a teleconference with the physician to authorize the prescription following the physical exam by nursing staff.

In 2013, a group of individuals filed a petition to have the board create rules that would prohibit teleconference diagnoses for the dispensing of mifepristone, and to require parental notification when a minor patient sought the drugs.

A study conducted by an outside physician found no increase in patient complications caused by the use of the teleconferencing diagnosis system and, in 2010, the board investigated, and dismissed, a complaint about the practice, filed against doctors at PPH.

But after a public meeting, the board agreed to the language contained in the petition. Following a contentious rulemaking process, the board adopted the rule in August 2013.

During rulemaking, members of the board, its legal representatives, and both the Iowa Medical Society (IMS) and Iowa Osteopathic Medical Association (IOMA) objected that the process was being pursued too quickly, with insufficient time to address concerns with the proposed rule.

However, an attorney representing Governor Terry Branstad was present at the meeting, and advised the board, against the advice of the board’s counsel, that it could proceed.

In September, PPH filed a challenge to the rule, and the case was taken up by the district court. PPH accused the board of acting politically and ignoring relevant concerns about the rule during the unusually short rulemaking procedure.

Judge Jeffrey Farrell, who heard the case, agreed that the presence of the governor’s attorney “attracts accusations that the process is more political than policy oriented” and noted that “the board did little to temper such accusations by refusing to follow requests by professional trade groups such as IMS and IOMA to take additional time before adoption to receive more input and engage in more discussion with stakeholders.”

“However,” he wrote, “the board did consider these concerns and responded to them during its decision adopting the rule.” Judge Farrell noted that, despite the truncated decision time, the board had complied with the statutes that govern the rulemaking process, evidence that “demonstrates that the process was reasonable from a notice and opportunity-to-be-heard standpoint, absent some showing to the contrary.”

As evidence for its argument, PPH pointed to the complaint that the board had dismissed against PPH doctors in 2010. PPH contended that the board had previously determined the teleconferencing process to be safe.

However, noted Farrell, “the board may have had any number of reasons for not proceeding with a disciplinary process in 2010, but even if it dismissed the complaints because it considered PPH’s process to be safe, that decision cannot be considered policy.” And, even if the board had made policy in 2010, nothing prohibited it from reconsidering that decision now.

Judge Farrell concluded that the board had adequately considered both the evidence and potential implications of the proposed rule. He held that the board’s conclusion that in-person exams were necessary to protect the public, while contentious, was reasonable; the court owed deference to the board’s judgment.

Farrell also rejected claims of bias on the part of the board members, noting that board members are not neutral decision-makers when promulgating rules and that the standard for disqualifying a board member during the process was difficult to meet.

PPH also argued that the rule, which was likely to cause the closure of several clinics that could not procure an on-site doctor, would place unconstitutional burdens on women’s right to obtain an abortion. However, Judge Farrell, citing recent U.S. Supreme Court rulings, ruled that the additional travel time and costs that were expected for patients seeking an abortion under the new rules did not constitute undue hardships.

Last, Farrell also rejected PPH’s claim that the right to an abortion should be interpreted more broadly under the Iowa Constitution than U.S. Supreme Court cases have interpreted the right under the U.S. Constitution.