Planned Parenthood of the Heartland, et al. v. Iowa Board of Medicine

This case challenged rules adopted by the Iowa Board of Medicine (“Board”) regarding medicated abortions provided via telemedicine. Starting in 2008, doctors in Iowa at Planned Parenthood began performing abortions via telemedicine. The abortions were performed using mifepristone, a drug that that can be taken orally that terminates a pregnancy, and misoprostol, another oral drug that induces contractions. The U. S. Food & Drug Administration (FDA) first approved mifepristone for use in abortion in 2000, and the appropriate treatment regimen was to administer 600 mg of mifepristone orally, and then administer .4 mg of misoprostol orally.

Once the FDA approved a drug, physicians could use the drug in a different manner than the regimen on the label, called off-label use. After additional studies, The American College of Obstetricians and Gynecologists (“ACOG”) approved an off-label use that had the patient take 200 mg of mifepristone followed by .8 mg of misoprostol 1 to 4 days later. The new off-label use allowed the procedure to be performed within the first 9 weeks of pregnancy instead of the first 7 weeks recommended on the original label.

At Planned Parenthood clinics, a trained staff member took the patient’s medical history, checked the patient’s vitals, took blood from the patient and tested it for any contraindications for abortions. The staff member also performed an ultrasound to check for ectopic pregnancy and to determine gestational age. From a different location, a doctor then reviewed the patient’s medical history, lab results and ultrasound images, and spoke to the patient via a secure electrical audio-visual connection. The doctor informed the patient about the medication regime, potential complications, answered patient’s questions, and received the patient’s informed consent. Next, the doctor remotely released a secure drawer containing the mifepristone, and the trained staff member would watch the patient take the medicine orally. The doctor instructed the patient to take the misoprostol 24-48 hours later, and the clinic scheduled a follow-up visit for the patient within two weeks. The patient was given a toll-free number to call with any questions, and the uterine evacuation occurred while the woman was at home. The procedure was the same as if the doctor was physically in the room with the patient, with no physical examination performed before the abortion, which is not medically necessary according to ACOG.

The Board enacted Rule 653-13.10, which required that physicians providing abortion-inducing drugs must do a physical examination of a patient, be present with the patient when providing the drugs to the patient, and schedule a follow-up appointment with the patient at the same facility. These rules effectively prohibited the use of telemedicine for prescribing abortion-inducing drugs.

Planned Parenthood challenged Rule 653-13.10 as unconstitutional. The district court upheld the rule as constitutional. Planned Parenthood appealed the ruling to the Iowa Supreme Court.

The Court held that Rule 653-13.10 was unconstitutional. The Court held that the rule failed to meet the federal undue burden test set forth by the U.S. Supreme Court in Planned Parenthood v. Casey. The undue burden test balanced a woman’s right to terminate her pregnancy against the legitimate interests of the state, including the state’s interest in advancing fetal life and promoting the health or interest of the patient seeking to terminate her pregnancy. The Board’s purported interest in enacting Rule 653-13.10  was to protect the health of the woman. Under the undue burden test, if the state’s interest is to further the health of the woman, then the regulation is unconstitutional if it presents a substantial obstacle in the way of a woman seeking abortion.

The Court found the rule did not meet the undue burden test becase the evidence did not indicate that a pelvic examination provided any measurable gain of a patient’s safety and that the physical presence of a physician did not decrease risk of complications from medication abortions. On the other hand, if the rule were enacted, the burden on women would be great and many women would have to travel hundreds of miles to obtain an abortion. The Court distinguished this case from Casey because the Board’s medical justification for the rule (women’s health and safety) was minimal. The Court also noted that the Board applied different medical standards to abortion than to other medical procedure since it also had a rule that generally approved the use of telemedicine but excluded abortion.

“While undoubtedly at an abstract level everyone would prefer to see a doctor in person every time they have a medical issue, the reality of modern medicine is otherwise. In this case, the record indicates the physician plays an important role in reviewing the ultrasound images and dispending the prescribed medications, but those roles can be performed without the physician being personally present. The record also provides almost no medical support for the necessity of a pelvic exam prior to dispensing the medication. At the same time, the record indicates that the telemedicine rule would make it more challenging for many women who wish to exercise their constitutional right to terminate a pregnancy in Iowa to do so.” Page 29.

“Most significantly, as noted above, the Board has adopted a rule that generally approves of the use of telemedicine, recognizing the existence of ‘technological advances [that] have made it possible for licensees in one location to provide medical care to patients in another location with or without an intervening health care provider.’ Iowa Admin. Code r. 653—13.11. The rule authorizes the use of telemedicine in accordance with “evidence-based” guidelines and standards. Id. r. 653—11(2). As the Seventh Circuit observed in the somewhat different circumstances presented in Van Hollen, ‘An issue of equal protection of the laws is lurking in this case.’ 738 F.3d at 790. The Board appears to hold abortion to a different medical standard than other procedures.” Pages 30-31.