UPDATES & ANALYSIS

Telemed abortion case could have broad implications

by Ryan Koopmans | March 10, 2015

By Ryan Koopmans

Tomorrow, the Iowa Supreme Court will hear argument in one of the most closely watched cases of the term: Planned Parenthood of the Heartland v. Iowa Board of Medicine.  The case involves the Board of Medicine’s 2013 rule that bans so-called “telemed abortions,” a process in which a doctor talks with a patient by video conference and then dispenses an abortion-inducing medication through a remote-controlled drawer.  Planned Parenthood claims that the Board’s rule doesn’t comply with Iowa’s Administrative Procedures Act (a statute that governs the process under which an agency can enact regulations) or the Iowa Constitution. Both legal issues–administrative and constitutional–could have effects beyond this case.

Yesterday, Tony Leys of the Des Moines Register reported on the constitutional issue.  Planned Parenthood claims that a ban on telemed abortion violates the right to due process and equal protection.  That’s a common argument in cases involving abortion restrictions, but this argument differs from the norm in that Planned Parenthood is making its claim under the Iowa Constitution as opposed to the U.S. Constitution.  The U.S. Supreme Court ruled in Roe v. Wade  that the U.S. Constitution places certain restrictions on the government’s ability to restrict abortion procedures, but the Court later clarified in Planned Parenthood v. Casey that such restrictions are okay as long as they don’t place an “undue burden” on a woman’s ability to get an abortion. Planned Parenthood is making its claim under the Iowa Constitution in hopes that the justices will adopt a more stringent standard known as “strict scrutiny.”  That strategy–of asking the Iowa Supreme Court to interpret rights under the Iowa Constitution more broadly than the U.S. Supreme Court interprets similar rights under the U.S. Constitution–has succeeded several times in the last four years, most notably in the areas of search and seizure and the cruel-and-unusual-punishment clause.  This column by the Gazette’s Todd Dorman provides a good summary of the ongoing debate.

Planned Parenthood’s administrative-law arguments aren’t as attention-grabbing (even most lawyers find administrative law to be a bore), but they could have significant repercussions because of the increasing role that agencies play in our government.  Planned Parenthood is asking the Supreme Court to overturn the Board of Medicine’s telemed-abortion rule because, according to Planned Parenthood, the Board’s decision to adopt the rule was “rushed and inadequate,” the Board overlooked evidence that suggests requiring in-person visits could create greater health concerns, and the Board was motivated by an improper purpose (disagreement with abortion rather than concern over medical safety).  These types of arguments aren’t usually successful because courts are hesitant to second guess administrative agencies when they’re exercising rule-making power.  When it comes to the question of “what’s good policy?,” for instance, courts (including the Iowa Supreme Court) generally defer to the agency, so long as there is some factual support for the agency’s decision; it doesn’t matter that the justices would have come to a different decision if they were the head of the agency.   And when it comes to a claim that an agency’s purported reasons aren’t the real reasons, courts generally won’t infer wrongful motives and they won’t attempt to get inside the decision-makers’ minds.

The Iowa Supreme Court touched on some of these general administrative-law principles last year in Iowa Farm Bureau Federation v. Environmental Protection Commission.  The specific issue in that case–whether one of the Commission members should have abstained from voting on a water-quality rule–is different from the issues in this case.  But the Court’s broader statements on the deference that the Judicial Branch should give to agencies could be telling of the outcome here.  “The subjects of regulation are justifiably numerous and complex,” Chief Justice Cady wrote, “and the importance of an administrator’s legal, technical, and scientific expertise cannot be understated.”

For the (relatively) few lawyers who pay attention to administrative-law matters, that will be the big issue come Wednesday morning: How much deference do agencies get in setting public policy, and how much is the Court willing to second guess those policy decisions?  That issue goes well beyond abortion and the Board of Medicine.

The Court’s argument session begins at 9:00 a.m., and this case is second on the schedule (which means a start time of about 9:35).  As always, you can watch the argument live on the Court’s website.  And if you’re really paying attention, the briefs are linked below.  (Note the high number of amicus (“friend-of-the-court”) briefs.)

Planned Parenthood’s opening brief

Board of Medicine’s brief

Planned Parenthood’s reply brief

Brief of amicus curiae American College of Obstetricians and Gynecologists

Brief of amici curiae Iowa Coalition Against Sexual Assault, Iowa Coalition Against Domestic Violence, and National Women’s Law Center

Brief of amicus curiae American Civil Liberties Union of Iowa

Brief of amici curiae Physicians for Life, National Association of Pro Life Nurses, Christian Medical Association, National Association of Catholic Nurses, and The National Catholic Bioethics Center

Brief of amici curiae American Association of Pro-Life Obstetricians & Gynecologists, Donna Harrison, M.D., Iowa Right to Life, and Susan Thayer

Brief of amici curiae Catholic Medical Association, Catholic Medical Association—Des Moines Guild, Catholic Medical Association—St. Thomas Aquinas Guild of the Quad Cities, Iowans for Life, and Women’s Choice Center of the Quad Cities