Ruling On Telemed Abortion Judicial Review

IN THE IOWA DISTRICT COURT FOR POLK COUNTY
PLANNED PARENTHOOD OF THE

HEARTLAND, INC. and DR. JILL
MEADOWS, M.D.,

Petitioner,

!.

IOWA "OARD OF MEDICINE,

Re#ondent.

Cae No. C$C$ %&'&()

RULIN* ON JUDICIAL RE$IEW

Petitioners Planned Parenthood of the Heartland, Inc. and Dr. Jill Meadows (jointly
referred to as PPH) filed a petition for judicial review against respondent Iowa oard of
Medicine (the !oard). "he parties filed !riefs as per the scheduling order entered !y the court.
"he #atter ca#e on for hearing on June $%, &'$(. )ttorneys )lice *lap#an and +haron
Malheiro represented PPH. )ssistant )ttorney ,eneral Julie ussan#as represented the !oard.
"he record included the agency-s certified record pages $.//$, petitioner-s a#ended
appendi0 pages //&.%$%, and the e0hi!its and affidavits su!#itted to the court during the
application for stay hearing on 1cto!er 2', &'$2. "he certified record included a disc with audio
of a pu!lic hearing held !y the !oard on )ugust &3, &'$2 (referred to as *D).
$

STATEMENT OF THE CASE
Introd+,tion and -a,./ro+nd4 1n January &&, $562, the 7nited +tates +upre#e *ourt
entered its land#ar8 decision in Roe v. Wade, ($' 7.+. $$2 ($562) in which it found a wo#an
has a constitutional right to ter#inate her pregnancy, with so#e li#itations. "hose li#itations

$
"his ruling refers to ver!al state#ents #ade to the !oard during the pu!lic hearing as 9testi#ony.: "o
!e clear, the state#ents were not under oath; they were #ade as part of each individual-s re<uest to
provide input to the !oard.
E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT
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have !een the su!ject of addition litigation, !ut the 9essential holding: of Roe allowing a wo#an
to choose to have an a!ortion !efore via!ility and without 9undue interference fro# the +tate:
has !een reaffir#ed !y the 7nited +tates +upre#e *ourt. See Planned Parenthood of
Southeastern Penn. v. Casey, /'/ 7.+. 322, 3(/ ($55&) (applying the undue influence standard).
In the years following Roe, a!ortion has !een legally perfor#ed in the +tate of Iowa. )s
an e0a#ple, in &''3, %,/%' wo#en o!tained a!ortions in Iowa. )s of &''3, there were eleven
a!ortion providers in Iowa, with a!ortion services !eing provided in nine of Iowa-s ninety.nine
counties. "he availa!ility of a!ortion providers in Iowa is co#para!le to other states =
nationally, a!ortion providers are present in appro0i#ately thirteen percent of counties. ()pp.
//(.//).
Historically, a!ortion was perfor#ed as a surgical procedure. In &''', the 7nited +tates
>ood and Drug )d#inistration (>D)) approved the use of a drug 8nown !y its test na#e ?7.
(3%, now 8nown as #ifepristone, for the purpose of inducing a!ortions. "he process of ta8ing
#ifepristone to induce a!ortion is referred to throughout the record as #edical a!ortion, as
distinguished fro# a surgical a!ortion. ()pp. $(/, &&3.&5, &2%).
"he >D)-s approval of #ifepristone re<uires three office visits with the patient. 1n the
first visit, the physician or person supervised !y the physician ad#inisters %'' #g of
#ifepristone. "he patient is instructed to return two days later to deter#ine whether the a!ortion
has occurred. If not, the physician or person supervised !y the physician would ta8e ('' ug of
#isoprostol. ecause there #ay !e side effects, the patient should !e #onitored and given a
phone nu#!er of the physician who would handle any e#ergencies following the office visit.
"he third visit is a follow.up appro0i#ately fourteen days following the first visit. "he >D)
2

considered the follow.up visit to !e 9very i#portant to confir# !y clinical e0a#ination or
ultrasonographic scan that a co#plete ter#ination of pregnancy has occurred.: ()pp. $(%.(6,
&&3.&5, &26).
)t the ti#e the >D) approved #ifepristone, it found the drug to !e safe if used within
forty.nine days of gestation or less. +tudies conducted since that ti#e have found the drug to !e
safe up to si0ty.three days of gestation when used as part of a protocol co#!ined with the
re<uired use of #isoprostol. @ith that protocol, the patient is given &'' #g of #ifepristone to
ta8e at the clinic, and 3'' ug of #isoprostol to ta8e vaginally at ho#e appro0i#ately forty.eight
hours later. "he studies indicate that gestational age should !e confir#ed !y clinical evaluation
or ultrasonography, as the drug is safer and #ore effective earlier in gestation. "he >D) has not
approved the alternative protocol used for pregnancies !etween fifty and si0ty.three days of
gestation. ()pp. $(3.(5, &&3.&5, &2%.(().
"here are several contraindications for a!ortions with #ifepristone regi#ens, including
confir#ed or suspected ectopic pregnancy or undiagnosed adne0al #ass, intrauterine device in
place, current long.ter# syste#ic corticosteroid therapy, chronic adrenal failure, severe ane#ia,
8nown coagulopathy or anticoagulant therapy, and #ifepristone intolerance or allergy.
)dditionally, #ost of the clinical trial e0cluded wo#en with severe liver, renal, or respiratory
disease, uncontrolled hypertension, cardiovascular disease, or severe ane#ia. "he drug should
not !e used in wo#en with an uncontrolled seiAure disorder. +tudies also caution against
#edical a!ortion for wo#en with 9social or psychological contraindications,: such as wo#en
who do not want to ta8e responsi!ility for their care, are an0ious to have the a!ortion over
<uic8ly, cannot return for follow.up visits, or cannot understand the instruction due to language
or co#prehension !arriers. ()pp. &($).
(

PPH te0e1edi,ine 1edi,a0 a-ortion #roto,o04 PPH is an a!ortion provider operating in
the +tate of Iowa. PPH perfor#s surgical and #edical a!ortions. In late &''3, PPH !egan
offering #edical a!ortions through use of 9tele#edicine.: In this protocol, PPH-s physician does
not personally #eet the patient, !ut rather, tal8s to the patient !y a real.ti#e two.way video
conferencing syste#. +taff #e#!ers, which #ay include nurses or certified #edical assistants
(*M)), conduct the physical e0a#, ta8e !lood for la! wor8, and conduct an ultrasound.
Infor#ation is relayed to the physician, who, !y co#puter, releases a drawer in front of the
patient that contains the a!ortion #edications. "he patient can then access the #edication. "he
drawer is pac8ed and loc8ed !y a phar#acist or a PPH staff person. (Meadows affidavit; *D =
?oss, uchac8er, ,ross#an testi#ony).
PPH-s protocol re<uires the use of #ifepristone and #isoprostol ta8en in co#!ination.
"he patient ta8es the #ifepristone at the clinic in front of the doctor (!y video) and a PPH staff
person in the roo#. "he patient is instructed to ta8e the #isoprostol at ho#e twenty.four to
forty.eight hours later. ) follow.up visit is scheduled for appro0i#ately two wee8s later. "he
patient is given infor#ation how to contact PPH #edical staff with <uestions or concerns. ()pp.
(2(.2/).
@hile the record is not co#pletely clear on this point, it appears that PPH-s use in Iowa
of doctor participation in #edical a!ortions !y video.conferencing was the first in the nation, and
there is no evidence that the sa#e protocol is used in the sa#e way in other states. Dr. "ho#as
?oss fro# PPH appeared !efore the !oard at a pu!lic hearing stating that Iowa #ay have !een
the first state that tele#edicine a!ortion was used. He was not sure whether it had !een used in
other states, !ut agreed that Iowa was the first state which it was widely used. "here is no
evidence in the record to show that a!ortions were perfor#ed !y tele#edicine in any other state
/

prior to PPH !eginning the procedure in Iowa in &''3. "he record does not show that
tele#edicine a!ortions are perfor#ed in other states since then. "he record indicates that si0teen
other states have ta8en action to re<uire prescri!ing physicians to !e in the physical presence of
wo#en when perfor#ing #edical a!ortions. (*D = ?oss testi#ony; )pp. $%$.%&).
Dr. Daniel ,ross#an, a vice president of research for I!is ?eproductive Health,
conducted a study of PPH-s protocol fro# &''3 through &'$'. Dr. ,ross#an-s study was !ased
on a review of records and was not clinical in nature. Dr. ,ross#an found no difference in the
co#plication rates !etween patients of #edical a!ortion who saw a doctor in person versus those
who saw a doctor !y video conferencing. (*D = ,ross#an testi#ony; )pp. (33.5').
T2e -oard3 (%4% in!eti/ation4 "he !oard was created to license and regulate
physicians practicing in the state of Iowa. See generally Iowa *ode chapters $(6, $(3, &6&*.
"he !oard consists of ten #e#!ers4 five #e#!ers licensed to practice #edicine and surgery,
two to practice osteopathic #edicine and surgery, and three pu!lic #e#!ers. Iowa *ode section
$(6.$(($). "he !oard has the authority to adopt all rules necessary and proper to ad#inister and
interpret its governing statutes. Iowa *ode section $(6.6%. "he !oard #ay have alternate
#e#!ers to hear contested case hearings, !ut alternate #e#!ers are not authoriAed to perfor#
the !oard-s rule.#a8ing function. Iowa *ode section $(3.&).
In &'$', the !oard received a co#plaint against Dr. ?oss and another doctor who
perfor#ed #edical a!ortions through tele#edicine. "he !oard investigated the co#plaint !y
o!taining docu#ents fro# PPH and personally interviewed Dr. ?oss and the other physician.
"he !oard dis#issed the co#plaint and too8 no disciplinary action against Dr. ?oss or the other
doctor. Dr. ?oss has not changed his practice as to #edical a!ortions following the !oard-s
%

investigation. "he !oard did not adopt any rules regarding #edical a!ortion at that ti#e. (?oss
affidavit).
Petition 5or r+0e1a.in/4 1n or a!out June &/, &'$2, the !oard received a 9petition for
rule#a8ing regarding the standards of practice for perfor#ing a che#ical a!ortion.:
&
"he
petition was su!#itted !y fourteen individuals, including five physicians. "he rule sought a
standard of practice for #edical a!ortions that would re<uire the following4 $) a physician
perfor# an in.person physical e0a# of the patient to deter#ine gestational age and intrauterine
location in the pregnancy !efore inducing an a!ortion through an a!ortion.inducing drug, &)
physical presence of a physician at the ti#e an a!ortion.inducing drug is provided, 2) the
physician inducing the a!ortion schedule a follow.up visit with the patient at the sa#e facility
twelve to eighteen days after the use of the drug, and () parental notification if the patient is a
#inor. ()pp. (6./(, /&/).
1n June &3, &'$2, the !oard held a pu!lic #eeting regarding the petition for rule#a8ing.
)fter hearing fro# three #e#!ers of the pu!lic, a #otion was #ade and seconded to accept the
petition and co##ence the rule#a8ing process. )nn ,ales, a !oard #e#!er, stated that the
!oard was considering the rule too <uic8ly. "he !oard-s legal counsel fro# the )ttorney
,eneral-s 1ffice advised the !oard to delay accepting the petition, although she stated the !oard
could concurrently approve a separate notice of intended action with the sa#e language as the
petition. "he !oard-s director of legal affairs si#ilarly stated that the !oard was ta8ing action
without fully considering the issues in the petition. However, renna >indley, the ,overnor-s
legal counsel and state ad#inistrative rules coordinator, advised the !oard that it could vote to

&
"he reference to 9che#ical a!ortion: is the sa#e as 9#edical a!ortion: as used throughout this ruling.
6

accept or reject the petition i##ediately. "he chair called for a vote and the !oard approved the
#otion !y an eight.to.two vote. ()pp. /&(./&6).
>ollowing the vote, the !oard filed a notice of intended action to adopt the language fro#
the petition as a for#al rule. "he !oard pu!lished notice in the Iowa )d#inistrative ulletin.
"he notice stated that the !oard would hold a pu!lic hearing for )ugust &3, &'$2 to hear ver!al
co##ents on the rule. "he notice also infor#ed the pu!lic that it could su!#it written
co##ents !y (42' p.#. on the sa#e date. 1n July &5, &'$2, the !oard issued a press release
providing infor#ation a!out the pu!lic hearing. "he !oard pu!lished a copy of the proposed rule
on its we!site and allowed the pu!lic to review pu!lic co##ents. ()pp. (.3, (%, /$$).
"he !oard held its pu!lic hearing on )ugust &3, &'$2 fro# appro0i#ately $4'' p.#. to
(42' p.#. "he !oard received testi#ony fro# twenty.eight individuals and written co##ents
fro# &(( individuals and organiAations. 1n )ugust 2', &'$2, the !oard #et to consider adoption
of the rule. Bach of the !oard #e#!ers offered co##ents a!out the rule prior to the vote. "he
rule was adopted !y an eight.to.two vote. 1ne of the dissenting !oard #e#!ers, Ms. ,ales
stated her pri#ary concern that the !oard was 9hasty: in adopting the rule. +he preferred #ore
dialogue with sta8e.holders !efore approval. "he other dissenting voter, Dr. Michael "ho#pson,
li8ewise e0pressed concern with the speed in which the rule was adopted (although he also
shared health concerns with PPH-s tele#edicine practice, citing issues with the training of clinic
staff #e#!ers and access to e#ergency care in the event of co#plications). ()pp. $&, /$6.&').
1n +epte#!er &6, &'$2, the !oard issued a state#ent regarding the adoption of the rule.
"he !oard cited five principal reasons presented in support of the rule. In su##ary, they were4
$) to adopt a standard of practice to protect the health and safety of patients who are
prescri!ed a!ortion.inducing drugs;
3

&) to ensure that the practices used !y physicians who are prescri!ing a!ortion.inducing
drugs !y tele#edicine are inconsistent with protocols used !y the >D) and drug
#anufacturers;
2) to ensure that Iowa *ode section 6'6.6(2), which only allows physicians to perfor#
a!ortions, is !eing followed;
() to end physical e0a#s of patients see8ing a #edical a!ortion !y non.physicians who do
not have appropriate training for the purpose of confir#ing or discovering
contraindications, as well as perfor#ing ultrasounds to deter#ine the age and location of
the e#!ryo; and
/) to ensure that physicians who prescri!e and ad#inister a!ortion.inducing drugs !y
tele#edicine #eet the patient in person and see the patient for a follow.up appoint#ent.

"he !oard also cited eight principal reasons in opposition to the rule and the !oard-s reasons for
overruling the o!jections. In su##ary, they were (reasons in opposition italiciAed, !oard-s
response in regular type)4
$) The rule would limit rural womens access to medical abortion. "he rule does not restrict
where #edical a!ortions #ay !e provided and rural wo#en are entitled to the sa#e high
level of health care as ur!an wo#en.
&) The rule is politically motivated and not sound public policy. "he !oard recogniAes that
a!ortion is a politiciAed issue, !ut it is only authoriAed to adopted rules for the licensure
and practice of physician and its #otivation is to protect the health and safety of Iowans.
2) The rule is an attempt to ban access to a legal medical procedure. "he rule does not !an
#edical a!ortion, !ut only sets standards of practice for physicians who perfor# #edical
a!ortions.
() The board previously addressed this matter in 2! when it investigated PP" doctors.
"he #e#!ership of the !oard has changed and the !oard had never adopted a rule
addressing #edical a!ortions, so the current !oard felt it needed to #ove forward to
protect the health and safety of Iowans.
/) The board did not underta#e a thorough study of the matter$ nor did it consider the
impact the rule might have on telemedicine in general. "he !oard considered a
significant a#ount of data and pu!lic co##ents on the issue and adopted a narrowly
focused rule which would allow it to consider tele#edicine in a !roader sense at a future
date.
%) %n appropriate physical e&am is conducted by trained staff that is provided to the off'site
physician who reviews the information before prescribing abortion'inducing drugs. "he
5

!oard considers a thorough #edical history and physical e0a# to !e the cornerstone of
good #edical care. "he !oard descri!ed in so#e detail its concerns with the lac8 of a
physical e0a# and the training of staff who conduct ultrasounds to deter#ine gestational
age.
6) The treatment and consultation made by the physician in a telemedicine conte&t are the
same as those in a face'to'face setting. "he !oard !elieves that prescri!ing physicians
#ust !e physically present to esta!lish a proper physician.patient relationship to conduct
a safe #edical a!ortion.
3) Patients are already receiving appropriate follow'up care in remote clinics where a
physician is not physically present. "he !oard !elieves an in.person physical e0a# and
consultation will strengthen the physician.patient relationship and result in i#proved and
increased follow.up care.

Ditri,t ,o+rt #ro,eedin/4 1n +epte#!er 2', &'$2, PPH filed a petition for judicial
review and #otion for stay of agency action. PPH as8ed the !oard to stay i#ple#entation of the
rule pending judicial review. "he !oard refused to do so. 1n 1cto!er 2', &'$2, the district court
heard evidence and argu#ent on the #otion. 1n Cove#!er /, &'$2, the court issued its ruling.
"he court noted that its ruling is 9e0tre#ely narrow in scope,: and that the ruling 9does not, in
any way, decide the #erits of Petitioners- constitutional and other clai#s.: (Cove#!er /, &'$2
?uling at p. /). "he court focused on a !alance of the hardships incurring to each party if a stay
was not granted pending a decision on the #erits of the case. "he court found that a weighing of
the hardships favored petitioners, and therefore granted the stay. (?uling at pp. 5.$/).
Prior to the su!#ission of the !riefs on the #erits, and even following su!#ission of the
last !rief there have !een considera!le #otions and de!ate as to what record should !e
considered. "he !oard filed a certified record that included written co##ents provided to the
!oard
2
and the audio fro# the pu!lic hearing on )ugust &3, &'$2. 1n March &(, &'$(, the court
issued an order granting in part and denying in part a re<uest !y petitioners to su!#it additional

2
"he !oard received a nu#!er of co##ents fro# petitions that opposed a!ortion generally. "hose
docu#ents were redacted as duplicative. ()pp. $'').
$'

docu#entation. +ince that date, the parties have de!ated the a!ility of the court to view we!sites
that #ay contain #edical or a!ortion data. oth parties have cited to we!sites to support factual
propositions #ade. >or e0a#ple, PPH cited to a we!site to show that so#e of the sponsors of
the petition for rule#a8ing are #e#!ers of an organiAation that opposes a!ortion generally.
(PPH !rief at p. &&). "he !oard cited to several we!sites to support its view that a physical
e0a#ination is necessary prior to a #edical a!ortion. (oard-s !rief at pp. &'.&$).
"he court !elieves the !est course is to li#it the consideration of factual #atters to the
record !efore the agency. PPH actively participated in the pu!lic hearing !y offering several
witnesses, and su!#itted docu#ents for the !oard to consider !efore #a8ing its decision.
+upporters of the rule did the sa#e. "he !oard issued a written state#ent e0plaining its findings.
"here was a#ple opportunity for those in favor and in opposition to the rule of the issue to
su!#it evidence and argu#ents to the !oard. "here is #ore than ade<uate record to consider the
#erits of the parties contentions, !ased on the standard of review !efore the court, without
delving into we!sites that #ight have changing content and unrelia!le infor#ation.
(
>or these
reasons, petitioners- #otion to reopen the record is denied. "his is intended to !e responsive to
petitioners- #otion to clarify scope of the record.

(
"he court is #indful of the a!ility to consider legislative or constitutional facts in a case involving a
constitutional clai#. See (arnum v. )rien, 6%2 C.@.&d 3%&, 33$ (Iowa &''5). However, this case
involves #ultiple judicial review clai#s, of which it is not appropriate to consider facts outside the
record. "he court !elieves that all clai#s can !e fairly considered !ased on the record #ade !efore the
agency, as supple#ented !y PPH.
$$

CONCLUSIONS OF LAW
I. Standard o5 re!ie6.
A. *enera0 tandard.
Judicial review of agency rule#a8ing is governed !y Iowa *ode chapter $6). %uen v.
%lcoholic )everages *iv.$ %65 C.@.&d /3%, /35 (Iowa &''(). "he district court acts in an
appellate capacity, reviewing agency action under the standards set forth in Iowa *ode section
$6).$5($'). +owa ,ed. Soc. v. +owa )d. of -ursing, 32$ C.@.&d 3&%, 323 (Iowa &'$2). )
district court #ay grant relief if the agency action has prejudiced the su!stantial rights of the
petitioner and the action #eets one of the enu#erated criteria contained in section $6).$5($')(a)
through (n). Renda v. +owa Civil Rights Commn, 63( C.@.&d 3, $' (Iowa &'$'). ) party
challenging agency action !ears the !urden of de#onstrating the actionDs invalidity and resulting
prejudice. *2 .nterprises$ +nc. v. State$ *ep/t of +nspections 0 %ppeals, 6/& C.@.&d 2$ (Iowa
)pp. &''3); Iowa *ode section $6).$5(3)(a).
)n agency shall have only that authority or discretion delegated to or conferred upon the
agency !y law and shall not e0pand or enlarge its authority or discretion !eyond the powers
delegated to or conferred upon the agency. %uen v. %lcoholic )everages *iv., %65 C.@.&d /3%,
/5' (Iowa &''() (1uoting Iowa *ode E $6).&2). @ith that said, the power conferred on an
agency !y the legislature to adopt rules is <uite !road. %uen, %65 C.@.&d at /5'. In %uen, the
Iowa +upre#e *ourt cited to the agency-s statutory authority to enforce and i#ple#ent the laws
concerning alcoholic !everages, as well as the power to adopt all rules necessary to carry out its
delegated duties, in finding that the legislature had clearly vested the agency power to interpret
the law relating to li#itations on !usiness interests relating to licensing. +d.
$&

"he legislature has clearly vested professional licensing !oards with the power to #a8e
rules and interpret its governing statutes as related to the practice of its respective professions.
See +owa ,edical Society, 32$ C.@.&d at 323. In +owa ,edical Society, the Iowa +upre#e
*ourt held that the legislature clearly vested the Iowa oard of Cursing with rule#a8ing and
interpretive authority for Iowa *ode chapter $/& governing the practice of nursing. +d. (citing to
Iowa *ode section $(6.6%, which grants rule#a8ing authority to all of the professional licensing
!oards listed in the chapter). +i#ilarly, in "ouc# v. +owa )oard of Pharmacy .&aminers, 6/&
C.@.&d $(, $6 (Iowa &''3), the Iowa +upre#e *ourt held that the legislature has 9delegated
!road authority: to the Iowa oard of Phar#acy B0a#iners to regulate the practice of phar#acy
in Iowa through the adoption of rules. "he court again cited to section $(6.6%, as well as the
oard of Phar#acy-s governing statute, Iowa *ode chapter $//).
"he !oard of #edicine has the sa#e statutory authority to regulate the #edical profession
through rule#a8ing as the !oards of nursing and phar#acy. +ection $(6.6% si#ilarly applies to
the !oard of #edicine, and gives the !oard statutory authority to adopt all necessary and proper
rules to ad#inister the general provisions relating to the #edical profession. "he !oard-s
governing statute, Iowa *ode chapter $(3, provides powers si#ilar to the statutes governing the
!oards of nursing and phar#acy.
PPH did not strictly challenge the !oard-s rule as !eing inconsistent with its governing
statutes or otherwise outside its statutory authority. However, the court #ust re#ain #indful of
these legal standards governing agency discretion to retain the proper perspective when
considering the legal challenges actually #ade !y PPH. 1ne of the purposes for the $553
a#end#ents to chapter $6) was to har#oniAe differing court decisions regarding the level of
discretion to !e given agencies to interpret statutes. )s stated !y Professor )rthur onfield4
$2

@here the ,eneral )sse#!ly clearly delegates discretionary authority to an
agency to interpret or ela!orate a statutory ter# !ased on the agency-s own
special e0pertness, the court #ay not si#ply su!stitute its view as to the #eaning
or ela!oration of the ter# for that of the agency !ut, instead, #ay reverse the
agency interpretation or ela!oration only if it is ar!itrary, capricious,
unreasona!le, or an a!use of discretion =a deferential standard of review.
. . .
It would !e i#proper for a court to si#ply su!stitute, without any deference to the
agency-s view of the #eaning of a statutory ter#, the court-s own view of the
#eaning of a statutory ter# that the ,eneral )sse#!ly had clearly delegated to
the discretion of any agency to ela!orate, !ecause in that situation the court would
!e violating the statute delegating that discretionary authority to the agency.

)rthur onfield, %mendments to +owa %dministrative Procedure %ct$ Report on Selected
Provisions to +owa State )ar %ssociation and +owa State 2overnment, pp. %$.%& ($553)
(e#phasis in te0t) (hereafter referred to as 9onfield:); See also 3ocate.Plus.Com.$ +nc. v. +owa
*ept of Transportation, %/' C.@.&d %'5, %$2 (Iowa &''&) (citing to onfield while noting that
Iowa courts have 9given deference to agency interpretation of !road vague statutory ter#s:).
"here is no <uestion that the !oard has the power to esta!lish standards of practice for the
#edical profession. "hose standards include the authority to adopt and enforce standards
regarding the #ini#al standards of accepta!le and prevailing practice. Iowa *ode section
$(3.%(&)(g). "he legislature re<uires seven of the ten !oard #e#!ers to !e physicians, thus
giving the !oard a !uilt.in level of e0pertise of the #edical profession. )ccordingly, the !oard-s
adoption of rules relating to the practice of #edicine are entitled to deference, if co#pliant with
the other standards set forth in section $6).$5($').
)dditionally, the legislature singled out physicians as the only professionals to !e a!le to
perfor# an a!ortion. )ny person who ter#inates a hu#an pregnancy, with the 8nowledge and
voluntary consent of the pregnant person, is guilty of a class * felony. Iowa *ode section
$(

6'6.6(2). "he only e0ception to this provision is a person licensed to practice #edicine and
surgery or osteopathic #edicine and surgery under Iowa *ode chapter $(3. "he 7nited +tates
+upre#e *ourt endorsed a si#ilar statutory provision in Roe v. Wade, recogniAing that the +tate
#ay proscri!e a!ortion !y a person who is not a licensed physician. ($' 7.+. at $%/.%%. "he
court indicated that the +tate could regulate the standard of practice for a!ortion as any other
#edical procedure, noting that judicial and intra.professional re#edies #ay !e pursued if a
practitioner does not follow 9proper #edical judg#ent.: +d. )ccordingly, while the proposed
rule #ay !e new, the concept that physicians #ay !e su!ject to professional standards when
perfor#ing a!ortions has !een around since Roe.
". Standard re/ardin/ t2e #ro1+0/ation o5 r+0e.
PPH did not directly challenge the !oard-s co#pliance with the rule#a8ing process
esta!lished under Iowa *ode chapter $6). "his is for good reason, !ecause there is no !asis for
!elief that the !oard violated the statutory process. However, in light of the clai#s !y PPH that
the !oard-s process was tainted !y politics and i#proper purpose, it is useful to review the law
governing the adoption of agency rules and the !oard-s co#pliance therewith.
"he rule#a8ing process is typically initiated !y the agency and follows the process set
out in Iowa *ode section $6).(. "he agency #ust provide notice to the ad#inistrative rules
coordinator and pu!lish notice in the ad#inistrative !ulletin. )ny notice of intended action shall
!e pu!lished at least thirty.five days in advance of the action. "he agency #ust give all
interested persons at least twenty days to su!#it data, views or argu#ents in writing. If ti#ely
re<uested in writing !y at least twenty.five persons, the agency shall give the opportunity to
$/

#a8e an oral presentation. "he agency shall consider all written and oral su!#issions. "he
agency shall act within $3' days of the notice of the last date of oral presentation.
)ny proposed or adopted rule is su!ject to the review of the ad#inistrative rules review
co##ittee of the Iowa legislature, the governor, and the attorney general. Iowa *ode section
$6).((%). "he ad#inistrative rules review co##ittee consists of five senators (three chosen !y
the #ajority leader and two !y the #inority leader) and five representatives (three chosen !y the
spea8er and two !y the #inority leader). Iowa *ode section $6).3($). "he ad#inistrative rules
review co##ittee, governor, or attorney general #ay o!ject to all or part of the rule. Iowa *ode
section $6).((%). If an o!jection is filed !y one of these three !odies, the !urden of proof shifts
fro# any challenger to the agency to prove that the rule is unreasona!le, ar!itrary, capricious, or
otherwise !eyond the authority delegated to it. "his process provides an additional layer of
review and protection !y govern#ent !odies who have special e0pertise and 8nowledge of the
legislative and rule#a8ing process.
"here is a second process to initiate the rule#a8ing process. )ny interested person #ay
petition an agency to adopt, a#end, or repeal a rule. Iowa *ode section $6).6. @ithin si0ty
days fro# the su!#ission of a petition, the agency shall deny the petition, initiate the rule#a8ing
process esta!lished in section $6).(, or issue so#e other rule if not re<uired !y section $6).(.
In this case, the !oard followed the rule#a8ing process esta!lished in the statute. "he
!oard received a petition for rule#a8ing. "he !oard was re<uired to act within si0ty days. It
acted within the si0ty days !y initiating the rule#a8ing process set in section $6).(. It gave the
proper notice, allowed for written and ver!al co##ent, considered the co##ents provided, and
#a8e a decision within the ti#efra#es provided. "he record does not reflect any o!jections !y
$%

the legislative rules review co##ittee, the governor, or the attorney general. "he !oard followed
the legal process and any challenging party has the !urden of proof to show that the rule is
unreasona!le, ar!itrary, capricious, or otherwise !eyond the authority delegated to it.
II. C0ai1 1ade -7 PPH.
A. De,iion81a.in/ #ro,e 9 Se,tion 4:A.4);4%<;=<.
PPH-s first challenge is !ased on Iowa *ode section $6).$5($')(j), which allows the
court to reverse, #odify, or grant other appropriate relief fro# agency action if it is4
"he product of a decision.#a8ing process in which the agency did not consider a
relevant and i#portant #atter relating to the propriety or desira!ility of the action
in <uestion that a rational decision #a8er in si#ilar circu#stances would have
considered prior to ta8ing that action.

Ceither party cited to any case law interpreting this su!section and the court did not find any
case law interpreting that su!section in its research. However, Professor onfield descri!ed
su!sections (h), (i), (j), (l), and (#) in his report to !e 9specific e0a#ples of agency action that
any reviewing court should overturn as unreasona!le, ar!itrary, capricious, or an a!use of
discretion.: onfield at %5. He stated his opinion that none of these a#ended provisions 9really
changes the law under the original I)P) section $6).$5(3)(g),: !ut should result in 9so#ewhat
#ore structured, infor#ed, and syste#atic reviews !y courts under the unreasona!le, ar!itrary,
capricious, and a!use of discretion standards.: +d.
"here are a nu#!er of decisions that define the standard for agency action that is
unreasona!le, ar!itrary, capricious, or an a!use of discretion. )gency action is considered
ar!itrary or capricious when the decision was #ade 9without regard to the law or facts.: *oe v.
+owa )oard of ,edical .&aminers, 622 C.@.&d 6'/, 6'6 (Iowa &''6) (1uoting 2reenwood
$6

,anor v. +owa *ept of Public "ealth, %($ C.@.&d 3&2, 32$ (Iowa &''&)). )gency action is
unreasona!le if the agency acted 9in the face of evidence as to which there is no roo# for
difference of opinion a#ong reasona!le #indsF.G: +d.4 see also Citi5ens %ide67mbudsman v.
Rolfes, (/( C.@.&d 3$/, 3$5 (Iowa $55'). "he court typically defers to an agencyDs infor#ed
decision as long as it falls within a 9Aone of reasona!leness.: S. .. +owa Co'op. .lec. %ss/n v.
+owa 8tilities )d., %22 C.@.&d 3$(, 3$3 (Iowa &''$) (cite o#itted). @hen considering clai#s
under the unreasona!leness standard, the courts generally affir# the infor#ed decision of the
agency, and refrain fro# su!stituting its less.infor#ed judg#ent. %l'9hattat v. .ng/g 0 3and
Surveying .&amining )d., %(( C.@.&d $3, &2 (Iowa &''&).
PPH raised several ite#s that it contends the !oard did not consider when adopting the
su!ject rule. Bach is discussed under nu#!ered headings !elow. )s an initial #atter, however,
PPH argued that the process itself was irregular. During the course of the process, the !oard
heard fro# several individuals and entities suggesting the process was proceeding #ore <uic8ly
than usual. "he Iowa Medical +ociety (IM+) and Iowa 1steopathic Medical )ssociation
(I1M)) raised concerns that the !oard did not allow #ore ti#e for review and to receive input
fro# the #edical co##unity. ()pp. $62.6(, $55). "he !oard heard si#ilar concerns a!out
acting too <uic8ly fro# legal counsel during consideration of the petition for rule#a8ing, and
!oard #e#!ers )nn ,ales and Dr. Michael "ho#pson during the rule#a8ing process. Cone of
these individuals or entities advocated against the #erits of the rule itself, !ut regarding the
process used to adopt the rule.
"here is no dou!t that portions of the rule#a8ing process invited scrutiny, even though it
technically co#plied with the legal re<uire#ents. "he !oard acted on the petition for rule#a8ing
only three days after it was received, and in contravention of advice fro# its in.house counsel
$3

and attorney general representative. "he !oard-s attorney represented at oral argu#ent that the
June &3, &'$2 #eeting was the only #eeting scheduled within the si0ty day period that it has to
act on the petition, !ut the !oard could have scheduled another #eeting within that period, even
if !y telephone. "he governor-s attorney was present at the June &3, &'$2 #eeting and advised
the !oard it could proceed, which although correct legal advice, was contrary to the counsel
given !y the !oard- regularly assigned attorneys to ta8e #ore ti#e. 1f course, the presence and
advice given !y the governor-s attorney, even though she is also the +tate-s rules review
coordinator, attracts accusations that the process is #ore political than policy oriented. "he
!oard did little to te#per such accusations !y refusing to follow re<uests !y professional trade
groups such as IM+ and I1M) to ta8e additional ti#e for !efore adoption to receive #ore input
and engage in #ore discussion with sta8eholders.
However, the !oard did consider these concerns and responded to the# during its
decision adopting the rule. 1ne of the !oard #e#!ers e0pressly stated at the ti#e of adoption
that he felt the !oard had sufficient ti#e to study all #aterials, consider pu!lic input, and reach a
decision on the rule. "he !oard stated in its written state#ent following the adoption of the rule
that its #e#!ers studied the #atter !y reviewing #edical research papers and a significant
a#ount of pu!lic co##ents. "he !oard stated that the rule was narrowly drafted and li#ited to
standards of practice that physicians #ust use !efore conducting #edical a!ortions.
PPH-s point is not really a direct challenge, !ut #ore of a setup for other argu#ents
under section $6).$5($')(j). "he focus of su!jection (j) is on the failure to consider a 9relevant
and i#portant #atter: relating to the action in <uestion. "he argu#ent that the !oard-s process
was irregular and ta8en too <uic8ly is not a failure to consider a 9relevant and i#portant #atter,:
$5

!ut is offered to show that the !oard-s haste in acting led to its failure to consider relevant and
i#portant #atters relating to the proposed rule.
@hile the court appreciates the point #ade !y PPH and has considered its clai#s in that
conte0t, it is i#portant to re#e#!er that the ti#e spent on the deli!erative process was within
the statutory re<uire#ents for the adoption of rules. "he purpose of the statute is to esta!lish
standards for notice, pu!lic co##ent, and a deli!erative process. "he !oard received
considera!le infor#ation and input fro# the pu!lic as part as the !oard co#plied with the
statutory process.
/
Bven if the !oard usually ta8es #ore ti#e when adopting rules concerning
standards of practice, the !oard-s co#pliance with the statute de#onstrates that the process was
reasona!le fro# a notice and opportunity.to.!e.heard standpoint, a!sent so#e showing to the
contrary.
$. >ailure to consider past 9policy: concerning PPH-s tele#edicine a!ortion
progra#. PPH first clai#ed that the !oard failed to consider 9its own past policy: concerning
PPH-s tele#edicine a!ortion progra#. PPH clai#s that the !oard adopted a policy finding the
progra# to !e safe when it investigated two PPH doctors in &'$' and did not i#pose disciplinary
action. "he !oard responded with two argu#ents4 $) it did consider the prior action in &'$' (see
)pp. 5() and &) the !oard adopted no policy in &'$'.
"he !oard-s written state#ent regarding the rule shows that it did consider the &'$'
investigation when deciding to adopt the rule. "he !oard stated that it had not previously
adopted a rule or initiated a rule#a8ing process on tele#edicine #edical a!ortion services. "he
!oard also stated that the !oard #e#!ership had co#pletely changed over the prior three years,

5
"he !oard also provided so#e additional notice not re<uired !y statute = it issued a press release setting
the pu!lic hearing appro0i#ately a #onth !efore the hearing and it posted pu!lic co##ents to the
proposed rule online for the pu!lic to see.
&'

giving the present !oard reason to consider the health and safety concerns with the practice. "he
written state#ent de#onstrates co#pliance with the re<uire#ents in section $6).$5($')(j).
"he !oard-s action in &'$' was not a 9policy: as argued !y PPH. "he Iowa
)d#inistrative Procedures )ct defines a 9rule: as an 9agency state#ent of general applica!ility
that i#ple#ents, interprets, or prescri!es law or policyF.G: Iowa *ode section $6).&($$). )n
agency cannot rely on an agency state#ent of general applica!ility that i#ple#ents policy
without going through the rule#a8ing process. %nderson v. +owa *ept of "uman Services, 2%3
C.@.&d $'(, $'3 (Iowa $53/). "he !oard did not adopt a rule on tele#edicine #edical a!ortion
in &'$', nor did it even initiate a rule#a8ing process. "he !oard #ay have had any nu#!er of
reasons for not proceeding with a disciplinary process after receiving co#plaints in &'$', !ut
even if it dis#issed the co#plaints !ecause it considered PPH-s process to !e safe, that decision
cannot !e considered to !e policy. "he rule under review in this action is the first atte#pt !y the
!oard to set policy regarding a standard of care for #edical a!ortion.
Bven if the !oard had previously adopted a policy or rule, there is nothing in the statute or
governing law that would prevent it fro# reconsidering, revising, rescinding, or a#ending the
rule. 1ne of the purposes of the statute allowing an interested person to petition for rule#a8ing
is to see8 the repeal of a rule. See Iowa *ode section $6).6($). In fact, the legislature re<uires
each agency to review its rules every five years to identify rules that are outdated, redundant, or
inconsistent or inco#pati!le with statute or the agency-s own rules. Iowa *ode section
$6).6($). )n agency clearly has the discretion and power to change any rule that it has
previously enacted. "here was no prior rule governing #edical a!ortions !y tele#edicine, !ut
even if there had !een, the !oard would have had the power to review and change it, just as
future !oards will have the opportunity to review and consider changes or rescission of this rule.
&$

&. >ailure to consider standards for the practice of tele#edicine generally. PPH
clai#ed that the !oard failed to consider its own policies and other policies favoring tele#edicine
generally. "he !oard-s written state#ent shows that it did consider the i#pact the rule #ight
have on tele#edicine services generally. ()pp. 5(.5/). "he !oard deter#ined that the rule was
narrowly focused and would not prevent it fro# considering a !roader rule in the future.
"his is not the first ti#e the !oard has adopted rules focusing on a narrow standard of
practice. >or e0a#ple, the !oard has adopted a rule esta!lishing a standard of practice regarding
pain #anage#ent. See %/2 I)* $2.&. "hat rule re<uires the physician to conduct a physical
e0a#ination and co#prehensive #edical history prior to the initiation of treat#ent. %/2 I)*
$2.&(/)(a). "his shows that the !oard has not singled out #edical a!ortions as the only
procedure to re<uire a physical e0a#.
%

>urther, as pointed out !y the !oard in its !rief, a physical e0a# is the nor# for the
treat#ent of any type of #edical illness or condition, in that a patient #ust typically see a doctor
!efore getting a prescription to treat conditions as routine as ear infections. "here is nothing in
the record to show other conte0ts in which the !oard has either allowed or tolerated a practice of
tele#edicine without any physical e0a# !y a physician. "he !oard-s rule cannot !e considered
unreasona!le for not considering all possi!le uses of tele#edicine.
2./. "he !oard failed to loo8 at the actual facts of PPH-s tele#edicine progra#. PPH
argued that the !oard failed to loo8 into the actual facts of PPH-s progra# and the role of PPH-s
physicians within the progra#. PPH also argued that its progra# was as safe as other a!ortion
services. "he court-s review of the pu!lic hearing, the !oard-s #inutes of the #eeting in which

6
"he !oard has adopted other specific standards of care in chapter $2 of its rules.
&&

it approved the rule, and the !oard-s written state#ent shows this is flatly not true. "here was
considera!le de!ate at the pu!lic hearing a#ong PPH and other opponents of the rule, supporters
of the rule, and the !oard itself regarding the need for a doctor to conduct an in.person physical
e0a# of the patient !efore prescri!ing the #edication that would induce an a!ortion. "he !oard
specifically referenced written state#ents and studies offered !y PPH at the pu!lic hearing. "he
record shows that the !oard understood PPH-s protocol and reviewed studies su!#itted, !ut
disagreed with PPH when setting the standard of practice.
"he cru0 of the !oard-s decision to adopt the rule is that an in.person physical
e0a#ination should !e done !efore prescri!ing a!ortion inducing drugs. "here are legiti#ate
reasons to support the !oard-s decision. >irst, the !oard cited to various conditions that are ris8
factors for using #ifepristone and #isoprostol (such as ectopic pregnancy or undiagnosed
adne0al #ass) and other conditions for which there is no data as to the safety or effectiveness of
the drugs (such as hypertension or severe ane#ia). "he !oard cited to studies in which wo#en
died due to the failure to diagnose ectopic pregnancy. "he !oard felt it i#portant to the health
and safety of the pu!lic that the treating physician conduct a !asic in.person physical e0a# to
e0clude the list of e0clusionary factors that have not !een dee#ed safe !y study.
+econd, the !oard e0pressed concern with the <uality of the ultrasound perfor#ed to
deter#ine the gestational age of the e#!ryo. 7nder either of the pri#ary protocols for use of
#edical a!ortion, it is critical to deter#ine the gestational age !ecause the drugs are only safe is
used early in the pregnancy = within forty.nine days of gestation under the >D).approved
protocol and within si0ty.three days of gestation under the protocol used !y PPH. )lso, the
!oard found that a !asic physical e0a# is needed in all cases to e0clude ris8 factors, and a pelvic
&2

e0a# #ay !e needed in so#e cases to corro!orate ultrasound findings and properly deter#ine
gestational age.
)dditionally, the !oard found that an in.person e0a#ination #ay strengthen the patient.
physician relationship. "he !oard found that a personal #eeting !etween physician and patient
#ay reinforce the need to return for a follow.up e0a#ination, and thus increase the li8elihood of
the follow.up e0a#. ) follow.up e0a# is re<uired under any of the pri#ary protocols for
#edical a!ortion, including the protocol used !y PPH.
"he !oard-s adoption of the rule is one that is precisely within the e0pertise of the !oard
of #edicine and not one to !e decided !y the court. "he !oard includes seven physicians who
are educated, trained, and e0perienced in the practice of #edicine. Iowa *ode section
$(6.$(($)(!) see also Iowa *ode section $(%.$%($) (re<uiring each physician to have !een in
practice for five years). "he !oard-s decision is supported !y the opinions of other physicians
and health care professionals who testified at the pu!lic hearing and su!#itted docu#ents as part
of the pu!lic record. "he petition for rule.#a8ing itself was signed !y five physicians. "he
!oard-s decision is supported !y its reasoning that a physician needs to conduct a physical e0a#,
which the !oard generally considers to !e 9the cornerstone of good #edical care.: ()pp. 5/).
"he >D) standards also re<uire a physical e0a#ination. "he record shows that si0teen states
have ta8en action to re<uire a physician to !e physically present !efore prescri!ing an a!ortion
inducing drug. "he record does not show any state that has for#ally approved the #edical
a!ortion !y tele#edicine protocol used !y PPH.
PPH-s position that its protocol is safe and serves the welfare of the pu!lic also has
support in the record, #ost significantly fro# the testi#ony and study perfor#ed !y Dr. Daniel
&(

,ross#an. However, it is not for the court to review #edical studies and deter#ine which is the
#ost persuasive. If it did so, it would !e su!stituting its judg#ent for that of the !oard of
#edicine. "he only <uestion for the court is whether the !oard considered the infor#ation
su!#itted !y PPH and other opponents of the rule. "he !oard clearly considered the infor#ation
provided !y PPH, !ut disagreed with PPH-s opinions and ulti#ately deter#ined that the
proposed rule !etter #et the !oard-s goal of protecting the safety and welfare of Iowans.
%.3. "he rule will create a hardship for rural Iowa wo#en. PPH-s points si0 through
eight are si#ilar will !e discussed as a group. PPH has !een a!le to provide #edical a!ortions at
#ore clinics through tele#edicine, #a8ing #edical a!ortions #ore accessi!le to rural Iowa
wo#en. @ithout the availa!ility of tele#edicine #edical a!ortions, PPH argued that wo#en
will need to travel further, which will lead to delays, which, in turn, will increase ris8s. PPH
argued that these o!stacles #ay lead #ore wo#en to illegal a!ortions.
"his argu#ent is, once again, not a #atter of the !oard failing to consider PPH-s position,
!ut disagreeing with it. "he !oard specifically considered the argu#ent that the rule would li#it
rural Iowa wo#en-s access to #edical a!ortions. ()pp. 5(). "he !oard did not dispute that the
rule would result in #edical a!ortions !eing conducted in fewer locations. ?ather, it responded
!y finding that all wo#en in Iowa should !e entitled to the sa#e high level of health care,
whether they live in rural or ur!an Iowa. "he !oard found that the rule !est protects all patients-
health and safety. "he !oard-s reasoning is not unreasona!le and #ust !e granted deference !y
the court.
5. "he !oard ignored !asic facts a!out the >D) approval process. Ce0t, PPH
argued that the !oard did not consider facts regarding the >D) approval process. "here is no
&/

evidence to suggest that the !oard ignored evidence su!#itted regarding the >D) approval
process. In fact, the proposed rule would not prohi!it so#e aspects of PPH-s protocol, such as
the si0ty.three day ti#efra#e to use #ifepristone and #isoprostol in co#!ination. "he >D) has
only approved a protocol up to forty.nine days of gestation, !ut the !oard-s rule does not li#it
#edical a!ortions to forty.nine days. "he rule would allow wo#en to receive a #edical a!ortion
within si0ty.three days of gestation if they #eet the physical e0a# re<uire#ent and other
re<uire#ents of the rule.
$'.$$. 7se of office staff to perfor# e0a#s. PPH-s final point is that so#e aspects of a
physical e0a#, such as vital signs and ultrasounds, are routine tas8s fre<uently perfor#ed !y
nurses and #edical assistants. PPH clai#ed that it provided infor#ation to show staff #e#!ers
were <ualified to perfor# ultrasounds. "he !oard did e0press so#e of those concerns, !ut its
concerns went deeper than whether *M)s could perfor# ultrasounds.
6
)gain, the !oard-s
central concern was that a doctor !e present to conduct a physical e0a# !efore the a!ortion. "he
!oard considered the infor#ation provided !y PPH, !ut ca#e to a different conclusion as to the
re<uired standard of practice.
". Not re>+ired -7 0a6 and ne/ati!e i1#a,t 9 Se,tion 4:A.4);4%<;.<
PPH-s second clai# is under Iowa *ode section $6).$5($')(8), which allows reversal if
the agency-s action is4
FnGot re<uired !y law and its negative i#pact on the private rights affected is so
grossly disproportionate to the !enefits accruing to the pu!lic interest fro# that
action that it #ust necessarily !e dee#ed to lac8 any foundation in rational
agency policy.

6
+usan "hayer, the for#er long.ti#e PPH e#ployee who testified at the !oard-s pu!lic hearing, stated
that she was told that she would !e e0pected to perfor# ultrasounds, even though she was a center
#anager and had no #edical training at all.
&%

+u!section (8) is one of the su!sections which Professor onfield descri!ed as a #ore structured
version of the unreasona!le, ar!itrary, capricious, and a!use of discretion standard that was
previously part of chapter $6). )ccordingly, PPH-s clai# under this section will !e reviewed
with that standard in #ind. See :iec#ler v. %mpride, 6(2 C.@.&d /2', /2&.22 (Iowa &''6)
(applying the unreasona!le, ar!itrary, capricious, or a!use of discretion standard to a clai# #ade
under su!section (8)).
"his argu#ent a#ounts to a reiteration of points #ade a!ove. PPH argued that the rule
serves no pu!lic health !enefit and would deprive accessi!le, safe, and early a!ortion services to
hundreds of Iowa patients per year. However, !oth points are a #atter of de!ate. "he !oard
deter#ined that a physical e0a# was i#portant to protect Iowa patients, and in doing so,
disagreed with PPH-s argu#ent that its protocol was just as safe. "he !oard did not dispute that
the rule #ight result in the PPH closing clinics, and thus #a8e access to #edical a!ortions less
convenient to Iowans in those areas. Instead, the !oard found that the !enefits of providing a
higher standard of practice outweighed the convenience factor. @hile a!ortion #ay not !e
convenient and #ay cost #ore #oney due to driving distance, the rule would not deprive Iowa
patients of #edical a!ortions. )t the very least, the court cannot find that the negative i#pact of
the !oard-s rule is so grossly disproportionate to the !enefits accruing to the pu!lic interest that it
#ust necessarily !e dee#ed to lac8 any foundation in rational agency policy.
C. I1#ro#er #+r#oe 9 Se,tion 4:A.4);4%<;e<.
PPH ne0t argued that the !oard-s decision to adopt the rule should !e reversed under
Iowa *ode section $6).$5($')(e), which allows court action if the agency action is4
&6

FtGhe product of decision #a8ing underta8en !y persons who were i#properly
constituted as a decision.#a8ing !ody, were #otivated !y an i#proper purpose,
or were su!ject to dis<ualification.

Professor onfield offered no real e0planation for new su!section (e), other than (d) and (e) were
9!eneficial, clarifying ela!orations: of original sections $6).$5(3)(d) and (e). "hose original
su!sections si#ply per#itted reversal when (d) #ade upon unlawful procedure, or (e) affected
!y other error of law. +owa ;arm )ureau ;ederation v. .nvironmental Protection Commn,
&'$( @H 2266'6&, II C.@.&d III, n. 3 (Iowa July $$, &'$().
In +owa ;arm )ureau, the Iowa +upre#e *ourt considered a challenge to rule#a8ing
under su!section (e). "he plaintiff o!jected to a rule adopted !y the Iowa Bnviron#ental
Protection *o##ission (BP*), in part, !ecause one of the co##ission #e#!ers appointed !y
,overnor *ulver was e#ployed !y a nonprofit environ#ental organiAation and had ta8en an
advocacy position on the su!ject #atter of the proposed rules. +d. at &. In fact, as part of her
full.ti#e jo!, the co##ission #e#!er had developed proposed rules that were presented to the
agency as part of a petition for rule#a8ing, and she was active in pushing the agency to initiate
the rule#a8ing process. "he co##ission #e#!er was recogniAed as a lead person a#ong
environ#ental groups advocating for the rule proposed in the petition.
"he court held that su!section (e) was generally intended to 9incorporate general conflict.
of.interests standards and ena!le judicial develop#ent of these standards.: +d. at J3. I#portant
to this case, the court found that the standard for judging conflicts of interest in a rule#a8ing
conte0t are #uch #ore lenient than judging conflicts in the judicial setting of a contested case.
+d. at J$'.$$.
&3

"he court started !y generally recogniAing the a!ility of the governor to develop policy
within the e0ecutive !ranch through the appoint#ent of !oard and co##ission #e#!ers with
co#pati!le views4
F)G governor, as the top.elected representative of the people, has always had the
a!ility to shape the overall perspective and direction of co##issions through the
power of appoint#ent. "hus, the 9political considerations: e0cluded fro# the
appoint#ent process !y statute do not nor#ally e0tend to the a!ility of a governor
to appoint *o##ission #e#!ers who have particular views a!out su!jects
e0pected to co#e !efore the *o##ission that #ay !e consistent with the views of
the ,overnor or the political party of the ,overnor. Instead, this concept reflects
the !asic nature of governing through pu!lic elections and is deeply e#!edded
within the e0ecutive and legislative !ranches of govern#ent.

+d. at J/.%. )gency decision.#a8ers #ust 9consider in good faith, and to o!jective evaluate,
argu#ents presented to the#; agency officials, however, need not !e su!jectively i#partial.: +d.
at J$/ (cites o#itted). >avoring a specific rule over another is not a !asis for dis<ualification
a!sent evidence that the #e#!er-s view 9could not !e changed !y the rule#a8ing proceedings
that were to follow.: +d. "he court esta!lished the following standard in considering challenges
to rule#a8ing !ased on an i#proper purpose clai#4
we thin8 a district court #ay vacate a rule#a8ing on the ground of !ias upon no
less than a showing !y clear and convincing evidence that the ad#inistrator has
underta8en the agency action with an 9unaltera!ly closed #ind,: there!y #a8ing
their action 9#otivated !y an i#proper purpose.

+d. "o e#phasiAe the difficulty in #eeting this standard, the court cited to a federal decision
finding that no court had ever, under any standard, dis<ualified an agency ad#inistrator fro#
participating in an infor#al rule#a8ing process !ased on !ias. +d. at $% citing 3ead +ndustries
%ssociation$ +nc. v. .nvironmental Protection %gency, %(6 >.&d $$2' (D.*. $53'). )pplying
&5

these standards, the court found that the BP* #e#!er was not dis<ualified fro# approving the
rule notwithstanding her prior research and advocacy on the sa#e issues. +d. at $6.
PPH-s pri#ary argu#ent focused on the role of !oard #e#!er Monsignor >ran8
ognanno. 1n )ugust &', &'$', prior to his appoint#ent to the !oard, Monsignor ognanno
sent a letter to the !oard as8ing it to ta8e action to end tele#edicine a!ortions. ()pp. /%'). His
letter centered on the protection of a 9pre.!orn child,: and not the standard of care to conduct
#edical a!ortions. >ollowing the petition for rule#a8ing in &'$2, now as a !oard #e#!er
appointed !y ,overnor ranstad, Monsignor ognanno sent e#ails to !oard #e#!ers with
attach#ents that supported adoption of the rule. ()pp. /%$.%$&). "he attach#ents include
infor#ation fro# PPH sources, other articles, and so#e personal stories regarding #edical
a!ortion. Bach of the attach#ents concerned #edical a!ortions, and not just a!ortion generally.
Monsignor ognanno voted to accept the petition for rule#a8ing and to adopt the proposed rule.
In his pu!lic co##ents during the adoption of the rule, Monsignor ognanno focused on the
standard of #edical care and not his !eliefs on a!ortion generally. ()pp. /$5).
"here is very little difference !etween Monsignor ognanno-s actions and that of the
BP* #e#!er in the +owa ;arm )ureau case. oth cases involve individuals who too8 a position
on an issue prior to joining the agency, pushed and advocated for the rule consistent with their
prior position, and voted for adoption. In so#e ways, the co##issioner #e#!er in +owa ;arm
)ureau was #ore involved prior to joining the co##ission !ecause she had drafted a petition for
rule#a8ing that ulti#ately led to adoption of a rule that was closely aligned with that view.
"he one concern here, in co#parison to +owa ;arm )ureau, is that the statute governing
the BP* not only re<uires five of its #e#!ers to !e actively engaged in delineated practice areas,
!ut all #e#!ers to have 8nowledge of the su!jects e#!raced !y the agency-s governing laws.
2'

+d. at / citing to Iowa *ode section (//).%($). "he statute governing the !oard-s #e#!ership
re<uires seven physician #e#!ers, !ut sets no re<uire#ents for the three pu!lic #e#!ers.
Monsignor ognanno is one of the pu!lic #e#!ers. +o, while BP* #e#!ers could !e e0pected
to arrive with so#e preconceived ideas on policy issues relative to the #ission of the agency
!ased on their 8nowledge of the su!ject area, the sa#e would not necessarily hold true of pu!lic
#e#!ers on the !oard of #edicine. >urther, Monsignor ognanno-s opposition to a!ortion went
!eyond issues of standards of #edical care that are the province of the !oard.
)fter considering the entire record, the court cannot find Monsignor ognanno engaged
in an i#proper purpose !ased on the high standard set !y the Iowa +upre#e *ourt in +owa ;arm
)ureau. Monsignor ognanno #ay oppose all a!ortion, !ut the record de#onstrates that he
focused his attention on #edical a!ortion and the applica!le standard of care. "he #aterials he
sent to other !oard #e#!ers focused on #edical a!ortion, and his pu!lic co##ents were li#ited
to the standard of care for #edical a!ortion. Bven though he #ight personally choose #ore
li#its or even a total !an on a!ortion, the rule he supported does not !an a!ortion in general, nor
does it !an #edical a!ortion specifically. His vote in favor of the rule was supported !y seven
other !oard #e#!ers including si0 of the seven physician #e#!ers. "here is not clear and
convincing evidence to show that Monsignor ognanno-s participation in the adoption of the
rule was i#proper as defined !y the Iowa +upre#e *ourt.
PPH also argued that the petition for rule#a8ing was i#proper !ecause it was supported
!y individuals who see8 a total !an on a!ortion. "he i#proper purpose provision is directed at
the decision.#a8er, and not the intent of the individuals who re<uest agency action. @hatever
the intent of the individuals who see8 the rule#a8ing, the court #ust focus on the action ta8en !y
the agency, and not that of the parties see8ing rule#a8ing.
2$

D. PPH3 ,ontit+tiona0 ,0ai1.
Federa0 ,ontit+tion ,0ai14 PPH-s final clai# is that the !oard-s rule violates the due
process and e<ual protection clauses of the Iowa and 7nited +tates *onstitutions. "he standard
for evaluating the federal constitutional clai#s is set forth in Planned Parenthood of
Southeastern Pennsylvania v. Casey, /'/ 7.+. 322, 363.65 ($55&). In Casey, the court
reaffir#ed the central holding of Roe v. Wade that the +tate #ay not prohi!it any wo#an fro#
#a8ing the ulti#ate decision to ter#inate her pregnancy !efore via!ility. +d. "o protect the
central right recogniAed !y Roe while at the sa#e ti#e acco##odating the +tateDs profound
interest in protecting potential life, the court adopted an 9undue !urden analysis.: +d.
)n undue !urden e0ists, and therefore a provision of law regulating a!ortion is
unconstitutional, 9if its purpose or effect is to place a su!stantial o!stacle in the path of a wo#an
see8ing an a!ortion !efore the fetus attains via!ility.: +d. "he court recogniAed that, 9FaGs with
any #edical procedure, the +tate #ay enact regulations to further the health or safety of a wo#an
see8ing an a!ortion.: +d. However, 9FuGnnecessary health regulations that have the purpose or
effect of presenting a su!stantial o!stacle to a wo#an see8ing an a!ortion: #ay a#ount to an
undue !urden. +d.
"he Casey court considered five provisions of Pennsylvania law under the undue !urden
standards. 1ne of the provisions re<uired that, e0cept in a #edical e#ergency, a physician #ust,
at least twenty.four hours !efore perfor#ing an a!ortion, infor# the patient of the nature of the
procedure, the health ris8s of a!ortion and child!irth, and pro!a!le gestational age of the un!orn
child. +d. at 33$. "he plaintiff clai#ed that the twenty.four hour waiting period i#posed an
undue !urden on wo#en see8ing an a!ortion !ecause so#e wo#en #ust travel a long distance to
2&

an a!ortion provider, and the necessity of #a8ing two trips to a physician would result in delays
and cause the# to incur additional financial and e#otional costs. +d. at 33%. "he court accepted
the argu#ent that the waiting period would have the effect of increasing the cost and ris8 of
delay of a!ortions, !ut did not find that the waiting period a#ounted to a su!stantial o!stacle to
a!ortion. "he court specifically rejected the clai# that a wo#an has a right to a!ortion on
de#and. +d. at 336. "he court found that the twenty.four hour waiting period did not violate due
process.
In 2on5ale5 v. Carhart, //' 7.+. $&(, $/3 (&''6), the court added to the undue !urden
analysis that restrictions on a!ortions #ust also pass rational !asis review. See Planned
Parenthood of 2reater Te&as v. %bbott, 6(3 >.2d /32, /5' (/
th
*ir. &'$(). "he %bbott court
rejected Planned Parenthood-s argu#ent that a strict scrutiny test should !e used. +d. "he
rational !asis test only re<uires the court to consider whether there is a reasona!le fit !etween the
govern#ent interest and #eans utiliAed to advance that interest. 9ing v. State, 3$3 C.@.&d $, 2&
(Iowa &'$&).
In %bbott, Planned Parenthood challenged two provisions passed !y the "e0as legislature.
"he first re<uired physicians who perfor# or induce a!ortions to have ad#itting privileges at a
hospital no #ore than thirty #iles fro# the location the a!ortion is perfor#ed. %bbott, 6(3 >.2d
at /36. "his was e0pected to reduce the nu#!er of locations at which a!ortions could !e
provided. "he second provision re<uired #edical a!ortions to !e perfor#ed in co#pliance with
the >D) protocol. +d.
In upholding the "e0as law, the %bbott court found no undue !urden to the ad#itting
privileges re<uire#ent even though the change in law #ay re<uire patients to increase travel !y
22

up to $/' #iles to o!tain an a!ortion. "he court cited the district court-s decision in Casey,
which found that wo#en in si0ty.two of Pennsylvania-s si0ty.seven counties were re<uired to
travel at least one hour and so#eti#es longer than three hours to o!tain an a!ortion fro# the
nearest provider. +d. at /53 citing to Casey, 6(( >.+upp. $2&2, $2/& (B.D.Pa. $55'). "he
+upre#e *ourt found no undue !urden in Casey, even though the twenty.four hour waiting
period re<uired #ost wo#en to #a8e two trips. "o put the #atter in perspective, the court noted
that, !ecause only thirteen of "e0as- &/( counties had a!ortion facilities !efore the change in
law, any o!stacles created did not su!stantially alter the access to a!ortion services co#pared
with access prior to enact#ent. +d. at /56.
"he court li8ewise found no undue !urden to the #edical a!ortion provision. Planned
Parenthood argued that the law i#posed an undue !urden on wo#en see8ing an a!ortion of
fetuses with an age !etween fifty and si0ty.three days !ecause #edical a!ortion would !e
prohi!ited. "he court rejected that clai#, noting that the "e0as law did not !an an entire
a!ortion #ethod, !ut rather, shortened the window during which a wo#an #ight choose a
#edication a!ortion. +d. at %'(. "he court reiterated the holdings fro# Casey and 2on5ale5 that
discouraged facial constitutional attac8s on statutes (or in this case, an ad#inistrative rule)
!ecause there is often too little evidence to show that a particular condition has occurred or is
li8ely to occur. +d. at %'(.
"here is no dispute that i#ple#entation of the !oard-s rule will reduce the locations at
which a!ortions are provided. PPH currently has facilities in four cities that offer surgical and
#edical a!ortions4 ettendorf, Des Moines, Iowa *ity, and +iou0 *ity. (Meadows affidavit;
)pp. /5$). It offers tele#edicine #edical a!ortions in ten locations, although two (7r!andale
and a second Des Moines location) are in Pol8 *ounty. Dr. Meadows of PPH stated in her
2(

affidavit that PPH would close the ten tele#edicine locations if the rule goes into effect, thus
leaving only four PPH locations to provide a!ortion services. )s an e0a#ple, a wo#an fro#
*reston or ?ed 1a8, who can presently o!tain a tele#edicine a!ortion in her ho#e town, would
have to drive to *ouncil luffs or Des Moines to o!tain an a!ortion fro# a PPH provider.
@hile i#ple#entation of the rule will result in longer travel ti#es and additional costs for
so#e wo#en who see8 a!ortions, there is no undue hardship under the +upre#e *ourt-s test.
"he courts have already found that travel distances of $/' #iles or travel ti#e of three hours are
not undue !urdens. "here is no indication that any wo#an in Iowa would have a longer travel
ti#e than that approved in Casey. )lso, PPH-s argu#ent does not consider that other a!ortion
providers have !een availa!le in Iowa. Prior to PPH !eginning its tele#edicine protocol in late
&''3, there were eleven providers in Iowa offering a!ortion services in nine counties. ()pp.
//(.//). "he location of the other providers was not listed in the record, !ut the other providers
necessarily operated in so#e counties not serviced !y PPH. "herefore, the cost and distance
argu#ent is not as dire as portrayed !y PPH. )nd while nine of ninety.nine counties #ay see#
s#all, the proportion of counties offering providers was greater in Iowa than "e0as, in which
only thirteen of &/( counties had providers, and Pennsylvania, in which only five of si0ty.seven
counties had providers.
"he !oard-s rule is li8ewise supported !y a rational !asis. )s discussed a!ove, the !oard
is authoriAed to adopt a standard of practice, and it did so in this instance on rational grounds.
"he rule does not prevent PPH or any other a!ortion provider fro# offering #edical a!ortions,
!ut si#ply re<uires an in.person physician e0a#ination as the center of its standard of practice.
"he rule li8ewise does not prevent PPH fro# using its protocol up to si0ty.three days of
gestation, even though not co#pliant with the protocol approved !y the >D). "he rule
2/

constitutes a reasona!le fit !etween the !oard-s interest in protecting the safety and welfare of
patients, and the #eans utiliAed to advance that interest.
PPH also #ade an e<ual protection clai#. "ypically, when the rational !asis test is
involved, the court evaluates that !asis si#ilarly for e<ual protection and due process purposes.
9ing v. State, 3$3 C.@.&d $, 2& (Iowa &'$&). However, as pointed out !y the !oard in its !rief,
the clai# is difficult to evaluate !ecause PPH has not precisely defined the groups it clai#s has
!een treated differently, a #ust for an e<ual protection evaluation. "o any e0tent PPH clai#s
that the !oard-s rule has violated e<ual protection !ecause tele#edicine a!ortion is treated
differently than other tele#edicine, such a facial challenge #ust !e rejected for reasons discussed
in 2on5ale5. "here is no evidence indicating to what e0tent the !oard allows tele#edicine in
other conte0ts, so there is no #eans to evaluate a !road e<ual protection clai#.
State ,ontit+tion ,0ai14 PPH finally argued that the rule violates Iowa constitutional
provisions relating to due process and e<ual protection. "he Iowa and federal constitutions have
generally, throughout the history of this +tate, !een construed si#ilarly. See e.g. )owers v. Pol#
County )oard of Supervisors, %23 C.@.&d %3&, %35 (Iowa &''&) (9FwGe usually dee# the federal
and state e<ual protection clauses to !e identical in scope, i#port, and purpose.:). PPH argued
that the court should consider the Iowa constitutional clai#s !y applying a higher standard,
citing to the Iowa courts a!ility to e#ploy a different analytical fra#ewor8 to 9independently
apply the federally for#ulated principles.: (PPH !rief at &/).
PPH-s argu#ent has so#e support in the case law. "he concept that the Iowa courts can
interpret the Iowa constitution differently than the 7nited +tates +upre#e *ourt has interpreted
the federal constitution was recently advanced !y the Iowa +upre#e *ourt-s decision in Racing
2%

%ssociation of Central +owa v. ;it5gerald, %6/ C.@.&d $ (&''() (hereinafter, R%C+). In R%C+,
the Iowa +upre#e *ourt found a ta0 statute unconstitutional under the federal and state e<ual
protection clauses. "he +tate successfully sought certiorari to the 7nited +tates +upre#e *ourt,
which reversed in a unani#ous decision. "he case ca#e !ac8 to the Iowa +upre#e *ourt to
decide the Iowa constitutional clai#. "he court used the sa#e constitutional test to decide the
Iowa clai#, !ut again found the statute unconstitutional, even though the 7nited +tates +upre#e
*ourt had found the sa#e statute constitutional using the sa#e test in the sa#e case.
"he approached used !y the #ajority in R%C+ has !een criticiAed. Justice *ady, in
dissent, while recogniAing that state courts have a role in protecting individual rights not
recogniAed !y the federal courts, stated that the doctrine of independent interpretation cannot !e
used to justify a decision that conflicts with the 7nited +tates +upre#e *ourt in every instance.
+d. at $6.$3. Justice @ater#an, who was appointed to the court following R%C+, has stated that
R%C+ should !e overruled as 9plainly erroneous.: <west Corp. v. +owa State )oard of Ta&
Review, 3&5 C.@.&d //', /%% (Iowa &'$2) (@ater#an, J., concurring). In 9ing, a #ajority of
the court ruled that R%C+ has 9not !een the death 8nell for traditional rational !asis review,: thus
see#ingly li#iting the application of the R%C+ decision in future cases involving a rational !asis
review. 3$3 C.@.&d at 2'.
Cotwithstanding these criti<ues of R%C+, the Iowa +upre#e *ourt has continued to
e#ploy the concept of interpreting the Iowa *onstitution differently than decisions interpreting
the 7nited +tates *onstitution in cases involving #ore highly protected civil rights. In (arnum
v. )rien, 6%2 C.@.&d %3& (Iowa &''5), the court found an Iowa #arriage statute unconstitutional
under the e<ual protection clause of the Iowa *onstitution !ecause it denied #arriage !etween
individuals of the sa#e se0. "he court reviewed the history of Iowa courts !eing on the forefront
26

of recogniAing and protecting various civil rights, often !efore the federal courts or the courts of
other states. +d. at 366.63. "he (arnum decision has served as a lead decision as other states
and federal courts considered si#ilar challenges to sa#e.se0 #arriage.
)s recently as July $3, &'$(, the court, in a four.to.three decision, reversed a cri#inal
conviction under the warrants clause of the Iowa *onstitution, notwithstanding a unani#ous
&''$ 7nited +tates +upre#e *ourt decision to the contrary. State v. Short, &'$( @H 2/26'&5,
II C.@.&d II (Iowa &'$(). >ollowing a lengthy review of the Iowa and federal lines of cases,
the court stated its disagree#ent with the trend of 7nited +tates +upre#e *ourt decisions, and
declined to overrule an Iowa case that was inconsistent with the #ore recent 7nited +tates
+upre#e *ourt decisions. Cow.*hief Justice *ady specially concurred to 9e#phasiAe the
i#portance of independently interpreting our Iowa *onstitution.: +d. at 2$.
"his approach does create challenges at the district court level when faced with a clai#
under the Iowa *onstitution and one party presents a see#ingly controlling 7nited +tates
+upre#e *ourt decision. However, this does not appear to !e an instance that calls for a
different evaluation under the Iowa *onstitution. "he undue !urden standard has !een in place
at the federal court level for twenty.two years since Casey was announced in $55&. "here is no
co#para!le line of cases at the +tate level. "he court could only find one reference to Casey in
an Iowa appellant court decision, and that was #erely a footnote in War .agle (illage
%partments v. Plummer, 66/ C.@.&d 6$(, n.2 (Iowa &''5). )s pointed out !y PPH, there is a
reference in Sanche5 v. State, %5& C.@.&d 3$&, 3&' (Iowa &''/) to a!ortion !eing a funda#ental
right, !ut the reference was in passing and not central to the holding to the case, which involved
a challenge to the denial of a driver-s license to illegal aliens.
23

"he lac8 of any parallel state case law e0perience to the federal line of cases is i#portant
when considering whether the due process clause of the Iowa *onstitution should !e utiliAed to
develop a different standard fro# Casey. Casey itself was announced nineteen years after Roe,
so the federal courts now have #ore than forty years of e0perience in applying the challenging
!alancing test discussed in that line of cases. In contrast, cases such as R%C+ and Short involved
issues that were co##only decided in Iowa courts, so Iowa courts at least had so#e conte0t to
consider the possi!ility of alternative tests. (arnum too involved fa#iliar principles of e<ual
protection, !ut (arnum is different !ecause Iowa was on the forefront of jurisdictions
considering challenges to statutes prohi!iting sa#e.se0 #arriage. Moreover, the reasoning in
(arnum is hardly trou!ling fro# a constitutional standpoint, as there is little <uestion in
hindsight that the result would have !een any different if the court had decided the case under the
federal e<ual protection clause.
Iowa courts are certainly fa#iliar with su!stantive due process clai#s in other conte0ts,
!ut this court is not inclined to deviate fro# the co#ple0 constitutional !alancing tests set forth
in Casey and 2on5ale5.
3
7nli8e (arnum and other cases cited in (arnum where Iowa courts
played a leading role on i#portant constitutional issues, the para#eters governing legaliAed
a!ortion in this country were led !y the 7nited +tates +upre#e *ourt through its decision in Roe
v. Wade, and refined !y the decisions that followed. "here is no reason to deviate fro# the
standards set !y the federal courts. "herefore, PPH-s clai#s under the Iowa *onstitution #ust
!e denied for the sa#e reasons which the federal constitutional clai#s are denied.

8
?ecent Iowa decisions considering su!stantive due process clai#s follow the federal standards. 9ing,
3$3 C.@.&d at 2$.2&; "orsfield ,aterials$ +nc. v. City of *yersville, 32( C.@.&d (((, (/3./5 (Iowa
&'$2).
25

RULIN*
"he clai#s #ade in the petition for judicial review are here!y denied. "he !oard-s rule
set forth at %/2 I)* $2.$' is upheld as valid. "he stay previously put in place !y the court on
Cove#!er /, &'$2 is lifted, effective 2' days fro# the date of this ruling, a!sent any stay granted
!y this court or the Iowa +upre#e *ourt. )ll costs are assessed to petitioners.
State of Iowa Courts
Type: OTHER ORDER
Case Number Case Title
CVCV046429 PLANNED PARENTHOOD V. IOWA BOARD OF MEDICINE
So Ordered
Electronically signed on 2014-08-18 16:13:11 page 40 of 40

Ruling On Telemed Abortion Judicial Review

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IN THE IOWA DISTRICT COURT FOR POLK COUNTY

PLANNED PARENTHOOD OF THE

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