By Dave Andrusko
Photo: Des Moines Register
The Iowa Supreme Court this morning struck down a rule issued by the Iowa Board of Medicine requiring abortionists to be present and perform a physical examination on a pregnant woman prior to dispensing abortion pills. The six justices unanimously concluded this represents an “undue burden” on a woman’s right to abortion and violated both the state and federal constitutions.
The plaintiff was the mammoth Planned Parenthood of the Heartland (PPH) which has performed over 7,200 webcam abortions since 2008. As NRL News Today has reported, this first of its kind system (which proponents insist is a subset of telemedicine) is premised on the abortionist never being in the same room as the pregnant woman.
The way webcam abortions work in Iowa is that the abortionist back at a hub clinic in Des Moines teleconferences with the woman at one of the smaller satellite offices, reviews her case, and asks a couple of questions. He then clicks a mouse, remotely unlocking a drawer at her location.
In that drawer are the abortion pills which make up the two-drug abortion technique (RU-486 and a prostaglandin). She takes the RU-486 there and takes the rest of the pills home to administer to herself later.
In its September 2013 decision, the Board of Medicine required abortionists to see the women in person and perform physical examinations before dispensing abortifacients. Women were also required to do in-person follow-up visits.
That decision was upheld by Polk County District Court Judge Jeffrey Farrell, a decision PPH appealed to the Iowa Supreme Court. Last September the Iowa Supreme Court put a stay on the decision, meaning the system was always operational.
As we previously reported, during oral arguments before the Court Solicitor General Jeffery Thompson (arguing for the Iowa Board of Medicine) told the justices that the Board of Medicine’s concern was safety.
“This is a unique drug. This is not a typical pharmaceutical,” said Thompson, according to Iowa Public Radio’s Dar Danielson. Thompson explained that
“What our board of medicine did was agree with you that there needs to be a standard of care decision, frankly in the face of prior complaint for discipline against somebody that alleged they weren’t following the standard of care,” Thompson said.
“And they promulgated a standard of care that focused on safety and tried to resolve these questions, this uncertainty of safety, in favor of the woman.”
Thompson went further, citing PPH’s own study which Thompson said shows that women were not kept from getting abortions they wanted, as PPH claimed was the effect of regulating webcam abortions.
“They studied two years before they started telemed and two years after, and what it shows is there was no huge unmet need, number one,” Thompson told the court. “Patients didn’t drive shorter distances, number two. And in general, it had no real impact.”
But in its 31-page decision, the justices wrote
“The Board in its brief and in its oral argument conceded a woman has a right to terminate her pregnancy protected by the Iowa Constitution that is coextensive with the federal right. For the reasons discussed herein, we find the challenged rule fails to meet the federal undue burden test for constitutionality.”
And
“Whenever telemedicine occurs, the physician at the remote location does not perform a physical examination of the patient. It is difficult to avoid the conclusion that the Board’s medical concerns about telemedicine are selectively limited to abortion.”
But, of course, neither Board of Medicine nor anyone else ever said that abortion was not legal. What the state lawyers wrote on behalf of the board was
“Abortion-inducing drugs are not over the counter medications. Unless and until such a time when abortion-inducing drugs are no longer required to be dispensed by physicians, physicians must do so within the confines of the standard of care. The Board of Medicine determined the standard of care requires a physical examination prior to dispensing abortion-inducing drugs.”
The Court’s conclusion that the rule was, in effect, selective enforcement accepts the PPH argument that there is no distinction between the use of telemedicine to save lives and telemedicine to take lives. It also misses the whole point of having the abortionist at the same location as the woman: to make sure she has a qualified person doing her medical screening; to impress upon her the seriousness of a chemical abortion, and to establish a relationship with a physician in case she has a later medical emergency.
Women using RU-486 and a prostaglandin to abort their babies have hemorrhaged and required emergency surgery. They have had their fallopian tubes rupture from an undetected ectopic pregnancies, which these pills do not treat. They have contracted rare but deadly infections.
Thousands of women have been injured and over a dozen women have died after taking these abortifacient drugs. And those numbers are as of 2011.
These are the sort of facts the Board of Medicine considered in making its decision
The justices also wrote that non-physicians did such tasks as draw blood.
But as Dr. Randall K. O’Bannon wrote, when the Board of Medicine was considering its policy, Todd Buchacker, an RN who worked with PPH and helped to develop the web-cam protocol, gave his assurances to the Board that “the delivery system used is safe and effective and it complies with accepted standard of care in the United States.”
Buchacker and Robert Shaw, a pediatrician on the PPH board, ignited somewhat of a firestorm, though, by admitting that physical exams may be minimal and may be conducted not by doctors or nurses but by certified medical assistants (CMA).
In Iowa, CMAs may have done as little three semesters of college study, performed just a ten week practicum, and passed an exam.
Shaw was repeatedly questioned by medical board member and physician Bob Bender. Bender “asked Shaw whether he had ever relied on a certified medical assistant to perform an initial patient examination – something another Planned Parenthood representative had suggested sometimes occurred in telemedicine abortion situations,” according to the August 29 Des Moines Register.
“Shaw refused to answer the question, however, arguing that his personal medical experience was irrelevant to questions over the standard of care provided in telemedicine abortions,” The Register’s Tony Leys reported.
In other words Shaw evaded the question.