* Brian Kempfer is a summer associate and student at the University of Michigan Law School.
In a previous post, we noted a case pending before the Iowa Supreme Court challenging an Iowa regulation that prohibited doctors from using telemedicine to prescribe “abortion-inducing drugs,” sometimes called abortifacients. Last Friday, in Planned Parenthood of the Heartland v. Iowa Board of Medicine, the Court held that the rule violated the U.S. and Iowa Constitutions. This decision has significant implications for similar restrictions on telemedicine across the country.
Since 2008, Planned Parenthood of the Heartland has used a telemedicine protocol to prescribe abortion-inducing drugs (e.g., RU486) to women in rural Iowa communities. A nurse or physician’s assistant at the rural clinic would perform a physical examination of the patient. Then the prescribing doctor would make a two-way video call to the clinic. The doctor would review relevant medical information and discuss the abortion with the patient. The doctor would decide whether there were any conditions barring the use of an abortion-inducing drug. For example, an ectopic pregnancy cannot be treated with abortion-inducing drugs. If no such condition were found, then the doctor would press a button that would unlock a drawer in the clinic, allowing the nurse or physician’s assistant to access the drug and dispense it to the patient.
In 2013, the Iowa Board of Medicine issued a regulation requiring doctors who prescribe an abortion-inducing drug to conduct an in-person physical examination and to be physically present when the drug is given to the patient. According to the regulation, an “abortion-inducing drug” is a medication that terminates a medically diagnosed pregnancy. The term does not include birth control that prevents a fertilized egg from implanting into the uterus.
Planned Parenthood of the Heartland v. Iowa Board of Medicine
The 2013 Iowa Board of Medicine regulation threatened the system that Planned Parenthood had been using to prescribe abortion-inducing drugs in rural Iowa, so it sued the Iowa Board of Medicine in Iowa state court, arguing that the Board failed to follow proper procedure when it issued the regulation and that the regulation violated the U.S. and Iowa Constitutions.
The trial court rejected all of Planned Parenthood’s arguments and upheld the regulation. Planned Parenthood appealed the decision to the Iowa Supreme Court.
While various aspects of state laws banning the use of telemedicine to prescribe abortion-inducing drugs have been challenged, the Iowa court was only the second state supreme court squarely to consider a physical presence requirement. The first, in North Dakota, upheld a physical presence requirement even though three of the court’s five justices thought the law imposed an undue burden on a woman’s constitutional right to an abortion. The North Dakota court upheld the law because its state constitution requires a four-justice supermajority to declare a law unconstitutional.
At oral argument, echoing the argument found persuasive by a majority of the North Dakota Supreme Court, Planned Parenthood argued that the Iowa regulation unduly burdened the right to an abortion because it would require women living in rural areas to travel farther for both their prescriptions and important follow-up exams. It also claimed that the personal presence of the physician was not medically necessary. The Board of Medicine responded by claiming that the physical presence requirement was necessary to ensure the safety of the woman who was taking the drug.
In a unanimous opinion, the Iowa Supreme Court ruled that the Iowa Board of Medicine’s regulation was unconstitutional under the Iowa and U.S. Constitutions. Declining to reach Planned Parenthood’s procedural challenge, the Iowa Supreme Court found that requiring the doctor’s physical presence would impose an “undue burden” on the right of woman to obtain an abortion. This “undue burden” test was proposed by a plurality of the U.S. Supreme Court in the 1992 case of Parenthood of Southeastern Pennsylvania v. Casey.
Implications for State Laws Banning Telemedicine for Abortion-Inducing Drugs
At least 16 states other than Iowa have similar laws either forbidding the use of telemedicine to prescribe abortion-inducing drugs by requiring the prescribing physician to be physically present at some stage of the diagnosis and prescription of the drug. These states include Alabama, Arizona, Arkansas, Idaho, Indiana, Kansas, Louisiana, Michigan, Missouri, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, and Wisconsin.
Iowa is the first state supreme court to find a physical presence law unconstitutional. Since the decision relied in part on federal constitutional law, it can and likely will lead to challenges to other states’ bans on prescription of abortion-inducing drugs via telemedicine. Such challenges will be strengthened by the Iowa Supreme Court’s conclusion that there was no evidence that the physical presence of a doctor is medically necessary.