Nearly two weeks ago, the Iowa Supreme Court ruled unconstitutional the state ban on using telemedicine for abortion. The unanimous decision is the end of the line for a rule the Iowa Board of Medicine adopted in the absence of medical evidence.

Yet Governor Terry Branstad isn’t the only person reluctant to take the Iowa Supreme Court’s no, no, no, no, no, no for an answer. Tony Leys reported for the Des Moines Register on Tuesday, “The Iowa Board of Medicine has huddled three times with its lawyers since losing a key state Supreme Court case this month, but has not yet decided whether to appeal or accept the decision.”

I don’t know what’s more surprising: that after three meetings, those attorneys still haven’t persuaded board members to quit while they’re behind, or that board members who didn’t participate in making the unconstitutional rule are considering hitching their wagons to this cause.

Leys reported on June 30,

Since the justices’ [June 19] decision, medical board members have held three teleconferences with their lawyers to discuss whether to attempt an appeal. One option would be to ask the Iowa Supreme Court to rehear the case – which could be a way for the board to try to present new facts before the justices.

Good luck with that. Bleeding Heartland posted highlights from the Iowa Supreme Court’s June 19 decision here. Notably, the court found no evidence of problems with Planned Parenthood’s protocol for administering medical abortions to more than 7,000 Iowa women since 2008. Nor did they find any merit in the Iowa Board of Medicine’s claim that a doctor’s physical presence would make medical abortions safer.  

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.

Most significantly, as noted above, the Board has adopted a rule that generally approves of the use of telemedicine, recognizing the existence of “technological advances [that] have made it possible for licensees in one location to provide medical care to patients in another location with or without an intervening health care provider.” Iowa Admin. Code r. 653-13.11. The rule authorizes the use of telemedicine in accordance with “evidence-based” guidelines and standards. Id. r. 653-11(2). […] The Board appears to hold abortion to a different medical standard than other procedures.9

I can’t imagine what new evidence could be presented to change the reality: the Iowa Board of Medicine put up roadblocks for women seeking to exercise their fundamental right to an abortion, even though the board welcomes the use of telemedicine for many other medical procedures.

Back to Leys’ report:

The board’s other main appeal option would be to ask the U.S. Supreme Court to review the Iowa Supreme Court’s decision.

Don’t take it from a non-attorney, third-generation Planned Parenthood supporter like me. Listen to what the Iowa Attorney General’s Office (which argued the case on behalf of the medical board) told the Associated Press the morning the Supreme Court ruling came out:

Since the decision interprets rights under the Iowa Constitution based on application of U.S. Supreme Court rulings and federal constitutional rights, there is no federal appeal of the ruling, a spokesman for the Iowa Attorney General said.

Or, listen to conservative attorney and Branstad appointee Ryan Koopmans, who wrote at his blog about appellate court issues,

In a footnote in their appeal brief, Planned Parenthood dropped its US Constitution claim and stated that it was now, on appeal, “rely[ing] solely on the Iowa Constitution.” […]

The Iowa Supreme Court did conclude that the telemed-abortion ban violates the US Constitution (and thus violates the Iowa Constitution), but since there is no federal claim, the US Supreme Court would not have jurisdiction to hear the case. And that may have been the point of dismissing the federal claim.

There is no realistic legal path to reversing the Iowa Supreme Court’s ruling. Iowa Board of Medicine members should accept that they got this one wrong and let it go.

The Des Moines Register’s unsigned editorial on June 28 (an epic piece that should be read in full) called for the resignations of the “four remaining board members who voted to approve the administrative rule two years ago”: Dr. Hamed Tewfik of Iowa City, Diane Clark of Lake Mills, Allison Schoenfelder of Akron and Julie Carmody of Clive.

In other words, six of the ten current Iowa Board of Medicine members did not participate in the rushed decision in the summer of 2013 to adopt a rule drafted by anti-abortion activists rather than doctors.

Why would any of those six even consider appealing the Iowa Supreme Court ruling? As things stand, they aren’t implicated in putting anti-abortion ideology above peer-reviewed studies and the official policy of the American College of Obstetricians and Gynecologists. But if the board requests a rehearing from the Iowa Supreme Court or files a hopeless appeal to the U.S. Supreme Court, all of the current members will be associated with efforts to “make it more challenging for many women who wish to exercise their constitutional right to terminate a pregnancy in Iowa.”

I’ll close with an excerpt from the Des Moines Register’s editorial, “Iowans deserve medical board they can trust,” but you should click through to read the whole piece.

These individuals cannot be trusted to objectively carry out board duties. How will they handle a complaint against a physician who performs abortions or is openly pro-choice? What other tactics will they pursue to try to make it more difficult to access a legal procedure or drug because they personally disagree with it?

Gov. Terry Branstad should appoint replacements who understand the professional, non-political nature of a state board with a history dating back more than 100 years. And then all members should work to restore the public’s confidence by focusing only on patient safety. They must undo the damage done fixating on pursuing a political agenda while contaminating a larger public discussion in this state about safely using telemedicine for other health services. […]

The four board members named above were instrumental in causing that damage by advocating a ridiculously onerous administrative rule to target only three physicians working for Planned Parenthood. And the rule defied the very essence of telemedicine. It required an in-person exam be performed by the same physician who dispenses the drug – not a nurse, or physician’s assistant, or even another doctor. The physician must also be in the same room with a woman when she swallows the pill and schedule a follow-up exam later at the exact same location. […]

The board’s goal was never to protect the health of women. It was to prevent women from exercising their right to an abortion. The entire ordeal made a mockery of an important state entity that should make decisions about standards of care based on evidence, not politics.

Members who don’t understand that have no place serving on this board.

Any relevant comments are welcome in this thread.