Two months after the Iowa Supreme Court unanimously ruled unconstitutional a proposed state ban on using telemedicine for abortions, the Iowa Board of Medicine and Governor Terry Branstad are at last ready to accept the court ruling as the final word on the subject.
Board of Medicine chairman Hamed Tewfik told the Des Moines Register’s Tony Leys last week,
“It is a complicated process. It’s not worth the time. It’s not worth the effort,” Tewfik said. “Realistically it is hard to go to the U.S. Supreme Court. They might not accept it even. Chances are very, very little. They’re probably zero.”
Staff from the Iowa Attorney General’s office could have told the board members as much the day the telemed ruling came out. Conservative Des Moines-based attorney Ryan Koopmans, who blogs about appellate courts, also concluded quickly that the Iowa high court’s abortion ruling could not be appealed. But Board of Medicine members and Governor Terry Branstad refused to concede the point.
Leys reported on August 28,
Branstad spokesman Jimmy Centers said Friday that the governor remains “extremely disappointed” by the Iowa Supreme Court’s ruling. However, he said, “the decision to appeal was one that was made by the Iowa Board of Medicine and the governor respects their decision,” Centers wrote in an email to the Register.
Are you ready for the punch line? Less than two weeks after being “extremely disappointed” by the Iowa Supreme Court’s ruling, Branstad signed into law Senate File 505, the health and human services budget for the current fiscal year, which contains the following passage (pages 32 and 33):
The department of human services shall adopt rules to provide for coverage of telehealth under the Medicaid program. The rules shall provide that in-person contact between a health care professional and a patient is not required as a prerequisite for payment for services appropriately provided through telehealth in accordance with generally accepted health care practices and standards prevailing in the applicable professional community at the time the services are provided. Health care services provided through in-person consultations or through telehealth shall be treated as equivalent services for the purposes of reimbursement.
In other words, Iowa lawmakers instructed Medicaid to view interactions with doctors via telemedicine as “equivalent” to an in-person doctor’s visit.
Branstad allowed the telehealth language to take effect, even though he item-vetoed 30 sections of Senate File 505. Yet he can’t acknowledge how that logic matches the Iowa Supreme Court’s reasoning on the telemed abortion ban. From pages 30 and 31 of the court ruling in Planned Parenthood of the Heartland v Iowa Board of Medicine:
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
When I sought comment from the governor’s office on how Branstad reconciles his support for telehealth language in Senate File 505 with his opposition to using telemedicine for abortions, I got the same reply I’d already received:
The governor believes, as did the medical professionals from across Iowa that [sic] petitioned the Iowa Board of Medicine, that women undergoing a procedure of this magnitude deserve a high quality of care.
The Iowa Board of Medicine should never have voted to ban telemedicine abortions. They rushed to adopt a rule drafted by anti-abortion activists in the absence of any evidence pointing to safety problems with dispensing mifepristone remotely. In fact, restricting Iowa women’s access to early medical abortions would likely have increased the number of surgical abortions later in pregnancy, with greater risk to women’s health.
Board members took their time before accepting the Iowa Supreme Court’s verdict on their unconstitutional rule. Better late than never.
UPDATE: Radio Iowa’s O.Kay Henderson got a comment directly from Branstad:
“I was very disappointed with the Supreme Court’s decision, siding with Planned Parenthood,” Branstad says. “But unfortunately it does not look like something that is likely to be overturned on appeal.”
I hope others will press the governor on why he favors telemedicine generally but not in connection with one medical procedure.