IN THE SUPREME COURT OF IOWA

No. 14–1415

Filed June 19, 2015

PLANNED PARENTHOOD OF THE HEARTLAND, INC. and 

JILL MEADOWS,

Appellants,

vs.

IOWA BOARD OF MEDICINE,

Appellee.

Appeal from the Iowa District Court for Polk County, Jeffrey D. 

Farrell, Judge.

Providers appeal a district court judgment upholding a rule by the 

Iowa Board of Medicine establishing standards of practice for physicians 

who prescribe or administer abortion-inducing drugs. AFFIRMED IN 

PART AND REVERSED IN PART.

Alice Clapman of Planned Parenthood Federation of America, 

Washington, D.C., Sharon K. Malheiro of Davis, Brown, Koehn, Shors & 

Roberts, P.C., Des Moines, and Roger Evans of Planned Parenthood 

Federation of America, New York, New York, for appellant. 

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor 

General, and Julie J. Bussanmas and Meghan L. Gavin, Assistant 

Attorneys General, for appellee. 
2

Paige Fiedler of Fiedler & Timmer, P.L.L.C., Urbandale, and 

Holly A. Harrison, Lynn D. Fleisher, Ph.D., Patrick E. Croke, Daniel C. 

Craig, and Andrew Chinsky of Sidley Austin LLP, Chicago, Illinois, for 

amicus curiae American College of Obstetricians and Gynecologists. 

Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., 

Des Moines, for amici curiae Iowa Coalition Against Sexual Assault, Iowa 

Coalition Against Domestic Violence, and National Women’s Law Center. 

Joe Austen of Austen Law Office, PLLC, West Des Moines, and Rita 

Bettis of ACLU of Iowa, Des Moines, for amicus curiae American Civil 

Liberties Union of Iowa. 

Mailee R. Smith of Americans United for Life, Washington, D.C., 

and Arthur F. Gilloon of Gilloon, Wright & Hamel PC, Dubuque, for amici 

curiae Physicians for Life, National Association of Pro Life Nurses, 

Christian Medical Association, National Association of Catholic Nurses, 

and The National Catholic Bioethics Center. 

Timm Reid of Galligan & Reid, P.C., Des Moines, and Michael J. 

Norton and Natalie L. Decker of Alliance Defending Freedom, Greenwood 

Village, Colorado, for amici curiae American Association of Pro-Life 

Obstetricians & Gynecologists, Donna Harrison, M.D., Iowa Right to Life, 

and Susan Thayer.

Matthew F. Heffron and Christine F. Delgado of Brown & Brown, 

P.C., L.L.O., Omaha, Nebraska, Patrick D. Smith of Bradshaw, Fowler, 

Proctor & Fairgrave, P.C., Des Moines, and Thomas Brejcha of Thomas 

More Society, Chicago, Illinois, for amici curiae Catholic Medical 

Association, Catholic Medical Association—Des Moines Guild, Catholic 

Medical Association—St. Thomas Aquinas Guild of the Quad Cities, 

Iowans for Life, and Women’s Choice Center of the Quad Cities.
3

WIGGINS, Justice.

In 2013, the Iowa Board of Medicine passed a rule establishing 

standards of practice for physicians who prescribe or administer 

abortion-inducing drugs. These standards require the physician to 

personally perform a physical examination and to be physically present 

when the abortion-inducing drug is provided. It is not disputed the rule

would have the effect of prohibiting telemedicine abortions in Iowa.

Planned Parenthood of the Heartland, Inc. and Dr. Jill Meadows, 

M.D. (collectively Planned Parenthood) challenge the rule as both 

improperly enacted and violative of the Iowa Constitution. For purposes 

of this appeal, we will assume the Board properly enacted the rule and 

did not violate any of the procedural or rulemaking provisions of Iowa 

Code chapter 17A (2013), other than Planned Parenthood’s claim the rule 

violates section 17A.19(10)(a), which provides an agency’s action is 

invalid when “substantial rights of the person seeking relief have been 

prejudiced” and the action is “[u]nconstitutional on its face or as 

applied.” Iowa Code § 17A.19(10)(a). We will therefore focus on the 

constitutional question. 

The Board has conceded the Iowa Constitution provides a right to 

an abortion that is coextensive with the right available under the United 

States Constitution. Planned Parenthood argues the Iowa Constitution 

affords a broader right, and we should therefore apply a strict scrutiny 

analysis under the Iowa Constitution to the rule. We need not resolve 

this question because we conclude, for the reasons stated herein, that 

the Board’s rule violates the controlling “undue burden” test announced 

by the United States Supreme Court as the federal constitutional test. 

See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878–79, 112 

S. Ct. 2791, 2821, 120 L. Ed. 2d 674, 715–16 (1992) (plurality opinion)
4

and Gonzales v. Carhart, 550 U.S. 124, 146, 158, 127 S. Ct. 1610, 1626–

27, 1633, 167 L. Ed. 2d 480, 502, 509–10 (2007). Thus, the contested 

rule violates the Iowa Constitution under the less stringent Iowa 

constitutional standard advanced by the Board. We therefore reverse the 

decision of the district court as to the contested portions of the rule.

I. Background Facts and Proceedings.

On our de novo review, we find the following facts.

A. Medication Abortions. In 2000, the United States Food and 

Drug Administration (FDA) approved the distribution and use of 

mifepristone in the United States. Mifepristone, also known as RU–486, 

is a prescription drug that terminates a pregnancy by detaching the 

gestational sac from the uterine wall. In the clinical trials, the woman 

returned two to four days later and took a second medication, 

misoprostol, which induced contractions to complete the medication 

abortion.

Consistent with the clinical trial documents submitted in support 

of the application for approval of the drug, the FDA label indicated the 

appropriate treatment regimen was to administer 600 mg of mifepristone 

orally, followed two days later by 0.4 mg of misoprostol administered 

orally. Additionally, the label indicated the patient should take the 

mifepristone within the first seven weeks of pregnancy. 

Once the FDA approves a drug, the FDA does not prohibit 

physicians from using the drug in a different manner than the label 

provides—otherwise known as “off-label” use. See U.S. Food & Drug 

Admin., “Off-Label” and Investigational Use of Marketed Drugs, Biologics, 

and Medical Devices–Information Sheet, available at

www.fda.gov/regulatoryinformation/guidances/ucm126486. Off-label 
5

use means the safety and effectiveness of the dosing regimen has not 

been established by the FDA.

Following FDA approval, additional studies led to the development 

of new protocols for administering these drugs. The new off-label method 

changed the dosage amounts of the drugs, lowering the amount of 

mifepristone from 600 mg to 200 mg and increasing the amount of 

misoprostol from 0.4 mg to 0.8 mg. The new method also changed the 

administration of misoprostol from oral ingestion to buccally—placing 

the pill between the cheeks and gums. The studies also showed this 

method was safe and effective for use within the first nine weeks of 

pregnancy. The American College of Obstetricians and Gynecologists 

(ACOG) accepts and approves of this off–label protocol as the standard of 

care to administer these drugs.

Since 2008, the medication abortions performed by Planned 

Parenthood in Iowa have involved 200 mg of mifepristone administered 

orally, followed one to four days later by 0.8 mg of misoprostol taken 

buccally. The clinic then instructs the patient to return to the clinic 

within two weeks after taking the misoprostol for a follow-up 

appointment. Planned Parenthood utilizes the same procedures for 

medication abortions if the patient is physically present in the doctor’s 

clinic or if the procedure is being performed utilizing telemedicine. 

Telemedicine is a method of practicing medicine in which the 

physician is at one geographical location, the patient is at a different 

geographical location, and the two communicate through a secure 

electrical audio-visual connection that complies with the privacy 

requirements of the Health Insurance Portability and Accountability Act 

(HIPAA). In Iowa, physicians and hospitals deliver a variety of health 

care and education services to Iowans living in rural communities 
6

through telemedicine. The Board has adopted a rule effective June 3, 

2015, regarding the use of telemedicine by Iowa physicians. The 

regulations make the following findings:

1. The board recognizes that technological advances 

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.

2. Telemedicine is a useful tool that, if applied 

appropriately, can provide important benefits to patients, 

including increased access to health care, expanded 

utilization of specialty expertise, rapid availability of patient 

records, and potential cost savings.

3. The board advises that licensees using telemedicine 

will be held to the same standards of care and professional 

ethics as licensees using traditional in-person medical care.

Iowa Admin. Code r. 653—13.11. 

The regulations also state that “[a] licensee who uses telemedicine 

shall utilize evidence-based telemedicine practice guidelines and 

standards of practice, to the degree they are available, to ensure patient 

safety, quality of care, and positive outcomes.” Id. r. 653—13.11(2). The 

regulations further require the licensee to perform “a physical 

examination, when medically necessary, sufficient for the diagnosis and 

treatment of the patient.” Id. r. 653—13.11(8). They identify nine 

separate situations in which the licensee need not personally interview, 

examine, or diagnose the patient, including when “the patient has been 

examined in person by an advanced registered nurse practitioner or 

physician assistant or other licensed practitioner with whom the licensee 

has a supervisory or collaborative relationship.” Id. r. 653—13.11(20)(e).

Planned Parenthood has been utilizing telemedicine to perform 

medication abortions in Iowa since 2008.1 At all Planned Parenthood 

1Iowa was the first state in which telemedicine abortions were widely performed.

 
7

locations in Iowa, a trained staff member takes a medical history from 

the patient, checks the patient’s vital signs, and gathers the patient’s 

blood for tests to check for any medical reasons the woman should not 

undergo a medication abortion. 

A trained staff member then performs an ultrasound on the 

woman to check for an ectopic pregnancy and obtain the gestational age 

of the pregnancy. An ectopic pregnancy occurs when the fertilized egg is 

implanted somewhere other than the uterus. An ectopic pregnancy is a 

contraindication for a medication abortion because the drug regimen 

does not work when the fertilized egg is not located in the uterus. Thus, 

the doctor uses the ultrasound images to determine if the gestational sac 

containing the fertilized egg implanted somewhere other than inside the 

uterus. The ultrasound machine also estimates gestational age. 

Prior to administering the mifepristone, the physician reviews the 

lab results, the ultrasound images, and medical history provided by the 

patient. After the physician determines there is no medical reason the 

woman cannot proceed with the procedure, the patient and physician 

speak to each other. Whether the physician is present in person or 

communicating remotely through telemedicine, the physician does not 

personally perform a physical exam on the patient. The standard of care 

developed by ACOG is that a physical examination by the physician 

before proceeding with a medical termination of a pregnancy is medically 

unnecessary. 

Next, the physician informs the patient about the medication 

regime, potential complications, what to expect after ingesting the 

misoprostol, and answers questions the patient may have. After 

receiving informed consent from the patient that she wishes to go 
8

forward with the termination, the doctor provides the medications to the 

patient. 

In telemedicine administration, the patient–physician 

communication occurs over a real-time two-way HIPAA secured 

teleconference audio-visual connection with a staff person in the room 

with the patient and the physician at a different clinical location. After 

receiving informed consent, the physician remotely releases a secure 

drawer containing the medications located in the patient’s room. 

Regardless of whether the physician dispenses the medications in 

person or by telemedicine, both the physician and the staff member 

watch the patient take the mifepristone (in the telemedicine situation, 

the physician watches over the two-way video). The clinic schedules a 

follow-up visit within two weeks. The woman then goes home, or to a 

location of her choosing, and takes the misoprostol twenty-four to fortyeight hours later. 

The woman also receives a toll-free number that she may call to 

speak with medical staff or the physician regarding any complications or 

questions, as the actual uterine evacuation occurs while the woman is at 

home regardless of the location of the initial appointment. In the 

relatively uncommon case in which the physician feels the patient needs 

emergency care, the doctor refers the woman to the nearest hospital 

emergency room. 

B. Administrative Proceedings. On June 25, 2013, the Board 

received a petition for rulemaking regarding the standards of practice for 

telemedicine medication abortions. The petition proposed the following 

rule:
9

653-13.10 – Standards of practice – chemical 

abortion. 

This rule establishes the standards of practice for a 

physician or osteopathic physician who induces an abortion 

by an abortion-inducing drug.

13.10(1). Definition. As used in this rule, “abortioninducing drug” means a drug, medicine, mixture, or 

preparation, when it is prescribed or administered with the 

intent to terminate the pregnancy of a woman known to be 

pregnant. 

13.10(2). Physical Examination Required. A physician 

shall not induce an abortion by providing an abortioninducing drug unless the physician has first performed a 

physical examination of the woman to determine, and 

document in the woman’s medical record, the gestational age 

and intrauterine location of the pregnancy.

13.10(3). Physical Presence Required. When inducing 

an abortion by providing an abortion-inducing drug, a 

physician must be physically present with the woman at the 

time the abortion-inducing drug is provided.

13.10(4). Follow-Up Appointment Required. If an 

abortion is induced by an abortion-inducing drug, the 

physician inducing the abortion must schedule a follow-up 

visit with the woman at the same facility where the abortioninducing drug was provided, 12 to 18 days after the use of 

an abortion-inducing drug to confirm the termination of the 

pregnancy and evaluate the woman’s medical condition. The 

physician shall use all reasonable efforts to ensure that the 

woman is aware of the follow-up appointment and that she 

returns for the appointment. 

13.10(5). Parental Notification regarding Pregnant 

Minors. A physician shall not induce an abortion by 

providing an abortion-inducing drug to a pregnant minor 

prior to compliance with the requirements of chapter 135L of 

the Iowa Code and Rules 641-89.12 and 641-89.21 adopted 

by the Public Health Department. 

On June 28, the Board held a public meeting and discussed the 

proposed rule. Three members of the public spoke at the meeting, Daniel 

McConchie, Vice President of Government Affairs for Americans United 

for Life, spoke in favor of the rule; Tom Ross, M.D., a doctor at Planned 
10

Parenthood, spoke against the rule; and Kelly Larson, a registered nurse 

at InnerVisions HealthCare, spoke in favor of the rule. After hearing the 

public comments, board member Allison Schoenfelder, M.D., moved to 

accept the petition and begin the rulemaking process. The Board voted 

eight to two to accept the petition.

The Board held a public hearing on the proposed rule on 

August 28, and the public had thirty-five days to submit written 

comments on the proposed rule. The Board heard testimony from 

twenty-eight individuals at the public hearing and received 244 written 

comments from both individuals and organizations. The Board heard 

from many doctors both for and against the rule. 

Dr. Sean Kenney, a practicing obstetrician and gynecologist from 

Lincoln, Nebraska, spoke in favor of the rule. Dr. Daniel Grossman, an 

obstetrician and gynecologist from Oakland, California, spoke against the 

rule. The Board also received public comment from the Iowa Medical 

Society and the Iowa Osteopathic Medical Association, both of which 

expressed concern regarding the procedures used to implement the rule 

and opposed the rule itself. Other physicians also testified the Planned 

Parenthood clinics follow the standard of care used for medication 

abortions, whether the physician performs the procedure at an in-clinic 

visit or by telemedicine.

On August 30, the Board held a meeting to determine whether it 

should adopt the rule. The Board passed the rule, again with an eight to 

two vote. The Board announced it would publish the adopted rule on 

October 2, and it would become effective November 6. 

On September 27, the Board issued a statement regarding the 

adoption and filing of the rule. The Board listed its principal reasons in 

support of the rule as follows:
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1. To protect the health and safety of patients, 

standards of practice are needed for physicians who 

prescribe and administer abortion-inducing drugs to 

terminate a pregnancy. 

2. The practices used by physicians who prescribe and 

administer abortion-inducing drugs using telemedicine 

are inconsistent with the protocols approved by the U.S. 

Food and Drug Administration (FDA) and the 

manufacturer of the drugs. 

3. Iowa Code Section 707.7(3) only allows physicians to 

perform abortions in Iowa. 

4. A physical examination of the patient in telemedicine 

settings is not being performed by the physician who 

prescribes and administers the abortion-inducing drugs, 

but is delegated to non-physician persons who do not 

have appropriate training to confirm or discover 

contraindications or to perform an ultrasound to 

determine the age and location of the embryo. 

5. Physicians who prescribe and administer abortioninducing drugs using telemedicine may never meet with 

the patient in person and may never see the patient 

again for a follow-up appointment. 

The Board also provided its reasons for overruling the objections to 

the rule.

1. The rule would limit rural Iowa women’s access to 

medical abortions. The new rule does not restrict where 

medical abortion services may be provided. The emphasis of 

the rule is on the patient’s health and safety and the 

responsibility of physicians who perform medical abortions. 

The Board believes that all Iowans are entitled to the same 

high level of health care, regardless of whether they live in 

rural or urban areas. The Board believes that the physician’s 

decision that the patient should have a medical or surgical 

abortion should depend on multiple factors including patient 

preference, medical and psychological status of the patient, 

and the patient’s access to emergency medical services.

2. The rule is politically motivated and is not sound 

public policy. While issues such as abortion have been 

politicized, the Board does not have authority to react 

politically to any issue. The Board is only authorized to adopt 

all necessary and proper rules for the licensure and 
12

standards of practice for health care providers licensed 

pursuant to Iowa Code Chapters 148 (physicians) and 148E 

(acupuncturists). The Board is motivated to adopt this 

administrative rule by its mandate to protect the health and 

safety of Iowans.

3. The rule is an attempt to ban access to a procedure 

that is legal. It deprives Iowa women of their 

constitutionally protected right to obtain a pre-viability 

abortion. Abortion is legal in Iowa and the goal of the new 

rule is to protect the health and safety of patients who seek 

medical abortions. Federal court decisions have set the 

guidelines for the availability of abortion. Nothing in the rule 

bans medical abortion. Rather, the rule sets forth the 

standards of practice that must be followed by physicians 

who perform medical abortions.

4. The Board previously addressed this matter in 2010 

when it reviewed Planned Parenthood of the Heartland’s 

medical abortion services using telemedicine and 

concluded they were safe. The membership of the Board 

has changed completely over the past three years. The Board 

has not previously promulgated any rules addressing medical 

abortion services using telemedicine. This is the first 

rulemaking proceeding which has given licensed physicians 

and the public an opportunity to comment on the use of 

telemedicine in this context. Because there was no rule in 

place addressing this particular procedure, the Board 

determined a rule was necessary to protect the health and 

safety of Iowans.

5. The Board promulgated rulemaking without a 

thorough study or analysis of the matter under 

regulatory consideration and the Board did not take into 

consideration the impact the rule may potentially have 

on expectations and requirements for telemedicine 

delivery of other medical services. After accepting a 

petition on June 28, 2013, to promulgate rulemaking on the 

standards of practice for physicians who perform medical 

abortions, Board members studied the matter and reviewed 

medical research papers and a significant amount of public 

comments received on a broad spectrum of issues regarding 

medical abortions. The Board determined that the new rule is 

narrowly focused on the standards of practice for physicians 

who perform medical abortions. The Board may determine in 

the future to more broadly address the standards of practice 

for other medical services using telemedicine.
13

6. An appropriate physical examination, including an 

ultrasound to determine age and location of the embryo, 

is performed by appropriately trained staff in the 

telemedicine setting and this information is provided to 

an off-site physician who remotely prescribes and 

administers the abortion-inducing drugs. The Board 

considers a thorough medical history and physical 

examination to be the cornerstone of good medical care. On 

this foundation an accurate diagnosis can be made and the 

most appropriate treatment plan offered to the patient. The 

Board is concerned about the quality and sufficiency of the 

physical examination being performed prior to a medical 

abortion. The first area of concern is the lack of opportunity 

for a physician to perform a basic physical examination of the 

patient to screen for conditions that would be 

contraindications to medical abortion. The drugs used in a 

medical abortion are mifepristone and misoprostol. As listed 

in the FDA literature the contraindications to these 

medications include “confirmed or suspected ectopic 

pregnancy or undiagnosed adnexal mass; an intrauterine 

device (IUD) in place; chronic adrenal failure; concurrent longterm corticosteroid therapy; history of allergy to mifepristone, 

misoprostol, or other prostaglandins; hemorrhagic disorders or 

concurrent anticoagulant therapy; and inherited porphyrias.” 

As stated in the FDA literature on abortion-inducing drugs, 

“There are no data on the safety and efficacy of mifepristone 

in women with chronic medical conditions such as 

cardiovascular, hypertensive, hepatic, respiratory, or renal 

disease; insulin-dependent diabetes mellitus; severe anemia 

or heavy smoking. Women who are more than 35 years of 

age and who also smoke 10 or more cigarettes per day should 

be treated with caution because such patients were generally 

excluded from clinical trials of mifepristone.” The Board 

believes that a basic physical examination of a patient is 

necessary to exclude this narrower list of contraindications 

and essential to exclude the list of exclusionary conditions 

that were not part of the clinical studies. The second area of 

concern is the quality of the ultrasound that is being 

performed prior to a medical abortion. Without the option of a 

clinical pelvic examination of the patient to confirm dating of 

the embryo, these remote clinics are relying primarily on 

ultrasound to date the embryo and rule out ectopic pregnancy, 

which occurs when an embryo implants somewhere other 

than the uterus. The Board is concerned about the 

uncertainty of whether clinic staff members providing the 

ultrasounds are actually qualified to produce useful images to 

sufficiently rely upon for diagnostic purposes. If an ectopic 

pregnancy was missed the medications may not expel the 
14

embryo and may lead to delayed diagnosis and treatment of 

this dangerous condition. In the FDA reports of deaths from 

mifepristone and misoprostol two of the 14 deaths were 

related to ruptured ectopic pregnancies, and 58 other women 

suffered morbidity from failed diagnosis of ectopic pregnancy. 

The Board believes that a basic physical examination for 

every patient will help to exclude the conditions that are 

contraindications to the medications. The Board believes that 

a pelvic examination may be necessary in some cases to 

correlate with ultrasound findings and should be available to 

all women presenting for a medical abortion. The Board 

believes that adequate ultrasound services and interpretation 

are necessary if a clinical pelvic examination is not being used 

to date the embryo. For all these reasons the Board believes 

that a physician should be present to conduct this physical 

examination before proceeding with a medical abortion.

7. The treatment and consultation recommendations

made by the physician in the telemedicine setting are 

the same standards of appropriate practice as those in 

face-to-face settings. The physician does not have to be 

present to perform a medical abortion. Iowa Code section 

707.7(3) requires that abortions in Iowa be performed by 

physicians. The Board believes that the prescribing physician 

must be physically present with the patient to administer the 

abortion-inducing drug. This physician-patient relationship is 

fundamental to the provision of a safe medical abortion. It is 

the expectation of the Board that physicians recognize the 

obligations, responsibilities and patient rights associated with 

establishing and maintaining an appropriate physician-patient 

relationship in the specific context of prescribing and 

administering abortion-inducing drugs.

8. Patients are already receiving appropriate follow-up 

care to their medical abortions in remote clinics where a 

physician is not physically present. The Board believes 

that follow-up care of the patient is critical after providing a 

medical abortion. The new rule requires the physician who 

prescribes and performs a medical abortion to make all 

reasonable efforts to ensure that the patient is aware of the 

importance of follow-up care and that she returns for an 

appointment with the prescribing physician. The Board 

believes that the physician’s in-person interview to collect the 

patient’s medical history and an in-person physical 

examination will strengthen the physician-patient relationship 

and result in improved and increased follow-up care of the 

patient. 
15

The final rule adopted by the Board reads:

653—13.10 Standards of practice–physicians who 

prescribe or administer abortion-inducing drugs. 

13.10(1) Definition. As used in this rule: 

“Abortion-inducing drug” means a drug, medicine, 

mixture, or preparation, when it is prescribed or 

administered with the intent to terminate the pregnancy of a 

woman known to be pregnant. 

13.10(2) Physical examination required. A physician 

shall not induce an abortion by providing an abortioninducing drug unless the physician has first performed a 

physical examination of the woman to determine, and 

document in the woman’s medical record, the gestational age 

and intrauterine location of the pregnancy. 

13.10(3) Physician’s physical presence required. When 

inducing an abortion by providing an abortion-inducing 

drug, a physician must be physically present with the 

woman at the time the abortion-inducing drug is provided. 

13.10(4) Follow-up appointment required. If an 

abortion is induced by an abortion-inducing drug, the 

physician inducing the abortion must schedule a follow-up 

appointment with the woman at the same facility where the 

abortion-inducing drug was provided, 12 to 18 days after the 

woman’s use of an abortion-inducing drug to confirm the 

termination of the pregnancy and evaluate the woman’s 

medical condition. The physician shall use all reasonable 

efforts to ensure that the woman is aware of the follow-up 

appointment and that she returns for the appointment. 

13.10(5) Parental notification regarding pregnant 

minors. A physician shall not induce an abortion by 

providing an abortion-inducing drug to a pregnant minor 

prior to compliance with the requirements of Iowa Code 

chapter 135L and rules 641—89.12(135L) and 641—

89.21(135L) adopted by the public health department. 

Iowa Admin. Code r. 653—13.10.

C. District Court Proceedings. On September 30, Planned 

Parenthood filed a petition for judicial review and a motion to stay the 

enforcement of the rule. The district court granted Planned Parenthood’s 
16

motion to stay the enforcement of the rule pending its ruling. On 

August 18, 2014, the district court denied Planned Parenthood’s claims 

and upheld the rule addressing each of Planned Parenthood’s challenges.

Planned Parenthood appealed and asked us to stay the 

enforcement of the rule pending the resolution of its appeal. We entered 

a stay and retained the appeal. 

II. Issues.

Planned Parenthood raised a number of issues before the district 

court challenging both the rulemaking process and the constitutionality 

of the rule. For purposes of this appeal, we will assume the Board 

properly enacted the rule and did not violate any of the procedural or 

rulemaking provisions of Iowa Code chapter 17A other than Planned 

Parenthood’s claim the rule is unconstitutional and violates Iowa Code 

section 17A.19(10)(a). Under the Code, we can provide appropriate relief 

when the agency action is “[u]nconstitutional on its face or as applied or 

is based upon a provision of law that is unconstitutional on its face or as 

applied.” Iowa Code § 17A.19(10)(a).

Planned Parenthood did not challenge the ruling regarding 

provisions (1) and (5) of rule 653—13.10. Therefore, we will affirm the 

district court judgment regarding rule 653—13.10(1) and 13.10(5).

III. Standard of Review.

We review Planned Parenthood’s constitutional claims de novo. 

Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 344 (Iowa 2013).

IV. Analysis.

A. The Right of a Woman to an Abortion Under the Iowa 

Constitution. On appeal, Planned Parenthood asks us to declare the 

rule unconstitutional under the Iowa Constitution. We have yet to 

determine if the Iowa Constitution protects a woman’s right to terminate 
17

her pregnancy. Over forty years ago, the United States Supreme Court 

recognized a woman has a constitutionally protected liberty interest in 

the decision to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 153–

54, 93 S. Ct. 705, 727, 35 L. Ed. 2d 147, 177–78 (1973). The Supreme 

Court reaffirmed the “constitutional liberty of the woman to have some 

freedom to terminate her pregnancy” in 1992. Casey, 505 U.S. at 869, 

112 S. Ct. at 2816, 120 L. Ed. 2d at 709.

Many states considering this issue under their state constitutions 

have found their state constitutions provide such a right. See, e.g.,

Valley Hosp. Ass’n, Inc. v. Mat-Su Coal. for Choice, 948 P.2d 963, 967–69 

(Alaska 1997); Comm. to Defend Reprod. Rights v. Myers, 625 P.2d 779, 

784 (Cal. 1981); In re T.W., 551 So. 2d 1186, 1192–93 (Fla. 1989); Hope 

Clinic for Women, Ltd. v. Flores, 991 N.E.2d 745, 760 (Ill. 2013); Moe v. 

Sec’y of Admin. & Fin., 417 N.E.2d 387, 398–99 (Mass. 1981); Women of 

the State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 27 (Minn. 1995); ProChoice Miss. v. Fordice, 716 So. 2d 645, 653 (Miss. 1998); Reprod. Health 

Servs. of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 185 

S.W.3d 685, 692 (Mo. 2006) (en banc) (per curiam); Armstrong v. State, 

989 P.2d 364, 374–75 (Mont. 1999); Hope v. Perales, 634 N.E.2d 183, 

186 (N.Y. 1994); Planned Parenthood of Middle Tenn. v. Sundquist, 38 

S.W.3d 1, 15 (Tenn. 2000). But cf. Taylor v. Kurapati, 600 N.W.2d 670, 

687 (Mich. Ct. App. 1999) (“This Court has held that the Michigan 

Constitution does not provide a right to end a pregnancy.”); Mahaffey v. 

Att’y Gen., 564 N.W.2d 104, 111 (Mich. Ct. App. 1997) (“We merely hold 

that the Michigan Constitution does not guarantee a right to abortion 

that is separate and distinct from the federal right.”); MKB Mgmt. Corp. v. 

Burdick, 855 N.W.2d 31, 31–32, 52, 64, 89, 91, 98 (N.D. 2014) (per 

curiam) (upholding the constitutionality of amendments to the state 
18

abortion control act that limited medication abortions where two justices 

determined the law violated the North Dakota Constitution, two justices 

concluded the law did not violate the state constitution, three justices 

determined the statute violated the Federal Constitution, one justice 

concluded the law did not violate the Federal Constitution, and one 

justice concluded the federal constitutional issue was not properly before 

the court because there was not a sufficient majority of the court that 

agreed the law was unconstitutional). However, in this case, we need not 

decide whether the Iowa Constitution provides such a right, and if so, 

whether regulations affecting that right must pass strict scrutiny.2 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.3 For the reasons discussed herein, we 

2As previously noted, Planned Parenthood urges that the Iowa Constitution 

provides greater protection than the Federal Constitution for a woman’s right to 

terminate her pregnancy. It urges us to adopt a strict scrutiny standard under the Iowa 

Constitution. Several state courts have previously reached this conclusion. See Valley 

Hosp. Ass’n, 948 P.2d at 968–69 (applying a strict scrutiny analysis to abortion 

regulations under its state constitution while noting that Alaska’s constitution has a 

privacy provision and “provides more protection of individual privacy rights than the 

United States Constitution”); In re T.W., 551 So. 2d at 1191, 1195–96 (applying a strict 

scrutiny analysis under the Florida Constitution, which provides that “[e]very natural 

person has the right to be let alone and free from governmental intrusion into his 

private life except as otherwise provided herein”); Women of the State of Minn., 542 

N.W.2d at 31 (applying strict scrutiny under the Minnesota Constitution which has no 

separate privacy provision); Armstrong, 989 P.2d at 372, 373–74 (applying strict 

scrutiny under the Montana Constitution which provides that “[t]he right of individual 

privacy is essential to the well-being of a free society and shall not be infringed without 

the showing of a compelling state interest”); Planned Parenthood of Middle Tenn., 38 

S.W.3d at 14–15 (applying strict scrutiny under the Tennessee Constitution which has 

no separate privacy provision). Other courts have found a state constitutional right 

that is coextensive with the federal right. See, e.g., Hope Clinic, 991 N.E.2d at 760; 

Reprod. Health Servs., 185 S.W.3d at 692 (“There is no reason, within the context of this 

case, to construe this language from the Missouri constitution more broadly than the 

language used in the United States constitution.”); Pro-Choice Miss., 716 So. 2d at 655. 

3In its brief, the Board asserts, “[T]his Court should adopt [under the Iowa 

Constitution] the undue burden standard set forth in Casey.”

 
19

find the challenged rule fails to meet the federal undue burden test for 

constitutionality. 

B. The Federal Undue Burden Test. In a plurality decision, the 

Supreme Court developed the undue burden test to reconcile the state’s 

interest with the constitutionally protected interest of the woman. 

Casey, 505 U.S. at 876–80, 112 S. Ct. at 2820–22, 120 L. Ed. 2d at 714–

17. Generally, under the undue burden test for a state regulation to 

place an undue burden on a woman’s right to terminate a pregnancy, the 

state regulation must have “the purpose or effect of placing a substantial 

obstacle in the path of a woman seeking an abortion of a nonviable 

fetus.” Id. at 877, 112 S. Ct. at 2820, 120 L. Ed. 2d at 714. 

In adopting the test, the Supreme Court recognized that even 

though a woman has a liberty interest in deciding whether to terminate a

pregnancy, the right to do so is limited. Id. at 869, 112 S. Ct. at 2816, 

120 L. Ed. 2d at 709–10. The limitation imposed by the Supreme Court 

is the state’s “important and legitimate interests in preserving and in 

protecting the health of the pregnant woman” and “in protecting the 

potentiality of human life.” Roe, 410 U.S. at 162, 93 S. Ct. at 731, 35 L. 

Ed. 2d at 182. The Court balanced a woman’s right to terminate her 

pregnancy against the legitimate interests of the state by developing the 

undue burden test. Casey, 505 U.S. at 876, 112 S. Ct. at 2820, 120 

L. Ed. 2d at 714.

In the most recent case, Gonzales v. Carhart, the Court—

considering a ban on late term abortions—stated the undue burden test 

as 

[w]here it has a rational basis to act, and it does not impose 

an undue burden, the State may use its regulatory power to 

bar certain procedures and substitute others, all in the 

furtherance of its legitimate interests in regulating the 
20

medical profession in order to promote respect for life, 

including life of the unborn.

Carhart, 550 U.S. at 158, 127 S. Ct. at 1633, 167 L. Ed. 2d at 509–10. 

The Court applies the undue burden test differently depending on 

the state’s interest advanced by a statute or regulation. If the state’s 

interest is to advance fetal life, “[a]n undue burden exists, and therefore 

a provision of law is invalid, if its purpose or effect is to place a 

substantial obstacle in the path of a woman seeking an abortion before 

the fetus attains viability.” Casey, 505 U.S. at 878, 112 S. Ct. at 2821, 

120 L. Ed. 2d at 715. 

On the other hand, if the state’s interest is to further the health or 

interest of a woman seeking to terminate her pregnancy, “[u]nnecessary 

health regulations that have the purpose or effect of presenting a 

substantial obstacle to a woman seeking an abortion impose an undue 

burden on the right.” Id. at 878, 112 S. Ct. at 2821, 120 L. Ed. 2d at 

716. Some federal courts applying this test have interpreted it to mean 

“[t]he feebler the medical grounds, the likelier the burden, even if slight, 

to be ‘undue’ in the sense of disproportionate or gratuitous.” Planned 

Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013); 

see also Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 912–14

(9th Cir. 2014). Under this approach, we are required “to weigh the 

extent of the burden against the strength of the state’s justification in the 

context of each individual statute or regulation.” Planned Parenthood 

Ariz., 753 F.3d at 914.

In contrast to the Seventh and Ninth Circuits, the Fifth and Sixth 

Circuit Courts of Appeals have applied Casey differently to measures 

passed by their state to promote the health or interest of a woman 

seeking to terminate her pregnancy. The Fifth and Sixth Circuits do not 
21

weigh the strength of the state’s justifications against the burden placed 

on women. Under the Fifth Circuit’s approach, once the state sets forth 

a justification for an abortion regulation sufficient to pass rational basis 

review, it is not necessary to consider the strength of the state’s 

justification in its analysis. Planned Parenthood of Greater Tex. Surgical 

Health Servs. v. Abbott, 748 F.3d 583, 593–99 (5th Cir. 2014). The Sixth 

Circuit took the same approach as the Fifth Circuit when it decided its 

case without considering the strength of the state’s justification in its 

analysis. See Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 

490, 513–18 (6th Cir. 2012).

Like the Seventh and Ninth Circuits, we believe the “unnecessary 

health regulations” language used in Casey requires us to weigh the 

strength of the state’s justification for a statute against the burden 

placed on a woman seeking to terminate her pregnancy when the stated 

purpose of a statute limiting a woman’s right to terminate a pregnancy is 

to promote the health of the woman. 

C. Applying the Federal Undue Burden Test to this Case. We 

will assume for purposes of this appeal that the Board has a rational 

basis to act under the federal constitutional test. Therefore, we will 

analyze the rule under the undue burden prong of the test.

1. Substance of Iowa Administrative Code rule 653—13.10. The 

rule creates a standard of practice for physicians who perform 

medication abortions. Planned Parenthood is challenging rule 653—

13.10(2) through 13.10(4). The crux of this rule is to require greater 

physician involvement in the termination of a pregnancy than is now 

provided by Planned Parenthood for medical terminations of pregnancies. 

Rule 653—13.10(2) requires a physician to perform a physical 

examination of the woman for the purposes of determining the 
22

gestational age and intrauterine location of the pregnancy. Iowa Admin. 

Code r. 653—13.10(2). Rule 653—13.10(3) requires the physician to be 

physically present in the room and give the medications to the woman. 

Id. r. 653—13.10(3). Finally, rule 653—13.10(4) requires the physician 

to schedule a follow-up visit with the woman at the same facility where 

the physician dispensed the medication to confirm the termination of the 

pregnancy and to evaluate the woman’s medical condition. Id. r. 653—

13.10(4). Planned Parenthood challenges the rule as applied to 

medication abortions done with the physician present or by telemedicine.

2. Purpose of Iowa Administrative Code rule 653—13.10. The 

Board did not pass this rule to advance the state’s interest in advancing 

fetal life. Rather, the Board passed this rule to promote the health or 

interest of a woman seeking to terminate her pregnancy. The first reason 

given by the Board for the enactment of the rule is “[t]o protect the health 

and safety of patients.” The reasons given by the Board also state the 

rule is necessary because “physicians who prescribe and administer 

abortion-inducing drugs using telemedicine are inconsistent with the 

protocols approved by the U.S. Food and Drug Administration (FDA) and 

the manufacturer of the drugs.” Additionally, in its explanations for 

overruling the reasons presented in opposition to the rule, the Board 

stated, “[t]he Board is motivated to adopt this administrative rule by its 

mandate to protect the health and safety of Iowans.” Finally, 

“[p]hysicians who prescribe and administer abortion-inducing drugs 

using telemedicine may never meet with the patient in person and may 

never see the patient again for a follow-up appointment.” Under the 

undue burden test, we “weigh the extent of the burden against the 

strength of the state’s justification in the context of each individual 

statute or regulation.” Planned Parenthood Ariz., 753 F.3d at 914.
23

3. The strength of the Board’s justification of the rule. The 

underpinning of the Board’s rule is that competent medical care to 

promote the health of a woman seeking to terminate her pregnancy 

requires a physician to do a physical examination. In its explanations for 

overruling the reasons presented in opposition to the rule, the Board 

said:

The Board considers a thorough medical history and 

physical examination to be the cornerstone of good medical 

care. On this foundation an accurate diagnosis can be made 

and the most appropriate treatment plan offered to the 

patient. The Board is concerned about the quality and 

sufficiency of the physical examination being performed prior 

to a medical abortion. 

However, the weight of the record evidence indicates that a pelvic 

examination prior to administering the mifepristone does not provide any 

measurable gain in patient safety.

Dr. Kenney was the only actively practicing doctor who opined that

a doctor should give a patient seeking a medical termination of a 

pregnancy a physical exam that includes a pelvic exam before proceeding 

with the termination.4 This opinion was contrary to the opinions of the 

other board certified obstetricians and gynecologists. This opinion was 

also contrary to the standards of practice developed by ACOG. In their 

view, the medically necessary information a physician needs to determine 

whether to proceed with a medication abortion is contained in the 

patient’s history, blood work, vital signs, and ultrasound images—which 

can be accessed by reviewing the patient’s records remotely or in person.

4He testified the ultrasound would not be sufficient to diagnose an ectopic

pregnancy and that a pelvic exam is also needed. All other actively practicing 

physicians who testified on that issue disagreed.

 
24

The physician reads the ultrasound images before giving the 

patient the medication. The physician uses the ultrasound images to 

determine the location of the gestational sac. If the ultrasound images 

are of poor quality or do not clearly show the gestational sac, the 

physician does not dispense the medication to the woman. If the 

gestational sac is located outside the uterus, the woman may have an 

ectopic pregnancy. The physician will not dispense the medication if the 

patient is experiencing an ectopic pregnancy. The physician only 

dispenses the medication if the gestational sac is in the uterus.

The physician also reviews the patient’s medical history, blood 

work, and vital signs. The physician reviews the history taken by the 

medical provider who takes the history in-person and asks further 

questions of the patient as needed. A person other than a physician 

draws the patient’s blood and a lab processes it. These results are 

reviewed by the physician, who can order further blood work if 

necessary. Finally, the physician reviews the vital signs, which a person 

other than the physician normally takes. If the doctor has any questions 

regarding a patient’s vital signs, the physician can have a vital sign 

retaken. 

The next justification for the presence of a physician was the offlabel use of the medications by Planned Parenthood. However, studies 

have shown that the off-label protocol is safer and more effective than the 

FDA approved protocol for administering the drugs. The method 

presently used by Planned Parenthood conforms to the present medical 

standard of care for administering the drug. 

An additional reason for the rule prohibiting telemedicine abortions 

is that a patient may never meet face-to-face with the physician 

prescribing the medication. The Board determined a face-to-face meeting 
25

was important in promoting the health or interest of a woman seeking to 

terminate her pregnancy. However, an increasing number of medical 

procedures are being performed today by telemedicine. Studies have 

shown medical termination of pregnancies can be “provided safely and 

effectively by nonphysician clinicians.” Medical Management of FirstTrimester Abortion, Practice Bulletin No. 143 (Am. Coll. of Obstetricians & 

Gynecologists, Wash., D.C.) Mar. 2014, at 11 (hereinafter ACOG 

Bulletin). Second, studies have shown that telemedicine abortions pose 

no further risk of complications to the woman than medication abortions 

done with the physician present. Daniel Grossman, et al., Effectiveness 

and Acceptability of Medical Abortion Provided Through Telemedicine, 118 

Obstetrics & Gynecology 296, 302 (2011).5

Based on these studies, ACOG issued a practice bulletin. A 

practice bulletin is 

designed to aid practitioners in making decisions about 

appropriate obstetric and gynecologic care. These guidelines 

should not be construed as dictating an exclusive course of 

treatment or procedure. Variations in practice may be 

warranted based on the needs of the individual patient, 

resources, and limitations unique to the institution or type of 

practice.

ACOG Bulletin at 1. The ACOG Bulletin recommends that the off-label 

use of mifepristone and misoprostol are superior to the FDA protocol. Id. 

at 11. In addition, the bulletin recommends that “[m]edical abortion can 

be provided safely and effectively via telemedicine with a high level of 

patient satisfaction; moreover, the model appears to improve access to 

early abortion in areas that lack a physician health care provider.” Id. at 

12.

5The record indicates there has been no increase in complications reported since 

telemedicine abortions began being performed in Iowa in 2008. 

 
26

The rule also requires the physician’s physical presence with the 

woman at the time the physician provides the drug to terminate the 

pregnancy. The record does not show the necessity of this part of the 

rule to promote the woman’s health. In fact, when a speaker asked a 

physician board member whether it was her practice to be present when 

she dispensed drugs, the board member did not answer. Planned 

Parenthood has a health care professional in the room when the patient 

ingests the drug to make sure the patient swallows the pill. 

The final part of the Board’s rule requires the physician to

schedule a follow-up visit with the woman at the same facility where the 

physician dispensed the medication to confirm the termination of the 

pregnancy and to evaluate the woman’s medical condition. The purpose 

of the follow-up visit is to make sure the termination of the pregnancy 

was complete. The record, however, established that a clinic equipped to 

detect and examine women for signs of pregnancy could make this 

determination. 

4. The burden on a woman seeking to terminate her pregnancy. 

Planned Parenthood urges that the telemedicine rule imposes a 

substantial burden on a woman seeking to terminate her pregnancy 

because it only has physicians at its clinics in Des Moines, Iowa City, 

and Ames. This means that a woman seeking a medication abortion in 

Iowa potentially would have to drive hundreds of miles. Additionally, 

requiring two visits to the same clinic would cause a working mother to 

potentially miss two to four days of work and incur additional childcare 

expense. Planned Parenthood claims these additional costs are a 

significant financial strain on low-income women and their families, and 

for some individuals these costs are prohibitive. Finally, it asserts that 

increased travel means a greater possibility that an abusive spouse, 
27

partner, or relative could find out the woman is terminating her 

pregnancy. This may cause the woman to lose the ability to make the 

abortion decision privately and discretely. See Casey, 505 U.S. at 887–

98, 112 S. Ct. at 2826–31, 120 L. Ed. 2d at 721–28 (striking down a 

spousal notification requirement as an undue burden because it was 

“likely to prevent a significant number of women from obtaining an 

abortion”).

There is no question the rule imposes some burdens that would 

not otherwise exist and did not exist before the rule was adopted. 

Planned Parenthood provides telemedicine abortions at clinics in 

Burlington, Cedar Falls, Council Bluffs, Dubuque, the Quad Cities, and 

Sioux City. Clearly, those services would end and women in those 

communities would have to travel—in many cases hundreds of miles—to 

obtain abortions from Planned Parenthood if the rule took final effect.6

Even opponents did not dispute the rule would impose some 

burdens on women seeking abortion services. Their contention was that 

a woman who wants an abortion, even if she was indigent, would 

overcome these burdens.7

The Board has several responses to Planned Parenthood’s position 

regarding burden. First, it points out that the twenty-four-hour waiting 

period in Casey resulted in additional trips and therefore additional 

driving, but was upheld. See id. at 885–87, 112 S. Ct. at 2825–26, 120 

6After the adoption of the rule, Planned Parenthood for a period of time provided 

in-person physician services in the Quad Cities and Sioux City but claims it did so at a 

financial loss and ceased providing that service at those locations when it could no 

longer sustain the loss. 

7Planned Parenthood witnesses testified that the introduction of telemedicine 

abortions has not increased the number of abortions in Iowa, but has resulted in their 

occurring, on average, earlier in the pregnancy.

 
28

L. Ed. 2d at 720–21.8 Second, the Board relies on the following language 

from Casey: 

The fact that a law which serves a valid purpose, one not 

designed to strike at the right itself, has the incidental effect 

of making it more difficult or more expensive to procure an

abortion cannot be enough to invalidate it. 

Id. at 874, 112 S. Ct. at 2819, 120 L. Ed. 2d at 712. Third, the Board 

notes that in Casey, the Supreme Court upheld a requirement that a 

physician provide the informed consent form to the patient. It argues

that if a physician can be required to obtain informed consent, a 

physician also can be required to perform a physical exam. The Board 

directs us to this passage from Casey:

The Pennsylvania statute also requires us to 

reconsider the holding in [City of Akron v. Akron Center for 

Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 

L. Ed. 2d 687 (1983)] that the State may not require that a 

physician, as opposed to a qualified assistant, provide 

information relevant to a woman’s informed consent. Since 

there is no evidence on this record that requiring a doctor to 

give the information as provided by the statute would 

amount in practical terms to a substantial obstacle to a 

woman seeking an abortion, we conclude that it is not an 

undue burden. Our cases reflect the fact that the 

Constitution gives the States broad latitude to decide that 

particular functions may be performed only by licensed 

professionals, even if an objective assessment might suggest 

that those same tasks could be performed by others.

Id. at 884–85, 112 S. Ct. at 2824, 120 L. Ed. 2d at 719–20 (citation 

omitted). 

Lastly, the Board argues that undue burden should not be 

determined by the decisions and circumstances of a single provider. The 

rule does not mandate that Planned Parenthood close clinics. If Planned 

Parenthood could deploy physicians in more communities, its clients 

8The Board also notes that Iowa, unlike a majority of states, does not have a 

mandatory waiting period and thus does not automatically require two visits.

 
29

would not have to travel as far. An additional noteworthy point is that 

telemedicine abortions have existed in Iowa only since 2008 and do not 

exist in the vast majority of states. Thus, as compared to the situation 

before 2008 or in many other states, the Board’s rule does not have a 

significant adverse effect.

5. Weighing the strength of the Board’s justification for its rule 

against the burden placed on a woman seeking to terminate a pregnancy. 

Consistent with United States Supreme Court precedent, we must now 

weigh the health benefits of rule 653—13.10(2) through 13.10(4) against 

the burdens they impose on a woman who wishes to terminate a 

pregnancy. As the foregoing indicates, the record evidence showed very 

limited health benefits. While undoubtedly at an abstract level everyone 

would prefer to see a doctor in person every time they have a medical 

issue, the reality of modern medicine is otherwise. In this case, the 

record indicates the physician plays an important role in reviewing the 

ultrasound images and dispensing the prescribed medications, but those 

roles can be performed without the physician being personally present. 

The record also provides almost no medical support for the necessity of a 

pelvic exam prior to dispensing the medication. At the same time, the 

record indicates that the telemedicine rule would make it more 

challenging for many women who wish to exercise their constitutional 

right to terminate a pregnancy in Iowa to do so. 

A general concern we have with the Board’s appellate arguments is 

that they are not “context-specific.” See Planned Parenthood Ariz., 753 

F.3d at 914 (indicating “the undue burden test is context-specific, and . . 

. both the severity of a burden and the strength of the state’s justification 

can vary depending on the circumstances”). Rather, the Board argues 

broadly that because travel burdens and physician presence 
30

requirements were acceptable in Casey, they must be acceptable here. 

But as we read Casey, it turned on the evidence and record in that case, 

including a recognition that the informed consent requirement served a 

“substantial government interest,” including the “psychological wellbeing” of the woman. Casey, 505 U.S. at 882, 112 S. Ct. at 2823, 120 L. 

Ed. 2d at 718. As we have discussed already, this record, which is based 

on 2013 medical standards and practices in Iowa, reveals only minimal 

medical justification for the challenged aspects of the rule. 

Given the strongly held beliefs on both sides of the issue, it is not 

surprising that the Board received many thoughtful comments 

expressing a variety of viewpoints. While the commenters vigorously 

disagree as to the extent of the burden imposed by the rule, there was 

little discussion in medical terms as to how the rule was medically 

necessary to protect a woman’s health. 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). As the Seventh Circuit observed in the somewhat different 

circumstances presented in Van Hollen, “An issue of equal protection of 
31

the laws is lurking in this case.” 738 F.3d at 790. The Board appears to 

hold abortion to a different medical standard than other procedures.9 

After careful consideration, we hold that rule 653—13.10(2) 

through 13.10(4) places an undue burden on a woman’s right to 

terminate her pregnancy as defined by the United States Supreme Court 

in its federal constitutional precedents. Because the Board agrees the 

Iowa Constitution protects a woman’s right to terminate her pregnancy to 

the same extent as the United States Constitution, we find the rule

violates the Iowa Constitution.

V. Disposition.

For the foregoing reasons, we find Iowa Administrative Code rule

653—13.10(2) through 13.10(4) is unconstitutional. Therefore, we 

reverse that part of the district court’s judgment finding rule 653—

13.10(2) through 13.10(4) constitutional. We affirm the district court’s 

judgment as to rule 653—13.10(1) and 13.10(5). We also lift our stay as 

to the Board’s enforcement of rule 653—13.10(1) and 13.10(5). 

AFFIRMED IN PART AND REVERSED IN PART.

Zager, J., takes no part. 

9The Board’s recent rule endorsing evidence-based telemedicine in other 

contexts exempt abortion. See Iowa Admin. Code r. 653—13.11(22).