Petitioners Planned Parenthood of the Heartland, Inc. and Dr. Jill Meadows (jointly referred to as PPH) filed a petition for judicial review against respondent Iowa oard of Medicine (the !oard). "he parties filed !riefs as per the scheduling order entered !y the court. "he #atter ca#e on for hearing on June $%, &'$(. )ttorneys )lice *lap#an and +haron Malheiro represented PPH. )ssistant )ttorney ,eneral Julie ussan#as represented the !oard. "he record included the agency-s certified record pages $.//$, petitioner-s a#ended appendi0 pages //&.%$%, and the e0hi!its and affidavits su!#itted to the court during the application for stay hearing on 1cto!er 2', &'$2. "he certified record included a disc with audio of a pu!lic hearing held !y the !oard on )ugust &3, &'$2 (referred to as *D). $
STATEMENT OF THE CASE Introd+,tion and -a,./ro+nd4 1n January &&, $562, the 7nited +tates +upre#e *ourt entered its land#ar8 decision in Roe v. Wade, ($' 7.+. $$2 ($562) in which it found a wo#an has a constitutional right to ter#inate her pregnancy, with so#e li#itations. "hose li#itations
$ "his ruling refers to ver!al state#ents #ade to the !oard during the pu!lic hearing as 9testi#ony.: "o !e clear, the state#ents were not under oath; they were #ade as part of each individual-s re<uest to provide input to the !oard. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &
have !een the su!ject of addition litigation, !ut the 9essential holding: of Roe allowing a wo#an to choose to have an a!ortion !efore via!ility and without 9undue interference fro# the +tate: has !een reaffir#ed !y the 7nited +tates +upre#e *ourt. See Planned Parenthood of Southeastern Penn. v. Casey, /'/ 7.+. 322, 3(/ ($55&) (applying the undue influence standard). In the years following Roe, a!ortion has !een legally perfor#ed in the +tate of Iowa. )s an e0a#ple, in &''3, %,/%' wo#en o!tained a!ortions in Iowa. )s of &''3, there were eleven a!ortion providers in Iowa, with a!ortion services !eing provided in nine of Iowa-s ninety.nine counties. "he availa!ility of a!ortion providers in Iowa is co#para!le to other states = nationally, a!ortion providers are present in appro0i#ately thirteen percent of counties. ()pp. //(.//). Historically, a!ortion was perfor#ed as a surgical procedure. In &''', the 7nited +tates >ood and Drug )d#inistration (>D)) approved the use of a drug 8nown !y its test na#e ?7. (3%, now 8nown as #ifepristone, for the purpose of inducing a!ortions. "he process of ta8ing #ifepristone to induce a!ortion is referred to throughout the record as #edical a!ortion, as distinguished fro# a surgical a!ortion. ()pp. $(/, &&3.&5, &2%). "he >D)-s approval of #ifepristone re<uires three office visits with the patient. 1n the first visit, the physician or person supervised !y the physician ad#inisters %'' #g of #ifepristone. "he patient is instructed to return two days later to deter#ine whether the a!ortion has occurred. If not, the physician or person supervised !y the physician would ta8e ('' ug of #isoprostol. ecause there #ay !e side effects, the patient should !e #onitored and given a phone nu#!er of the physician who would handle any e#ergencies following the office visit. "he third visit is a follow.up appro0i#ately fourteen days following the first visit. "he >D) E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 2
considered the follow.up visit to !e 9very i#portant to confir# !y clinical e0a#ination or ultrasonographic scan that a co#plete ter#ination of pregnancy has occurred.: ()pp. $(%.(6, &&3.&5, &26). )t the ti#e the >D) approved #ifepristone, it found the drug to !e safe if used within forty.nine days of gestation or less. +tudies conducted since that ti#e have found the drug to !e safe up to si0ty.three days of gestation when used as part of a protocol co#!ined with the re<uired use of #isoprostol. @ith that protocol, the patient is given &'' #g of #ifepristone to ta8e at the clinic, and 3'' ug of #isoprostol to ta8e vaginally at ho#e appro0i#ately forty.eight hours later. "he studies indicate that gestational age should !e confir#ed !y clinical evaluation or ultrasonography, as the drug is safer and #ore effective earlier in gestation. "he >D) has not approved the alternative protocol used for pregnancies !etween fifty and si0ty.three days of gestation. ()pp. $(3.(5, &&3.&5, &2%.((). "here are several contraindications for a!ortions with #ifepristone regi#ens, including confir#ed or suspected ectopic pregnancy or undiagnosed adne0al #ass, intrauterine device in place, current long.ter# syste#ic corticosteroid therapy, chronic adrenal failure, severe ane#ia, 8nown coagulopathy or anticoagulant therapy, and #ifepristone intolerance or allergy. )dditionally, #ost of the clinical trial e0cluded wo#en with severe liver, renal, or respiratory disease, uncontrolled hypertension, cardiovascular disease, or severe ane#ia. "he drug should not !e used in wo#en with an uncontrolled seiAure disorder. +tudies also caution against #edical a!ortion for wo#en with 9social or psychological contraindications,: such as wo#en who do not want to ta8e responsi!ility for their care, are an0ious to have the a!ortion over <uic8ly, cannot return for follow.up visits, or cannot understand the instruction due to language or co#prehension !arriers. ()pp. &($). E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT (
PPH te0e1edi,ine 1edi,a0 a-ortion #roto,o04 PPH is an a!ortion provider operating in the +tate of Iowa. PPH perfor#s surgical and #edical a!ortions. In late &''3, PPH !egan offering #edical a!ortions through use of 9tele#edicine.: In this protocol, PPH-s physician does not personally #eet the patient, !ut rather, tal8s to the patient !y a real.ti#e two.way video conferencing syste#. +taff #e#!ers, which #ay include nurses or certified #edical assistants (*M)), conduct the physical e0a#, ta8e !lood for la! wor8, and conduct an ultrasound. Infor#ation is relayed to the physician, who, !y co#puter, releases a drawer in front of the patient that contains the a!ortion #edications. "he patient can then access the #edication. "he drawer is pac8ed and loc8ed !y a phar#acist or a PPH staff person. (Meadows affidavit; *D = ?oss, uchac8er, ,ross#an testi#ony). PPH-s protocol re<uires the use of #ifepristone and #isoprostol ta8en in co#!ination. "he patient ta8es the #ifepristone at the clinic in front of the doctor (!y video) and a PPH staff person in the roo#. "he patient is instructed to ta8e the #isoprostol at ho#e twenty.four to forty.eight hours later. ) follow.up visit is scheduled for appro0i#ately two wee8s later. "he patient is given infor#ation how to contact PPH #edical staff with <uestions or concerns. ()pp. (2(.2/). @hile the record is not co#pletely clear on this point, it appears that PPH-s use in Iowa of doctor participation in #edical a!ortions !y video.conferencing was the first in the nation, and there is no evidence that the sa#e protocol is used in the sa#e way in other states. Dr. "ho#as ?oss fro# PPH appeared !efore the !oard at a pu!lic hearing stating that Iowa #ay have !een the first state that tele#edicine a!ortion was used. He was not sure whether it had !een used in other states, !ut agreed that Iowa was the first state which it was widely used. "here is no evidence in the record to show that a!ortions were perfor#ed !y tele#edicine in any other state E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT /
prior to PPH !eginning the procedure in Iowa in &''3. "he record does not show that tele#edicine a!ortions are perfor#ed in other states since then. "he record indicates that si0teen other states have ta8en action to re<uire prescri!ing physicians to !e in the physical presence of wo#en when perfor#ing #edical a!ortions. (*D = ?oss testi#ony; )pp. $%$.%&). Dr. Daniel ,ross#an, a vice president of research for I!is ?eproductive Health, conducted a study of PPH-s protocol fro# &''3 through &'$'. Dr. ,ross#an-s study was !ased on a review of records and was not clinical in nature. Dr. ,ross#an found no difference in the co#plication rates !etween patients of #edical a!ortion who saw a doctor in person versus those who saw a doctor !y video conferencing. (*D = ,ross#an testi#ony; )pp. (33.5'). T2e -oard3 (%4% in!eti/ation4 "he !oard was created to license and regulate physicians practicing in the state of Iowa. See generally Iowa *ode chapters $(6, $(3, &6&*. "he !oard consists of ten #e#!ers4 five #e#!ers licensed to practice #edicine and surgery, two to practice osteopathic #edicine and surgery, and three pu!lic #e#!ers. Iowa *ode section $(6.$(($). "he !oard has the authority to adopt all rules necessary and proper to ad#inister and interpret its governing statutes. Iowa *ode section $(6.6%. "he !oard #ay have alternate #e#!ers to hear contested case hearings, !ut alternate #e#!ers are not authoriAed to perfor# the !oard-s rule.#a8ing function. Iowa *ode section $(3.&). In &'$', the !oard received a co#plaint against Dr. ?oss and another doctor who perfor#ed #edical a!ortions through tele#edicine. "he !oard investigated the co#plaint !y o!taining docu#ents fro# PPH and personally interviewed Dr. ?oss and the other physician. "he !oard dis#issed the co#plaint and too8 no disciplinary action against Dr. ?oss or the other doctor. Dr. ?oss has not changed his practice as to #edical a!ortions following the !oard-s E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT %
investigation. "he !oard did not adopt any rules regarding #edical a!ortion at that ti#e. (?oss affidavit). Petition 5or r+0e1a.in/4 1n or a!out June &/, &'$2, the !oard received a 9petition for rule#a8ing regarding the standards of practice for perfor#ing a che#ical a!ortion.: & "he petition was su!#itted !y fourteen individuals, including five physicians. "he rule sought a standard of practice for #edical a!ortions that would re<uire the following4 $) a physician perfor# an in.person physical e0a# of the patient to deter#ine gestational age and intrauterine location in the pregnancy !efore inducing an a!ortion through an a!ortion.inducing drug, &) physical presence of a physician at the ti#e an a!ortion.inducing drug is provided, 2) the physician inducing the a!ortion schedule a follow.up visit with the patient at the sa#e facility twelve to eighteen days after the use of the drug, and () parental notification if the patient is a #inor. ()pp. (6./(, /&/). 1n June &3, &'$2, the !oard held a pu!lic #eeting regarding the petition for rule#a8ing. )fter hearing fro# three #e#!ers of the pu!lic, a #otion was #ade and seconded to accept the petition and co##ence the rule#a8ing process. )nn ,ales, a !oard #e#!er, stated that the !oard was considering the rule too <uic8ly. "he !oard-s legal counsel fro# the )ttorney ,eneral-s 1ffice advised the !oard to delay accepting the petition, although she stated the !oard could concurrently approve a separate notice of intended action with the sa#e language as the petition. "he !oard-s director of legal affairs si#ilarly stated that the !oard was ta8ing action without fully considering the issues in the petition. However, renna >indley, the ,overnor-s legal counsel and state ad#inistrative rules coordinator, advised the !oard that it could vote to
& "he reference to 9che#ical a!ortion: is the sa#e as 9#edical a!ortion: as used throughout this ruling. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 6
accept or reject the petition i##ediately. "he chair called for a vote and the !oard approved the #otion !y an eight.to.two vote. ()pp. /&(./&6). >ollowing the vote, the !oard filed a notice of intended action to adopt the language fro# the petition as a for#al rule. "he !oard pu!lished notice in the Iowa )d#inistrative ulletin. "he notice stated that the !oard would hold a pu!lic hearing for )ugust &3, &'$2 to hear ver!al co##ents on the rule. "he notice also infor#ed the pu!lic that it could su!#it written co##ents !y (42' p.#. on the sa#e date. 1n July &5, &'$2, the !oard issued a press release providing infor#ation a!out the pu!lic hearing. "he !oard pu!lished a copy of the proposed rule on its we!site and allowed the pu!lic to review pu!lic co##ents. ()pp. (.3, (%, /$$). "he !oard held its pu!lic hearing on )ugust &3, &'$2 fro# appro0i#ately $4'' p.#. to (42' p.#. "he !oard received testi#ony fro# twenty.eight individuals and written co##ents fro# &(( individuals and organiAations. 1n )ugust 2', &'$2, the !oard #et to consider adoption of the rule. Bach of the !oard #e#!ers offered co##ents a!out the rule prior to the vote. "he rule was adopted !y an eight.to.two vote. 1ne of the dissenting !oard #e#!ers, Ms. ,ales stated her pri#ary concern that the !oard was 9hasty: in adopting the rule. +he preferred #ore dialogue with sta8e.holders !efore approval. "he other dissenting voter, Dr. Michael "ho#pson, li8ewise e0pressed concern with the speed in which the rule was adopted (although he also shared health concerns with PPH-s tele#edicine practice, citing issues with the training of clinic staff #e#!ers and access to e#ergency care in the event of co#plications). ()pp. $&, /$6.&'). 1n +epte#!er &6, &'$2, the !oard issued a state#ent regarding the adoption of the rule. "he !oard cited five principal reasons presented in support of the rule. In su##ary, they were4 $) to adopt a standard of practice to protect the health and safety of patients who are prescri!ed a!ortion.inducing drugs; E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 3
&) to ensure that the practices used !y physicians who are prescri!ing a!ortion.inducing drugs !y tele#edicine are inconsistent with protocols used !y the >D) and drug #anufacturers; 2) to ensure that Iowa *ode section 6'6.6(2), which only allows physicians to perfor# a!ortions, is !eing followed; () to end physical e0a#s of patients see8ing a #edical a!ortion !y non.physicians who do not have appropriate training for the purpose of confir#ing or discovering contraindications, as well as perfor#ing ultrasounds to deter#ine the age and location of the e#!ryo; and /) to ensure that physicians who prescri!e and ad#inister a!ortion.inducing drugs !y tele#edicine #eet the patient in person and see the patient for a follow.up appoint#ent.
"he !oard also cited eight principal reasons in opposition to the rule and the !oard-s reasons for overruling the o!jections. In su##ary, they were (reasons in opposition italiciAed, !oard-s response in regular type)4 $) The rule would limit rural womens access to medical abortion. "he rule does not restrict where #edical a!ortions #ay !e provided and rural wo#en are entitled to the sa#e high level of health care as ur!an wo#en. &) The rule is politically motivated and not sound public policy. "he !oard recogniAes that a!ortion is a politiciAed issue, !ut it is only authoriAed to adopted rules for the licensure and practice of physician and its #otivation is to protect the health and safety of Iowans. 2) The rule is an attempt to ban access to a legal medical procedure. "he rule does not !an #edical a!ortion, !ut only sets standards of practice for physicians who perfor# #edical a!ortions. () The board previously addressed this matter in 2! when it investigated PP" doctors. "he #e#!ership of the !oard has changed and the !oard had never adopted a rule addressing #edical a!ortions, so the current !oard felt it needed to #ove forward to protect the health and safety of Iowans. /) The board did not underta#e a thorough study of the matter$ nor did it consider the impact the rule might have on telemedicine in general. "he !oard considered a significant a#ount of data and pu!lic co##ents on the issue and adopted a narrowly focused rule which would allow it to consider tele#edicine in a !roader sense at a future date. %) %n appropriate physical e&am is conducted by trained staff that is provided to the off'site physician who reviews the information before prescribing abortion'inducing drugs. "he E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 5
!oard considers a thorough #edical history and physical e0a# to !e the cornerstone of good #edical care. "he !oard descri!ed in so#e detail its concerns with the lac8 of a physical e0a# and the training of staff who conduct ultrasounds to deter#ine gestational age. 6) The treatment and consultation made by the physician in a telemedicine conte&t are the same as those in a face'to'face setting. "he !oard !elieves that prescri!ing physicians #ust !e physically present to esta!lish a proper physician.patient relationship to conduct a safe #edical a!ortion. 3) Patients are already receiving appropriate follow'up care in remote clinics where a physician is not physically present. "he !oard !elieves an in.person physical e0a# and consultation will strengthen the physician.patient relationship and result in i#proved and increased follow.up care.
Ditri,t ,o+rt #ro,eedin/4 1n +epte#!er 2', &'$2, PPH filed a petition for judicial review and #otion for stay of agency action. PPH as8ed the !oard to stay i#ple#entation of the rule pending judicial review. "he !oard refused to do so. 1n 1cto!er 2', &'$2, the district court heard evidence and argu#ent on the #otion. 1n Cove#!er /, &'$2, the court issued its ruling. "he court noted that its ruling is 9e0tre#ely narrow in scope,: and that the ruling 9does not, in any way, decide the #erits of Petitioners- constitutional and other clai#s.: (Cove#!er /, &'$2 ?uling at p. /). "he court focused on a !alance of the hardships incurring to each party if a stay was not granted pending a decision on the #erits of the case. "he court found that a weighing of the hardships favored petitioners, and therefore granted the stay. (?uling at pp. 5.$/). Prior to the su!#ission of the !riefs on the #erits, and even following su!#ission of the last !rief there have !een considera!le #otions and de!ate as to what record should !e considered. "he !oard filed a certified record that included written co##ents provided to the !oard 2 and the audio fro# the pu!lic hearing on )ugust &3, &'$2. 1n March &(, &'$(, the court issued an order granting in part and denying in part a re<uest !y petitioners to su!#it additional
2 "he !oard received a nu#!er of co##ents fro# petitions that opposed a!ortion generally. "hose docu#ents were redacted as duplicative. ()pp. $''). E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $'
docu#entation. +ince that date, the parties have de!ated the a!ility of the court to view we!sites that #ay contain #edical or a!ortion data. oth parties have cited to we!sites to support factual propositions #ade. >or e0a#ple, PPH cited to a we!site to show that so#e of the sponsors of the petition for rule#a8ing are #e#!ers of an organiAation that opposes a!ortion generally. (PPH !rief at p. &&). "he !oard cited to several we!sites to support its view that a physical e0a#ination is necessary prior to a #edical a!ortion. (oard-s !rief at pp. &'.&$). "he court !elieves the !est course is to li#it the consideration of factual #atters to the record !efore the agency. PPH actively participated in the pu!lic hearing !y offering several witnesses, and su!#itted docu#ents for the !oard to consider !efore #a8ing its decision. +upporters of the rule did the sa#e. "he !oard issued a written state#ent e0plaining its findings. "here was a#ple opportunity for those in favor and in opposition to the rule of the issue to su!#it evidence and argu#ents to the !oard. "here is #ore than ade<uate record to consider the #erits of the parties contentions, !ased on the standard of review !efore the court, without delving into we!sites that #ight have changing content and unrelia!le infor#ation. ( >or these reasons, petitioners- #otion to reopen the record is denied. "his is intended to !e responsive to petitioners- #otion to clarify scope of the record.
( "he court is #indful of the a!ility to consider legislative or constitutional facts in a case involving a constitutional clai#. See (arnum v. )rien, 6%2 C.@.&d 3%&, 33$ (Iowa &''5). However, this case involves #ultiple judicial review clai#s, of which it is not appropriate to consider facts outside the record. "he court !elieves that all clai#s can !e fairly considered !ased on the record #ade !efore the agency, as supple#ented !y PPH. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $$
CONCLUSIONS OF LAW I. Standard o5 re!ie6. A. *enera0 tandard. Judicial review of agency rule#a8ing is governed !y Iowa *ode chapter $6). %uen v. %lcoholic )everages *iv.$ %65 C.@.&d /3%, /35 (Iowa &''(). "he district court acts in an appellate capacity, reviewing agency action under the standards set forth in Iowa *ode section $6).$5($'). +owa ,ed. Soc. v. +owa )d. of -ursing, 32$ C.@.&d 3&%, 323 (Iowa &'$2). ) district court #ay grant relief if the agency action has prejudiced the su!stantial rights of the petitioner and the action #eets one of the enu#erated criteria contained in section $6).$5($')(a) through (n). Renda v. +owa Civil Rights Commn, 63( C.@.&d 3, $' (Iowa &'$'). ) party challenging agency action !ears the !urden of de#onstrating the actionDs invalidity and resulting prejudice. *2 .nterprises$ +nc. v. State$ *ep/t of +nspections 0 %ppeals, 6/& C.@.&d 2$ (Iowa )pp. &''3); Iowa *ode section $6).$5(3)(a). )n agency shall have only that authority or discretion delegated to or conferred upon the agency !y law and shall not e0pand or enlarge its authority or discretion !eyond the powers delegated to or conferred upon the agency. %uen v. %lcoholic )everages *iv., %65 C.@.&d /3%, /5' (Iowa &''() (1uoting Iowa *ode E $6).&2). @ith that said, the power conferred on an agency !y the legislature to adopt rules is <uite !road. %uen, %65 C.@.&d at /5'. In %uen, the Iowa +upre#e *ourt cited to the agency-s statutory authority to enforce and i#ple#ent the laws concerning alcoholic !everages, as well as the power to adopt all rules necessary to carry out its delegated duties, in finding that the legislature had clearly vested the agency power to interpret the law relating to li#itations on !usiness interests relating to licensing. +d. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $&
"he legislature has clearly vested professional licensing !oards with the power to #a8e rules and interpret its governing statutes as related to the practice of its respective professions. See +owa ,edical Society, 32$ C.@.&d at 323. In +owa ,edical Society, the Iowa +upre#e *ourt held that the legislature clearly vested the Iowa oard of Cursing with rule#a8ing and interpretive authority for Iowa *ode chapter $/& governing the practice of nursing. +d. (citing to Iowa *ode section $(6.6%, which grants rule#a8ing authority to all of the professional licensing !oards listed in the chapter). +i#ilarly, in "ouc# v. +owa )oard of Pharmacy .&aminers, 6/& C.@.&d $(, $6 (Iowa &''3), the Iowa +upre#e *ourt held that the legislature has 9delegated !road authority: to the Iowa oard of Phar#acy B0a#iners to regulate the practice of phar#acy in Iowa through the adoption of rules. "he court again cited to section $(6.6%, as well as the oard of Phar#acy-s governing statute, Iowa *ode chapter $//). "he !oard of #edicine has the sa#e statutory authority to regulate the #edical profession through rule#a8ing as the !oards of nursing and phar#acy. +ection $(6.6% si#ilarly applies to the !oard of #edicine, and gives the !oard statutory authority to adopt all necessary and proper rules to ad#inister the general provisions relating to the #edical profession. "he !oard-s governing statute, Iowa *ode chapter $(3, provides powers si#ilar to the statutes governing the !oards of nursing and phar#acy. PPH did not strictly challenge the !oard-s rule as !eing inconsistent with its governing statutes or otherwise outside its statutory authority. However, the court #ust re#ain #indful of these legal standards governing agency discretion to retain the proper perspective when considering the legal challenges actually #ade !y PPH. 1ne of the purposes for the $553 a#end#ents to chapter $6) was to har#oniAe differing court decisions regarding the level of discretion to !e given agencies to interpret statutes. )s stated !y Professor )rthur onfield4 E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $2
@here the ,eneral )sse#!ly clearly delegates discretionary authority to an agency to interpret or ela!orate a statutory ter# !ased on the agency-s own special e0pertness, the court #ay not si#ply su!stitute its view as to the #eaning or ela!oration of the ter# for that of the agency !ut, instead, #ay reverse the agency interpretation or ela!oration only if it is ar!itrary, capricious, unreasona!le, or an a!use of discretion =a deferential standard of review. . . . It would !e i#proper for a court to si#ply su!stitute, without any deference to the agency-s view of the #eaning of a statutory ter#, the court-s own view of the #eaning of a statutory ter# that the ,eneral )sse#!ly had clearly delegated to the discretion of any agency to ela!orate, !ecause in that situation the court would !e violating the statute delegating that discretionary authority to the agency.
)rthur onfield, %mendments to +owa %dministrative Procedure %ct$ Report on Selected Provisions to +owa State )ar %ssociation and +owa State 2overnment, pp. %$.%& ($553) (e#phasis in te0t) (hereafter referred to as 9onfield:); See also 3ocate.Plus.Com.$ +nc. v. +owa *ept of Transportation, %/' C.@.&d %'5, %$2 (Iowa &''&) (citing to onfield while noting that Iowa courts have 9given deference to agency interpretation of !road vague statutory ter#s:). "here is no <uestion that the !oard has the power to esta!lish standards of practice for the #edical profession. "hose standards include the authority to adopt and enforce standards regarding the #ini#al standards of accepta!le and prevailing practice. Iowa *ode section $(3.%(&)(g). "he legislature re<uires seven of the ten !oard #e#!ers to !e physicians, thus giving the !oard a !uilt.in level of e0pertise of the #edical profession. )ccordingly, the !oard-s adoption of rules relating to the practice of #edicine are entitled to deference, if co#pliant with the other standards set forth in section $6).$5($'). )dditionally, the legislature singled out physicians as the only professionals to !e a!le to perfor# an a!ortion. )ny person who ter#inates a hu#an pregnancy, with the 8nowledge and voluntary consent of the pregnant person, is guilty of a class * felony. Iowa *ode section E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $(
6'6.6(2). "he only e0ception to this provision is a person licensed to practice #edicine and surgery or osteopathic #edicine and surgery under Iowa *ode chapter $(3. "he 7nited +tates +upre#e *ourt endorsed a si#ilar statutory provision in Roe v. Wade, recogniAing that the +tate #ay proscri!e a!ortion !y a person who is not a licensed physician. ($' 7.+. at $%/.%%. "he court indicated that the +tate could regulate the standard of practice for a!ortion as any other #edical procedure, noting that judicial and intra.professional re#edies #ay !e pursued if a practitioner does not follow 9proper #edical judg#ent.: +d. )ccordingly, while the proposed rule #ay !e new, the concept that physicians #ay !e su!ject to professional standards when perfor#ing a!ortions has !een around since Roe. ". Standard re/ardin/ t2e #ro1+0/ation o5 r+0e. PPH did not directly challenge the !oard-s co#pliance with the rule#a8ing process esta!lished under Iowa *ode chapter $6). "his is for good reason, !ecause there is no !asis for !elief that the !oard violated the statutory process. However, in light of the clai#s !y PPH that the !oard-s process was tainted !y politics and i#proper purpose, it is useful to review the law governing the adoption of agency rules and the !oard-s co#pliance therewith. "he rule#a8ing process is typically initiated !y the agency and follows the process set out in Iowa *ode section $6).(. "he agency #ust provide notice to the ad#inistrative rules coordinator and pu!lish notice in the ad#inistrative !ulletin. )ny notice of intended action shall !e pu!lished at least thirty.five days in advance of the action. "he agency #ust give all interested persons at least twenty days to su!#it data, views or argu#ents in writing. If ti#ely re<uested in writing !y at least twenty.five persons, the agency shall give the opportunity to E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $/
#a8e an oral presentation. "he agency shall consider all written and oral su!#issions. "he agency shall act within $3' days of the notice of the last date of oral presentation. )ny proposed or adopted rule is su!ject to the review of the ad#inistrative rules review co##ittee of the Iowa legislature, the governor, and the attorney general. Iowa *ode section $6).((%). "he ad#inistrative rules review co##ittee consists of five senators (three chosen !y the #ajority leader and two !y the #inority leader) and five representatives (three chosen !y the spea8er and two !y the #inority leader). Iowa *ode section $6).3($). "he ad#inistrative rules review co##ittee, governor, or attorney general #ay o!ject to all or part of the rule. Iowa *ode section $6).((%). If an o!jection is filed !y one of these three !odies, the !urden of proof shifts fro# any challenger to the agency to prove that the rule is unreasona!le, ar!itrary, capricious, or otherwise !eyond the authority delegated to it. "his process provides an additional layer of review and protection !y govern#ent !odies who have special e0pertise and 8nowledge of the legislative and rule#a8ing process. "here is a second process to initiate the rule#a8ing process. )ny interested person #ay petition an agency to adopt, a#end, or repeal a rule. Iowa *ode section $6).6. @ithin si0ty days fro# the su!#ission of a petition, the agency shall deny the petition, initiate the rule#a8ing process esta!lished in section $6).(, or issue so#e other rule if not re<uired !y section $6).(. In this case, the !oard followed the rule#a8ing process esta!lished in the statute. "he !oard received a petition for rule#a8ing. "he !oard was re<uired to act within si0ty days. It acted within the si0ty days !y initiating the rule#a8ing process set in section $6).(. It gave the proper notice, allowed for written and ver!al co##ent, considered the co##ents provided, and #a8e a decision within the ti#efra#es provided. "he record does not reflect any o!jections !y E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $%
the legislative rules review co##ittee, the governor, or the attorney general. "he !oard followed the legal process and any challenging party has the !urden of proof to show that the rule is unreasona!le, ar!itrary, capricious, or otherwise !eyond the authority delegated to it. II. C0ai1 1ade -7 PPH. A. De,iion81a.in/ #ro,e 9 Se,tion 4:A.4);4%<;=<. PPH-s first challenge is !ased on Iowa *ode section $6).$5($')(j), which allows the court to reverse, #odify, or grant other appropriate relief fro# agency action if it is4 "he product of a decision.#a8ing process in which the agency did not consider a relevant and i#portant #atter relating to the propriety or desira!ility of the action in <uestion that a rational decision #a8er in si#ilar circu#stances would have considered prior to ta8ing that action.
Ceither party cited to any case law interpreting this su!section and the court did not find any case law interpreting that su!section in its research. However, Professor onfield descri!ed su!sections (h), (i), (j), (l), and (#) in his report to !e 9specific e0a#ples of agency action that any reviewing court should overturn as unreasona!le, ar!itrary, capricious, or an a!use of discretion.: onfield at %5. He stated his opinion that none of these a#ended provisions 9really changes the law under the original I)P) section $6).$5(3)(g),: !ut should result in 9so#ewhat #ore structured, infor#ed, and syste#atic reviews !y courts under the unreasona!le, ar!itrary, capricious, and a!use of discretion standards.: +d. "here are a nu#!er of decisions that define the standard for agency action that is unreasona!le, ar!itrary, capricious, or an a!use of discretion. )gency action is considered ar!itrary or capricious when the decision was #ade 9without regard to the law or facts.: *oe v. +owa )oard of ,edical .&aminers, 622 C.@.&d 6'/, 6'6 (Iowa &''6) (1uoting 2reenwood E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $6
,anor v. +owa *ept of Public "ealth, %($ C.@.&d 3&2, 32$ (Iowa &''&)). )gency action is unreasona!le if the agency acted 9in the face of evidence as to which there is no roo# for difference of opinion a#ong reasona!le #indsF.G: +d.4 see also Citi5ens %ide67mbudsman v. Rolfes, (/( C.@.&d 3$/, 3$5 (Iowa $55'). "he court typically defers to an agencyDs infor#ed decision as long as it falls within a 9Aone of reasona!leness.: S. .. +owa Co'op. .lec. %ss/n v. +owa 8tilities )d., %22 C.@.&d 3$(, 3$3 (Iowa &''$) (cite o#itted). @hen considering clai#s under the unreasona!leness standard, the courts generally affir# the infor#ed decision of the agency, and refrain fro# su!stituting its less.infor#ed judg#ent. %l'9hattat v. .ng/g 0 3and Surveying .&amining )d., %(( C.@.&d $3, &2 (Iowa &''&). PPH raised several ite#s that it contends the !oard did not consider when adopting the su!ject rule. Bach is discussed under nu#!ered headings !elow. )s an initial #atter, however, PPH argued that the process itself was irregular. During the course of the process, the !oard heard fro# several individuals and entities suggesting the process was proceeding #ore <uic8ly than usual. "he Iowa Medical +ociety (IM+) and Iowa 1steopathic Medical )ssociation (I1M)) raised concerns that the !oard did not allow #ore ti#e for review and to receive input fro# the #edical co##unity. ()pp. $62.6(, $55). "he !oard heard si#ilar concerns a!out acting too <uic8ly fro# legal counsel during consideration of the petition for rule#a8ing, and !oard #e#!ers )nn ,ales and Dr. Michael "ho#pson during the rule#a8ing process. Cone of these individuals or entities advocated against the #erits of the rule itself, !ut regarding the process used to adopt the rule. "here is no dou!t that portions of the rule#a8ing process invited scrutiny, even though it technically co#plied with the legal re<uire#ents. "he !oard acted on the petition for rule#a8ing only three days after it was received, and in contravention of advice fro# its in.house counsel E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $3
and attorney general representative. "he !oard-s attorney represented at oral argu#ent that the June &3, &'$2 #eeting was the only #eeting scheduled within the si0ty day period that it has to act on the petition, !ut the !oard could have scheduled another #eeting within that period, even if !y telephone. "he governor-s attorney was present at the June &3, &'$2 #eeting and advised the !oard it could proceed, which although correct legal advice, was contrary to the counsel given !y the !oard- regularly assigned attorneys to ta8e #ore ti#e. 1f course, the presence and advice given !y the governor-s attorney, even though she is also the +tate-s rules review coordinator, attracts accusations that the process is #ore political than policy oriented. "he !oard did little to te#per such accusations !y refusing to follow re<uests !y professional trade groups such as IM+ and I1M) to ta8e additional ti#e for !efore adoption to receive #ore input and engage in #ore discussion with sta8eholders. However, the !oard did consider these concerns and responded to the# during its decision adopting the rule. 1ne of the !oard #e#!ers e0pressly stated at the ti#e of adoption that he felt the !oard had sufficient ti#e to study all #aterials, consider pu!lic input, and reach a decision on the rule. "he !oard stated in its written state#ent following the adoption of the rule that its #e#!ers studied the #atter !y reviewing #edical research papers and a significant a#ount of pu!lic co##ents. "he !oard stated that the rule was narrowly drafted and li#ited to standards of practice that physicians #ust use !efore conducting #edical a!ortions. PPH-s point is not really a direct challenge, !ut #ore of a setup for other argu#ents under section $6).$5($')(j). "he focus of su!jection (j) is on the failure to consider a 9relevant and i#portant #atter: relating to the action in <uestion. "he argu#ent that the !oard-s process was irregular and ta8en too <uic8ly is not a failure to consider a 9relevant and i#portant #atter,: E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT $5
!ut is offered to show that the !oard-s haste in acting led to its failure to consider relevant and i#portant #atters relating to the proposed rule. @hile the court appreciates the point #ade !y PPH and has considered its clai#s in that conte0t, it is i#portant to re#e#!er that the ti#e spent on the deli!erative process was within the statutory re<uire#ents for the adoption of rules. "he purpose of the statute is to esta!lish standards for notice, pu!lic co##ent, and a deli!erative process. "he !oard received considera!le infor#ation and input fro# the pu!lic as part as the !oard co#plied with the statutory process. / Bven if the !oard usually ta8es #ore ti#e when adopting rules concerning standards of practice, the !oard-s co#pliance with the statute de#onstrates that the process was reasona!le fro# a notice and opportunity.to.!e.heard standpoint, a!sent so#e showing to the contrary. $. >ailure to consider past 9policy: concerning PPH-s tele#edicine a!ortion progra#. PPH first clai#ed that the !oard failed to consider 9its own past policy: concerning PPH-s tele#edicine a!ortion progra#. PPH clai#s that the !oard adopted a policy finding the progra# to !e safe when it investigated two PPH doctors in &'$' and did not i#pose disciplinary action. "he !oard responded with two argu#ents4 $) it did consider the prior action in &'$' (see )pp. 5() and &) the !oard adopted no policy in &'$'. "he !oard-s written state#ent regarding the rule shows that it did consider the &'$' investigation when deciding to adopt the rule. "he !oard stated that it had not previously adopted a rule or initiated a rule#a8ing process on tele#edicine #edical a!ortion services. "he !oard also stated that the !oard #e#!ership had co#pletely changed over the prior three years,
5 "he !oard also provided so#e additional notice not re<uired !y statute = it issued a press release setting the pu!lic hearing appro0i#ately a #onth !efore the hearing and it posted pu!lic co##ents to the proposed rule online for the pu!lic to see. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &'
giving the present !oard reason to consider the health and safety concerns with the practice. "he written state#ent de#onstrates co#pliance with the re<uire#ents in section $6).$5($')(j). "he !oard-s action in &'$' was not a 9policy: as argued !y PPH. "he Iowa )d#inistrative Procedures )ct defines a 9rule: as an 9agency state#ent of general applica!ility that i#ple#ents, interprets, or prescri!es law or policyF.G: Iowa *ode section $6).&($$). )n agency cannot rely on an agency state#ent of general applica!ility that i#ple#ents policy without going through the rule#a8ing process. %nderson v. +owa *ept of "uman Services, 2%3 C.@.&d $'(, $'3 (Iowa $53/). "he !oard did not adopt a rule on tele#edicine #edical a!ortion in &'$', nor did it even initiate a rule#a8ing process. "he !oard #ay have had any nu#!er of reasons for not proceeding with a disciplinary process after receiving co#plaints in &'$', !ut even if it dis#issed the co#plaints !ecause it considered PPH-s process to !e safe, that decision cannot !e considered to !e policy. "he rule under review in this action is the first atte#pt !y the !oard to set policy regarding a standard of care for #edical a!ortion. Bven if the !oard had previously adopted a policy or rule, there is nothing in the statute or governing law that would prevent it fro# reconsidering, revising, rescinding, or a#ending the rule. 1ne of the purposes of the statute allowing an interested person to petition for rule#a8ing is to see8 the repeal of a rule. See Iowa *ode section $6).6($). In fact, the legislature re<uires each agency to review its rules every five years to identify rules that are outdated, redundant, or inconsistent or inco#pati!le with statute or the agency-s own rules. Iowa *ode section $6).6($). )n agency clearly has the discretion and power to change any rule that it has previously enacted. "here was no prior rule governing #edical a!ortions !y tele#edicine, !ut even if there had !een, the !oard would have had the power to review and change it, just as future !oards will have the opportunity to review and consider changes or rescission of this rule. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &$
&. >ailure to consider standards for the practice of tele#edicine generally. PPH clai#ed that the !oard failed to consider its own policies and other policies favoring tele#edicine generally. "he !oard-s written state#ent shows that it did consider the i#pact the rule #ight have on tele#edicine services generally. ()pp. 5(.5/). "he !oard deter#ined that the rule was narrowly focused and would not prevent it fro# considering a !roader rule in the future. "his is not the first ti#e the !oard has adopted rules focusing on a narrow standard of practice. >or e0a#ple, the !oard has adopted a rule esta!lishing a standard of practice regarding pain #anage#ent. See %/2 I)* $2.&. "hat rule re<uires the physician to conduct a physical e0a#ination and co#prehensive #edical history prior to the initiation of treat#ent. %/2 I)* $2.&(/)(a). "his shows that the !oard has not singled out #edical a!ortions as the only procedure to re<uire a physical e0a#. %
>urther, as pointed out !y the !oard in its !rief, a physical e0a# is the nor# for the treat#ent of any type of #edical illness or condition, in that a patient #ust typically see a doctor !efore getting a prescription to treat conditions as routine as ear infections. "here is nothing in the record to show other conte0ts in which the !oard has either allowed or tolerated a practice of tele#edicine without any physical e0a# !y a physician. "he !oard-s rule cannot !e considered unreasona!le for not considering all possi!le uses of tele#edicine. 2./. "he !oard failed to loo8 at the actual facts of PPH-s tele#edicine progra#. PPH argued that the !oard failed to loo8 into the actual facts of PPH-s progra# and the role of PPH-s physicians within the progra#. PPH also argued that its progra# was as safe as other a!ortion services. "he court-s review of the pu!lic hearing, the !oard-s #inutes of the #eeting in which
6 "he !oard has adopted other specific standards of care in chapter $2 of its rules. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &&
it approved the rule, and the !oard-s written state#ent shows this is flatly not true. "here was considera!le de!ate at the pu!lic hearing a#ong PPH and other opponents of the rule, supporters of the rule, and the !oard itself regarding the need for a doctor to conduct an in.person physical e0a# of the patient !efore prescri!ing the #edication that would induce an a!ortion. "he !oard specifically referenced written state#ents and studies offered !y PPH at the pu!lic hearing. "he record shows that the !oard understood PPH-s protocol and reviewed studies su!#itted, !ut disagreed with PPH when setting the standard of practice. "he cru0 of the !oard-s decision to adopt the rule is that an in.person physical e0a#ination should !e done !efore prescri!ing a!ortion inducing drugs. "here are legiti#ate reasons to support the !oard-s decision. >irst, the !oard cited to various conditions that are ris8 factors for using #ifepristone and #isoprostol (such as ectopic pregnancy or undiagnosed adne0al #ass) and other conditions for which there is no data as to the safety or effectiveness of the drugs (such as hypertension or severe ane#ia). "he !oard cited to studies in which wo#en died due to the failure to diagnose ectopic pregnancy. "he !oard felt it i#portant to the health and safety of the pu!lic that the treating physician conduct a !asic in.person physical e0a# to e0clude the list of e0clusionary factors that have not !een dee#ed safe !y study. +econd, the !oard e0pressed concern with the <uality of the ultrasound perfor#ed to deter#ine the gestational age of the e#!ryo. 7nder either of the pri#ary protocols for use of #edical a!ortion, it is critical to deter#ine the gestational age !ecause the drugs are only safe is used early in the pregnancy = within forty.nine days of gestation under the >D).approved protocol and within si0ty.three days of gestation under the protocol used !y PPH. )lso, the !oard found that a !asic physical e0a# is needed in all cases to e0clude ris8 factors, and a pelvic E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &2
e0a# #ay !e needed in so#e cases to corro!orate ultrasound findings and properly deter#ine gestational age. )dditionally, the !oard found that an in.person e0a#ination #ay strengthen the patient. physician relationship. "he !oard found that a personal #eeting !etween physician and patient #ay reinforce the need to return for a follow.up e0a#ination, and thus increase the li8elihood of the follow.up e0a#. ) follow.up e0a# is re<uired under any of the pri#ary protocols for #edical a!ortion, including the protocol used !y PPH. "he !oard-s adoption of the rule is one that is precisely within the e0pertise of the !oard of #edicine and not one to !e decided !y the court. "he !oard includes seven physicians who are educated, trained, and e0perienced in the practice of #edicine. Iowa *ode section $(6.$(($)(!) see also Iowa *ode section $(%.$%($) (re<uiring each physician to have !een in practice for five years). "he !oard-s decision is supported !y the opinions of other physicians and health care professionals who testified at the pu!lic hearing and su!#itted docu#ents as part of the pu!lic record. "he petition for rule.#a8ing itself was signed !y five physicians. "he !oard-s decision is supported !y its reasoning that a physician needs to conduct a physical e0a#, which the !oard generally considers to !e 9the cornerstone of good #edical care.: ()pp. 5/). "he >D) standards also re<uire a physical e0a#ination. "he record shows that si0teen states have ta8en action to re<uire a physician to !e physically present !efore prescri!ing an a!ortion inducing drug. "he record does not show any state that has for#ally approved the #edical a!ortion !y tele#edicine protocol used !y PPH. PPH-s position that its protocol is safe and serves the welfare of the pu!lic also has support in the record, #ost significantly fro# the testi#ony and study perfor#ed !y Dr. Daniel E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &(
,ross#an. However, it is not for the court to review #edical studies and deter#ine which is the #ost persuasive. If it did so, it would !e su!stituting its judg#ent for that of the !oard of #edicine. "he only <uestion for the court is whether the !oard considered the infor#ation su!#itted !y PPH and other opponents of the rule. "he !oard clearly considered the infor#ation provided !y PPH, !ut disagreed with PPH-s opinions and ulti#ately deter#ined that the proposed rule !etter #et the !oard-s goal of protecting the safety and welfare of Iowans. %.3. "he rule will create a hardship for rural Iowa wo#en. PPH-s points si0 through eight are si#ilar will !e discussed as a group. PPH has !een a!le to provide #edical a!ortions at #ore clinics through tele#edicine, #a8ing #edical a!ortions #ore accessi!le to rural Iowa wo#en. @ithout the availa!ility of tele#edicine #edical a!ortions, PPH argued that wo#en will need to travel further, which will lead to delays, which, in turn, will increase ris8s. PPH argued that these o!stacles #ay lead #ore wo#en to illegal a!ortions. "his argu#ent is, once again, not a #atter of the !oard failing to consider PPH-s position, !ut disagreeing with it. "he !oard specifically considered the argu#ent that the rule would li#it rural Iowa wo#en-s access to #edical a!ortions. ()pp. 5(). "he !oard did not dispute that the rule would result in #edical a!ortions !eing conducted in fewer locations. ?ather, it responded !y finding that all wo#en in Iowa should !e entitled to the sa#e high level of health care, whether they live in rural or ur!an Iowa. "he !oard found that the rule !est protects all patients- health and safety. "he !oard-s reasoning is not unreasona!le and #ust !e granted deference !y the court. 5. "he !oard ignored !asic facts a!out the >D) approval process. Ce0t, PPH argued that the !oard did not consider facts regarding the >D) approval process. "here is no E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &/
evidence to suggest that the !oard ignored evidence su!#itted regarding the >D) approval process. In fact, the proposed rule would not prohi!it so#e aspects of PPH-s protocol, such as the si0ty.three day ti#efra#e to use #ifepristone and #isoprostol in co#!ination. "he >D) has only approved a protocol up to forty.nine days of gestation, !ut the !oard-s rule does not li#it #edical a!ortions to forty.nine days. "he rule would allow wo#en to receive a #edical a!ortion within si0ty.three days of gestation if they #eet the physical e0a# re<uire#ent and other re<uire#ents of the rule. $'.$$. 7se of office staff to perfor# e0a#s. PPH-s final point is that so#e aspects of a physical e0a#, such as vital signs and ultrasounds, are routine tas8s fre<uently perfor#ed !y nurses and #edical assistants. PPH clai#ed that it provided infor#ation to show staff #e#!ers were <ualified to perfor# ultrasounds. "he !oard did e0press so#e of those concerns, !ut its concerns went deeper than whether *M)s could perfor# ultrasounds. 6 )gain, the !oard-s central concern was that a doctor !e present to conduct a physical e0a# !efore the a!ortion. "he !oard considered the infor#ation provided !y PPH, !ut ca#e to a different conclusion as to the re<uired standard of practice. ". Not re>+ired -7 0a6 and ne/ati!e i1#a,t 9 Se,tion 4:A.4);4%<;.< PPH-s second clai# is under Iowa *ode section $6).$5($')(8), which allows reversal if the agency-s action is4 FnGot re<uired !y law and its negative i#pact on the private rights affected is so grossly disproportionate to the !enefits accruing to the pu!lic interest fro# that action that it #ust necessarily !e dee#ed to lac8 any foundation in rational agency policy.
6 +usan "hayer, the for#er long.ti#e PPH e#ployee who testified at the !oard-s pu!lic hearing, stated that she was told that she would !e e0pected to perfor# ultrasounds, even though she was a center #anager and had no #edical training at all. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &%
+u!section (8) is one of the su!sections which Professor onfield descri!ed as a #ore structured version of the unreasona!le, ar!itrary, capricious, and a!use of discretion standard that was previously part of chapter $6). )ccordingly, PPH-s clai# under this section will !e reviewed with that standard in #ind. See :iec#ler v. %mpride, 6(2 C.@.&d /2', /2&.22 (Iowa &''6) (applying the unreasona!le, ar!itrary, capricious, or a!use of discretion standard to a clai# #ade under su!section (8)). "his argu#ent a#ounts to a reiteration of points #ade a!ove. PPH argued that the rule serves no pu!lic health !enefit and would deprive accessi!le, safe, and early a!ortion services to hundreds of Iowa patients per year. However, !oth points are a #atter of de!ate. "he !oard deter#ined that a physical e0a# was i#portant to protect Iowa patients, and in doing so, disagreed with PPH-s argu#ent that its protocol was just as safe. "he !oard did not dispute that the rule #ight result in the PPH closing clinics, and thus #a8e access to #edical a!ortions less convenient to Iowans in those areas. Instead, the !oard found that the !enefits of providing a higher standard of practice outweighed the convenience factor. @hile a!ortion #ay not !e convenient and #ay cost #ore #oney due to driving distance, the rule would not deprive Iowa patients of #edical a!ortions. )t the very least, the court cannot find that the negative i#pact of the !oard-s rule is so grossly disproportionate to the !enefits accruing to the pu!lic interest that it #ust necessarily !e dee#ed to lac8 any foundation in rational agency policy. C. I1#ro#er #+r#oe 9 Se,tion 4:A.4);4%<;e<. PPH ne0t argued that the !oard-s decision to adopt the rule should !e reversed under Iowa *ode section $6).$5($')(e), which allows court action if the agency action is4 E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &6
FtGhe product of decision #a8ing underta8en !y persons who were i#properly constituted as a decision.#a8ing !ody, were #otivated !y an i#proper purpose, or were su!ject to dis<ualification.
Professor onfield offered no real e0planation for new su!section (e), other than (d) and (e) were 9!eneficial, clarifying ela!orations: of original sections $6).$5(3)(d) and (e). "hose original su!sections si#ply per#itted reversal when (d) #ade upon unlawful procedure, or (e) affected !y other error of law. +owa ;arm )ureau ;ederation v. .nvironmental Protection Commn, &'$( @H 2266'6&, II C.@.&d III, n. 3 (Iowa July $$, &'$(). In +owa ;arm )ureau, the Iowa +upre#e *ourt considered a challenge to rule#a8ing under su!section (e). "he plaintiff o!jected to a rule adopted !y the Iowa Bnviron#ental Protection *o##ission (BP*), in part, !ecause one of the co##ission #e#!ers appointed !y ,overnor *ulver was e#ployed !y a nonprofit environ#ental organiAation and had ta8en an advocacy position on the su!ject #atter of the proposed rules. +d. at &. In fact, as part of her full.ti#e jo!, the co##ission #e#!er had developed proposed rules that were presented to the agency as part of a petition for rule#a8ing, and she was active in pushing the agency to initiate the rule#a8ing process. "he co##ission #e#!er was recogniAed as a lead person a#ong environ#ental groups advocating for the rule proposed in the petition. "he court held that su!section (e) was generally intended to 9incorporate general conflict. of.interests standards and ena!le judicial develop#ent of these standards.: +d. at J3. I#portant to this case, the court found that the standard for judging conflicts of interest in a rule#a8ing conte0t are #uch #ore lenient than judging conflicts in the judicial setting of a contested case. +d. at J$'.$$. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &3
"he court started !y generally recogniAing the a!ility of the governor to develop policy within the e0ecutive !ranch through the appoint#ent of !oard and co##ission #e#!ers with co#pati!le views4 F)G governor, as the top.elected representative of the people, has always had the a!ility to shape the overall perspective and direction of co##issions through the power of appoint#ent. "hus, the 9political considerations: e0cluded fro# the appoint#ent process !y statute do not nor#ally e0tend to the a!ility of a governor to appoint *o##ission #e#!ers who have particular views a!out su!jects e0pected to co#e !efore the *o##ission that #ay !e consistent with the views of the ,overnor or the political party of the ,overnor. Instead, this concept reflects the !asic nature of governing through pu!lic elections and is deeply e#!edded within the e0ecutive and legislative !ranches of govern#ent.
+d. at J/.%. )gency decision.#a8ers #ust 9consider in good faith, and to o!jective evaluate, argu#ents presented to the#; agency officials, however, need not !e su!jectively i#partial.: +d. at J$/ (cites o#itted). >avoring a specific rule over another is not a !asis for dis<ualification a!sent evidence that the #e#!er-s view 9could not !e changed !y the rule#a8ing proceedings that were to follow.: +d. "he court esta!lished the following standard in considering challenges to rule#a8ing !ased on an i#proper purpose clai#4 we thin8 a district court #ay vacate a rule#a8ing on the ground of !ias upon no less than a showing !y clear and convincing evidence that the ad#inistrator has underta8en the agency action with an 9unaltera!ly closed #ind,: there!y #a8ing their action 9#otivated !y an i#proper purpose.
+d. "o e#phasiAe the difficulty in #eeting this standard, the court cited to a federal decision finding that no court had ever, under any standard, dis<ualified an agency ad#inistrator fro# participating in an infor#al rule#a8ing process !ased on !ias. +d. at $% citing 3ead +ndustries %ssociation$ +nc. v. .nvironmental Protection %gency, %(6 >.&d $$2' (D.*. $53'). )pplying E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT &5
these standards, the court found that the BP* #e#!er was not dis<ualified fro# approving the rule notwithstanding her prior research and advocacy on the sa#e issues. +d. at $6. PPH-s pri#ary argu#ent focused on the role of !oard #e#!er Monsignor >ran8 ognanno. 1n )ugust &', &'$', prior to his appoint#ent to the !oard, Monsignor ognanno sent a letter to the !oard as8ing it to ta8e action to end tele#edicine a!ortions. ()pp. /%'). His letter centered on the protection of a 9pre.!orn child,: and not the standard of care to conduct #edical a!ortions. >ollowing the petition for rule#a8ing in &'$2, now as a !oard #e#!er appointed !y ,overnor ranstad, Monsignor ognanno sent e#ails to !oard #e#!ers with attach#ents that supported adoption of the rule. ()pp. /%$.%$&). "he attach#ents include infor#ation fro# PPH sources, other articles, and so#e personal stories regarding #edical a!ortion. Bach of the attach#ents concerned #edical a!ortions, and not just a!ortion generally. Monsignor ognanno voted to accept the petition for rule#a8ing and to adopt the proposed rule. In his pu!lic co##ents during the adoption of the rule, Monsignor ognanno focused on the standard of #edical care and not his !eliefs on a!ortion generally. ()pp. /$5). "here is very little difference !etween Monsignor ognanno-s actions and that of the BP* #e#!er in the +owa ;arm )ureau case. oth cases involve individuals who too8 a position on an issue prior to joining the agency, pushed and advocated for the rule consistent with their prior position, and voted for adoption. In so#e ways, the co##issioner #e#!er in +owa ;arm )ureau was #ore involved prior to joining the co##ission !ecause she had drafted a petition for rule#a8ing that ulti#ately led to adoption of a rule that was closely aligned with that view. "he one concern here, in co#parison to +owa ;arm )ureau, is that the statute governing the BP* not only re<uires five of its #e#!ers to !e actively engaged in delineated practice areas, !ut all #e#!ers to have 8nowledge of the su!jects e#!raced !y the agency-s governing laws. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 2'
+d. at / citing to Iowa *ode section (//).%($). "he statute governing the !oard-s #e#!ership re<uires seven physician #e#!ers, !ut sets no re<uire#ents for the three pu!lic #e#!ers. Monsignor ognanno is one of the pu!lic #e#!ers. +o, while BP* #e#!ers could !e e0pected to arrive with so#e preconceived ideas on policy issues relative to the #ission of the agency !ased on their 8nowledge of the su!ject area, the sa#e would not necessarily hold true of pu!lic #e#!ers on the !oard of #edicine. >urther, Monsignor ognanno-s opposition to a!ortion went !eyond issues of standards of #edical care that are the province of the !oard. )fter considering the entire record, the court cannot find Monsignor ognanno engaged in an i#proper purpose !ased on the high standard set !y the Iowa +upre#e *ourt in +owa ;arm )ureau. Monsignor ognanno #ay oppose all a!ortion, !ut the record de#onstrates that he focused his attention on #edical a!ortion and the applica!le standard of care. "he #aterials he sent to other !oard #e#!ers focused on #edical a!ortion, and his pu!lic co##ents were li#ited to the standard of care for #edical a!ortion. Bven though he #ight personally choose #ore li#its or even a total !an on a!ortion, the rule he supported does not !an a!ortion in general, nor does it !an #edical a!ortion specifically. His vote in favor of the rule was supported !y seven other !oard #e#!ers including si0 of the seven physician #e#!ers. "here is not clear and convincing evidence to show that Monsignor ognanno-s participation in the adoption of the rule was i#proper as defined !y the Iowa +upre#e *ourt. PPH also argued that the petition for rule#a8ing was i#proper !ecause it was supported !y individuals who see8 a total !an on a!ortion. "he i#proper purpose provision is directed at the decision.#a8er, and not the intent of the individuals who re<uest agency action. @hatever the intent of the individuals who see8 the rule#a8ing, the court #ust focus on the action ta8en !y the agency, and not that of the parties see8ing rule#a8ing. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 2$
D. PPH3 ,ontit+tiona0 ,0ai1. Federa0 ,ontit+tion ,0ai14 PPH-s final clai# is that the !oard-s rule violates the due process and e<ual protection clauses of the Iowa and 7nited +tates *onstitutions. "he standard for evaluating the federal constitutional clai#s is set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, /'/ 7.+. 322, 363.65 ($55&). In Casey, the court reaffir#ed the central holding of Roe v. Wade that the +tate #ay not prohi!it any wo#an fro# #a8ing the ulti#ate decision to ter#inate her pregnancy !efore via!ility. +d. "o protect the central right recogniAed !y Roe while at the sa#e ti#e acco##odating the +tateDs profound interest in protecting potential life, the court adopted an 9undue !urden analysis.: +d. )n undue !urden e0ists, and therefore a provision of law regulating a!ortion is unconstitutional, 9if its purpose or effect is to place a su!stantial o!stacle in the path of a wo#an see8ing an a!ortion !efore the fetus attains via!ility.: +d. "he court recogniAed that, 9FaGs with any #edical procedure, the +tate #ay enact regulations to further the health or safety of a wo#an see8ing an a!ortion.: +d. However, 9FuGnnecessary health regulations that have the purpose or effect of presenting a su!stantial o!stacle to a wo#an see8ing an a!ortion: #ay a#ount to an undue !urden. +d. "he Casey court considered five provisions of Pennsylvania law under the undue !urden standards. 1ne of the provisions re<uired that, e0cept in a #edical e#ergency, a physician #ust, at least twenty.four hours !efore perfor#ing an a!ortion, infor# the patient of the nature of the procedure, the health ris8s of a!ortion and child!irth, and pro!a!le gestational age of the un!orn child. +d. at 33$. "he plaintiff clai#ed that the twenty.four hour waiting period i#posed an undue !urden on wo#en see8ing an a!ortion !ecause so#e wo#en #ust travel a long distance to E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 2&
an a!ortion provider, and the necessity of #a8ing two trips to a physician would result in delays and cause the# to incur additional financial and e#otional costs. +d. at 33%. "he court accepted the argu#ent that the waiting period would have the effect of increasing the cost and ris8 of delay of a!ortions, !ut did not find that the waiting period a#ounted to a su!stantial o!stacle to a!ortion. "he court specifically rejected the clai# that a wo#an has a right to a!ortion on de#and. +d. at 336. "he court found that the twenty.four hour waiting period did not violate due process. In 2on5ale5 v. Carhart, //' 7.+. $&(, $/3 (&''6), the court added to the undue !urden analysis that restrictions on a!ortions #ust also pass rational !asis review. See Planned Parenthood of 2reater Te&as v. %bbott, 6(3 >.2d /32, /5' (/ th *ir. &'$(). "he %bbott court rejected Planned Parenthood-s argu#ent that a strict scrutiny test should !e used. +d. "he rational !asis test only re<uires the court to consider whether there is a reasona!le fit !etween the govern#ent interest and #eans utiliAed to advance that interest. 9ing v. State, 3$3 C.@.&d $, 2& (Iowa &'$&). In %bbott, Planned Parenthood challenged two provisions passed !y the "e0as legislature. "he first re<uired physicians who perfor# or induce a!ortions to have ad#itting privileges at a hospital no #ore than thirty #iles fro# the location the a!ortion is perfor#ed. %bbott, 6(3 >.2d at /36. "his was e0pected to reduce the nu#!er of locations at which a!ortions could !e provided. "he second provision re<uired #edical a!ortions to !e perfor#ed in co#pliance with the >D) protocol. +d. In upholding the "e0as law, the %bbott court found no undue !urden to the ad#itting privileges re<uire#ent even though the change in law #ay re<uire patients to increase travel !y E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 22
up to $/' #iles to o!tain an a!ortion. "he court cited the district court-s decision in Casey, which found that wo#en in si0ty.two of Pennsylvania-s si0ty.seven counties were re<uired to travel at least one hour and so#eti#es longer than three hours to o!tain an a!ortion fro# the nearest provider. +d. at /53 citing to Casey, 6(( >.+upp. $2&2, $2/& (B.D.Pa. $55'). "he +upre#e *ourt found no undue !urden in Casey, even though the twenty.four hour waiting period re<uired #ost wo#en to #a8e two trips. "o put the #atter in perspective, the court noted that, !ecause only thirteen of "e0as- &/( counties had a!ortion facilities !efore the change in law, any o!stacles created did not su!stantially alter the access to a!ortion services co#pared with access prior to enact#ent. +d. at /56. "he court li8ewise found no undue !urden to the #edical a!ortion provision. Planned Parenthood argued that the law i#posed an undue !urden on wo#en see8ing an a!ortion of fetuses with an age !etween fifty and si0ty.three days !ecause #edical a!ortion would !e prohi!ited. "he court rejected that clai#, noting that the "e0as law did not !an an entire a!ortion #ethod, !ut rather, shortened the window during which a wo#an #ight choose a #edication a!ortion. +d. at %'(. "he court reiterated the holdings fro# Casey and 2on5ale5 that discouraged facial constitutional attac8s on statutes (or in this case, an ad#inistrative rule) !ecause there is often too little evidence to show that a particular condition has occurred or is li8ely to occur. +d. at %'(. "here is no dispute that i#ple#entation of the !oard-s rule will reduce the locations at which a!ortions are provided. PPH currently has facilities in four cities that offer surgical and #edical a!ortions4 ettendorf, Des Moines, Iowa *ity, and +iou0 *ity. (Meadows affidavit; )pp. /5$). It offers tele#edicine #edical a!ortions in ten locations, although two (7r!andale and a second Des Moines location) are in Pol8 *ounty. Dr. Meadows of PPH stated in her E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 2(
affidavit that PPH would close the ten tele#edicine locations if the rule goes into effect, thus leaving only four PPH locations to provide a!ortion services. )s an e0a#ple, a wo#an fro# *reston or ?ed 1a8, who can presently o!tain a tele#edicine a!ortion in her ho#e town, would have to drive to *ouncil luffs or Des Moines to o!tain an a!ortion fro# a PPH provider. @hile i#ple#entation of the rule will result in longer travel ti#es and additional costs for so#e wo#en who see8 a!ortions, there is no undue hardship under the +upre#e *ourt-s test. "he courts have already found that travel distances of $/' #iles or travel ti#e of three hours are not undue !urdens. "here is no indication that any wo#an in Iowa would have a longer travel ti#e than that approved in Casey. )lso, PPH-s argu#ent does not consider that other a!ortion providers have !een availa!le in Iowa. Prior to PPH !eginning its tele#edicine protocol in late &''3, there were eleven providers in Iowa offering a!ortion services in nine counties. ()pp. //(.//). "he location of the other providers was not listed in the record, !ut the other providers necessarily operated in so#e counties not serviced !y PPH. "herefore, the cost and distance argu#ent is not as dire as portrayed !y PPH. )nd while nine of ninety.nine counties #ay see# s#all, the proportion of counties offering providers was greater in Iowa than "e0as, in which only thirteen of &/( counties had providers, and Pennsylvania, in which only five of si0ty.seven counties had providers. "he !oard-s rule is li8ewise supported !y a rational !asis. )s discussed a!ove, the !oard is authoriAed to adopt a standard of practice, and it did so in this instance on rational grounds. "he rule does not prevent PPH or any other a!ortion provider fro# offering #edical a!ortions, !ut si#ply re<uires an in.person physician e0a#ination as the center of its standard of practice. "he rule li8ewise does not prevent PPH fro# using its protocol up to si0ty.three days of gestation, even though not co#pliant with the protocol approved !y the >D). "he rule E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 2/
constitutes a reasona!le fit !etween the !oard-s interest in protecting the safety and welfare of patients, and the #eans utiliAed to advance that interest. PPH also #ade an e<ual protection clai#. "ypically, when the rational !asis test is involved, the court evaluates that !asis si#ilarly for e<ual protection and due process purposes. 9ing v. State, 3$3 C.@.&d $, 2& (Iowa &'$&). However, as pointed out !y the !oard in its !rief, the clai# is difficult to evaluate !ecause PPH has not precisely defined the groups it clai#s has !een treated differently, a #ust for an e<ual protection evaluation. "o any e0tent PPH clai#s that the !oard-s rule has violated e<ual protection !ecause tele#edicine a!ortion is treated differently than other tele#edicine, such a facial challenge #ust !e rejected for reasons discussed in 2on5ale5. "here is no evidence indicating to what e0tent the !oard allows tele#edicine in other conte0ts, so there is no #eans to evaluate a !road e<ual protection clai#. State ,ontit+tion ,0ai14 PPH finally argued that the rule violates Iowa constitutional provisions relating to due process and e<ual protection. "he Iowa and federal constitutions have generally, throughout the history of this +tate, !een construed si#ilarly. See e.g. )owers v. Pol# County )oard of Supervisors, %23 C.@.&d %3&, %35 (Iowa &''&) (9FwGe usually dee# the federal and state e<ual protection clauses to !e identical in scope, i#port, and purpose.:). PPH argued that the court should consider the Iowa constitutional clai#s !y applying a higher standard, citing to the Iowa courts a!ility to e#ploy a different analytical fra#ewor8 to 9independently apply the federally for#ulated principles.: (PPH !rief at &/). PPH-s argu#ent has so#e support in the case law. "he concept that the Iowa courts can interpret the Iowa constitution differently than the 7nited +tates +upre#e *ourt has interpreted the federal constitution was recently advanced !y the Iowa +upre#e *ourt-s decision in Racing E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 2%
%ssociation of Central +owa v. ;it5gerald, %6/ C.@.&d $ (&''() (hereinafter, R%C+). In R%C+, the Iowa +upre#e *ourt found a ta0 statute unconstitutional under the federal and state e<ual protection clauses. "he +tate successfully sought certiorari to the 7nited +tates +upre#e *ourt, which reversed in a unani#ous decision. "he case ca#e !ac8 to the Iowa +upre#e *ourt to decide the Iowa constitutional clai#. "he court used the sa#e constitutional test to decide the Iowa clai#, !ut again found the statute unconstitutional, even though the 7nited +tates +upre#e *ourt had found the sa#e statute constitutional using the sa#e test in the sa#e case. "he approached used !y the #ajority in R%C+ has !een criticiAed. Justice *ady, in dissent, while recogniAing that state courts have a role in protecting individual rights not recogniAed !y the federal courts, stated that the doctrine of independent interpretation cannot !e used to justify a decision that conflicts with the 7nited +tates +upre#e *ourt in every instance. +d. at $6.$3. Justice @ater#an, who was appointed to the court following R%C+, has stated that R%C+ should !e overruled as 9plainly erroneous.: <west Corp. v. +owa State )oard of Ta& Review, 3&5 C.@.&d //', /%% (Iowa &'$2) (@ater#an, J., concurring). In 9ing, a #ajority of the court ruled that R%C+ has 9not !een the death 8nell for traditional rational !asis review,: thus see#ingly li#iting the application of the R%C+ decision in future cases involving a rational !asis review. 3$3 C.@.&d at 2'. Cotwithstanding these criti<ues of R%C+, the Iowa +upre#e *ourt has continued to e#ploy the concept of interpreting the Iowa *onstitution differently than decisions interpreting the 7nited +tates *onstitution in cases involving #ore highly protected civil rights. In (arnum v. )rien, 6%2 C.@.&d %3& (Iowa &''5), the court found an Iowa #arriage statute unconstitutional under the e<ual protection clause of the Iowa *onstitution !ecause it denied #arriage !etween individuals of the sa#e se0. "he court reviewed the history of Iowa courts !eing on the forefront E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 26
of recogniAing and protecting various civil rights, often !efore the federal courts or the courts of other states. +d. at 366.63. "he (arnum decision has served as a lead decision as other states and federal courts considered si#ilar challenges to sa#e.se0 #arriage. )s recently as July $3, &'$(, the court, in a four.to.three decision, reversed a cri#inal conviction under the warrants clause of the Iowa *onstitution, notwithstanding a unani#ous &''$ 7nited +tates +upre#e *ourt decision to the contrary. State v. Short, &'$( @H 2/26'&5, II C.@.&d II (Iowa &'$(). >ollowing a lengthy review of the Iowa and federal lines of cases, the court stated its disagree#ent with the trend of 7nited +tates +upre#e *ourt decisions, and declined to overrule an Iowa case that was inconsistent with the #ore recent 7nited +tates +upre#e *ourt decisions. Cow.*hief Justice *ady specially concurred to 9e#phasiAe the i#portance of independently interpreting our Iowa *onstitution.: +d. at 2$. "his approach does create challenges at the district court level when faced with a clai# under the Iowa *onstitution and one party presents a see#ingly controlling 7nited +tates +upre#e *ourt decision. However, this does not appear to !e an instance that calls for a different evaluation under the Iowa *onstitution. "he undue !urden standard has !een in place at the federal court level for twenty.two years since Casey was announced in $55&. "here is no co#para!le line of cases at the +tate level. "he court could only find one reference to Casey in an Iowa appellant court decision, and that was #erely a footnote in War .agle (illage %partments v. Plummer, 66/ C.@.&d 6$(, n.2 (Iowa &''5). )s pointed out !y PPH, there is a reference in Sanche5 v. State, %5& C.@.&d 3$&, 3&' (Iowa &''/) to a!ortion !eing a funda#ental right, !ut the reference was in passing and not central to the holding to the case, which involved a challenge to the denial of a driver-s license to illegal aliens. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 23
"he lac8 of any parallel state case law e0perience to the federal line of cases is i#portant when considering whether the due process clause of the Iowa *onstitution should !e utiliAed to develop a different standard fro# Casey. Casey itself was announced nineteen years after Roe, so the federal courts now have #ore than forty years of e0perience in applying the challenging !alancing test discussed in that line of cases. In contrast, cases such as R%C+ and Short involved issues that were co##only decided in Iowa courts, so Iowa courts at least had so#e conte0t to consider the possi!ility of alternative tests. (arnum too involved fa#iliar principles of e<ual protection, !ut (arnum is different !ecause Iowa was on the forefront of jurisdictions considering challenges to statutes prohi!iting sa#e.se0 #arriage. Moreover, the reasoning in (arnum is hardly trou!ling fro# a constitutional standpoint, as there is little <uestion in hindsight that the result would have !een any different if the court had decided the case under the federal e<ual protection clause. Iowa courts are certainly fa#iliar with su!stantive due process clai#s in other conte0ts, !ut this court is not inclined to deviate fro# the co#ple0 constitutional !alancing tests set forth in Casey and 2on5ale5. 3 7nli8e (arnum and other cases cited in (arnum where Iowa courts played a leading role on i#portant constitutional issues, the para#eters governing legaliAed a!ortion in this country were led !y the 7nited +tates +upre#e *ourt through its decision in Roe v. Wade, and refined !y the decisions that followed. "here is no reason to deviate fro# the standards set !y the federal courts. "herefore, PPH-s clai#s under the Iowa *onstitution #ust !e denied for the sa#e reasons which the federal constitutional clai#s are denied.
8 ?ecent Iowa decisions considering su!stantive due process clai#s follow the federal standards. 9ing, 3$3 C.@.&d at 2$.2&; "orsfield ,aterials$ +nc. v. City of *yersville, 32( C.@.&d (((, (/3./5 (Iowa &'$2). E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT 25
RULIN* "he clai#s #ade in the petition for judicial review are here!y denied. "he !oard-s rule set forth at %/2 I)* $2.$' is upheld as valid. "he stay previously put in place !y the court on Cove#!er /, &'$2 is lifted, effective 2' days fro# the date of this ruling, a!sent any stay granted !y this court or the Iowa +upre#e *ourt. )ll costs are assessed to petitioners. E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT State of Iowa Courts Type: OTHER ORDER Case Number Case Title CVCV046429 PLANNED PARENTHOOD V. IOWA BOARD OF MEDICINE So Ordered Electronically signed on 2014-08-18 16:13:11 page 40 of 40 E-FILED 2014 AUG 18 4:13 PM POLK - CLERK OF DISTRICT COURT