The Iowa Board of Medicine has unanimously approved a new version of administrative rules related to a near-total abortion ban Republicans hope to enforce in the future.

The law, known as House File 732, is currently enjoined under a Polk County District Court order, which the state has appealed. If the Iowa Supreme Court eventually allows the ban to go into effect, the administrative rules would provide some guidance to physicians on how to approach the law’s (mostly unworkable) exceptions.

The revisions approved during a February 15 teleconference meeting address some objections physicians raised when the board discussed the rules in November and January. However, they do not change the reality that the rules don’t match how doctors normally interact with patients seeking to terminate a pregnancy.

BACKGROUND

Republican lawmakers approved and Governor Kim Reynolds signed House File 732 last July. The law would prohibit almost all abortions after fetal cardiac activity could be detected. That often occurs around six weeks, before many people know they are pregnant.

The Board of Medicine’s duties include defining the scope of medical practice and disciplining physicians. The governor appoints the board members, subject to Iowa Senate confirmation by a two-thirds vote.

Iowa law calls for the Board of Medicine to have ten members, with no more than half having any one political affiliation. Currently, the board has five Republicans, three independents, and two unfilled positions. (This isn’t the only example of Reynolds leaving positions vacant on important state boards that have no Democratic representation.)

House File 732 doesn’t threaten doctors with criminal penalties but calls on the Board of Medicine to adopt rules to administer its provisions. In November, Bleeding Heartland flagged several problems with the first draft of the administrative rules. This document, provided by the Iowa Department for Inspections, Appeals, and Licensing, shows the current version, with all changes “redlined” to make them easier to spot.

RULES STILL FULL OF NON-MEDICAL TERMINOLOGY

Administrative rules tend to track statutory language closely, and these are no exception. Like House File 732, the rules repeatedly refer to a “fetal heartbeat,” which is a misnomer. An ultrasound can pick up electrical activity before an embryo becomes a fetus (around eight weeks), and before chambers of the heart develop (around ten weeks). According to the American College of Obstetricians and Gynecologists, “Until the chambers of the heart have been developed, it is not accurate to characterize the embryo or fetus’s cardiac development as a heartbeat.”

The rules also repeatedly mention the “unborn child.” During board meetings in November and January, several physicians noted that’s a non-medical term, which would not normally be found in medical records. They asked whether the rules could employ terms doctors would use (embryo or fetus) instead.

Chief Deputy Attorney General Leif Olson, who led the working group that drafted the administrative rules and the revisions, responded during the January 12 meeting, “I don’t think the board probably has the power to do that. I think the legislature has defined it, and that’s the definition that the board needs to stick with.”

The revised rules add a new line to the definitions section: “f. ‘Unborn child’ means an individual organism of the species homo sapiens from fertilization to live birth—that is, at all stages of development, including embryo and fetus.”

Physicians had also questioned the use of the word “woman” throughout the rules, since many children who have not reached the age of majority become pregnant. Some suggested using the word “female” patient, or defining “woman” to include a minor child. Since House File 732 uses the word “woman,” the revised rules now contain the following line: “‘Woman’ means a female individual regardless of her age.”

Incidentally, a different Iowa Code section regulating abortion states that “the woman’s age” cannot be a factor that makes a situation a “medical emergency,” which would justify an abortion. During the special legislative session last July, Republicans voted down amendments offered in the Iowa House and Senate that would have added an exception covering all patients age 12 or younger, or all patients under age 16.

RULES CLEANED UP ULTRASOUND LANGUAGE

When Republicans drafted House File 732, they copied Iowa’s 2018 abortion ban nearly verbatim, rather than consulting with physicians to make the language more medically accurate. One of the biggest tells was the passage that reads, “In testing for a detectable fetal heartbeat, the physician shall perform an abdominal ultrasound, necessary to detect a fetal heartbeat according to standard medical practice […].”

Naturally, the draft administrative rules also called for an “abdominal ultrasound.” They went on to state, “At minimum, the ultrasound shall examine the full region of the woman’s body between the chest and pelvis, including the side flanks between the rib cage and hips.”

Public commenters from the medical community as well as members of the Board of Medicine objected to the wording. Dr. Robert Donnelly, the only OB/GYN currently serving on the board, pointed out during the January meeting that this kind of abdominal ultrasound would require the physician to look at the patient’s spleen, kidneys, gall bladder, aorta, and so on. None of that is “necessary to establish whether there’s a fetal heartbeat or not,” he said.

Olson acknowledged that at an early stage of pregnancy, most doctors would use a trans-vaginal ultrasound. But he said the board could not put “trans-vaginal ultrasound” in the rules, because the statute specifies “an abdominal ultrasound.”

Someone suggested rewriting the rules to refer only to “standard medical practice,” without specifying the type of ultrasound. But Donnelly speculated that obstetricians might interpret that phrase to include a vaginal probe ultrasound, which the legislature apparently did not intend. “When you order an abdominal ultrasound, it’s basically from the belly button up. And when you order a pelvic ultrasound, it’s from the belly button down. […] So you have to be specific when you’re talking about these things,” he added.

Donnelly advised revising the rules to require “a trans-abdominal pelvic ultrasound.” The current version incorporates that suggestion.

RAPE, INCEST PROVISIONS STILL REQUIRE MEDICALLY IRRELEVANT INFORMATION

House File 732 nominally includes exceptions for rape and incest, but those apply only to certain patients who report a rape within 45 days or incest within 140 days to law enforcement or a health care provider. Since many victims of sexual assault or abuse never report the offense, the administrative rules spell out the information doctors need to collect in order to decide whether those provisions apply.

During the Board of Medicine’s January meeting, several physicians, including Donnelly and Dr. Vickie Pyevich, expressed concerns about potentially intrusive questions the rules seemed to mandate. The original document read that when determining whether a pregnancy was the result of rape or incest, the physician “must gather the following information from the woman seeking an abortion.” They said that read like a checklist of things doctors are required to ask patients. Donnelly confirmed that OB/GYNs would not normally ask patients about specific circumstances surrounding the pregnancy.

The revised rules say physicians who intend to perform an abortion in cases of rape or incest “must use the following information,” clarifying, “This rule does not prescribe the manner in which the physician is to obtain this information.” That was enough to satisfy the board members.

But the rules still require physicians to document details that would not be part of a typical medical appointment, such as finding out the date of the sex act that caused the pregnancy (a victim of rape or incest might not know), or clarifying whether the perpetrator was a “closely related person” (and therefore committed incest).

The rules allow physicians to rely on “a good-faith assessment that the information is true,” but also say, “This information and its source shall be documented in the woman’s medical records.” That covers situations where a parent or guardian may be speaking on behalf of a pregnant child or adult with developmental disabilities.

The new rules didn’t change the definition of “closely related persons” that implicate the incest exception: “must be related, either legitimately or illegitimately, as an ancestor, descendant, brother or sister of the whole or half blood, aunt, uncle, niece, or nephew. For purposes of this rule, a closely related person includes a stepparent, stepchild, or stepsibling, including siblings through adoption.”

As Bleeding Heartland previously noted, that definition fails to cover lots of people who may abuse a child, such as a neighbor, caregiver, coach, clergy, or parent’s intimate partner who is not a stepparent. A child raped by a non-relative wouldn’t be able to obtain an abortion unless they reported within the 45-day window allowed for rape victims. Many children would not be aware of a pregnancy until well after that point.

The rules initially defined “the pregnancy is the result of a rape” as “a circumstance in which the pregnancy is the result of conduct that would be a prosecutable offense” under Iowa’s criminal code sections on sexual abuse.

When the Iowa legislature’s Administrative Rules Review Committee first discussed the rules on January 8, Democratic State Representative Rick Olson, who does some criminal defense work, asked about the term “prosecutable,” which isn’t defined elsewhere in the rules. Chief Deputy Attorney General Olson said it meant “capable of being prosecuted.”

Aren’t all cases “capable of being prosecuted,” the lawmaker asked. The chief deputy attorney general said there would have to be “sufficient underlying facts” to justify an indictment.

The working group changed that phrasing to say “conduct that would constitute an offense” under those code sections, “regardless of where the conduct occurred.” Leif Olson explained during the February 15 board meeting that the idea was to make sure the exception applied even if the rape or incest happened outside Iowa. (Such crimes would not be “prosecutable” in Iowa; they would be prosecuted where the offense occurred.)

“FETAL ABNORMALITY” EXCEPTION WOULD REMAIN LARGELY UNUSABLE

In many states with abortion bans in place, women have been forced to continue doomed pregnancies, at the risk of their own health or fertility. Iowa Republicans have denied their law would harm women that way, because House File 732 allows abortion if, before the 20-week mark, “The attending physician certifies that the fetus has a fetal abnormality that in the physician’s reasonable medical judgment is incompatible with life.”

That will put abortion out of reach for some patients, since many serious fetal anomalies are not diagnosed until a 20-week ultrasound or later.

The administrative rules put up more roadblocks. Doctors would need to document in the patient’s medical file “the diagnosis of the abnormality,” the basis for that diagnosis, and a “description of why the abnormality is incompatible with life.” As Bleeding Heartland previously explained, many fatal conditions don’t cause instant death outside the womb, but involve an infant suffering for hours or days after birth. Sometimes reasonable physicians may disagree about whether a certain condition is “incompatible with life.”

Members of the Board of Medicine didn’t request any revisions to this language, so the current draft leaves them unchanged.

When the Administrative Rules Review Committee discussed the draft rules in January, State Senator Nate Boulton zeroed in on another part of this section, which reads, “The diagnosis and the attending physician’s conclusion must be reached in good faith following a bona fide effort, consistent with standard medical practice and reasonable medical judgment, to determine the health of the fetus.”

Boulton, who is a trial attorney, observed that “in most areas of law,” such as medical malpractice or workers’ compensation claims, statutes use the phrase “within a reasonable degree of medical certainty.” He wondered why those who drafted the rules wrote “consistent with standard medical practice” and “reasonable medical judgment,” instead of well-recognized legal language.

Chief Deputy Attorney General Olson replied that “reasonable degree of medical certainty” is used in a civil liability context, but these rules are about regulating medical practices. Boulton asked whether “reasonable medical judgment” is defined elsewhere in the Board of Medicine administrative rules. Staff said they would have to check on that. I couldn’t find any such definition in the Iowa Administrative Code chapters covering the board.

NO ADDITIONAL CLARITY ON MEDICAL EMERGENCIES

In other states that are enforcing abortion bans, pregnant women are often denied care for complications unless they are near death or the fetal heart has stopped beating. Doctors are afraid to terminate pregnancies where that would be the standard of care (for instance, after early rupture of membranes) because they could face severe consequences.

House File 732 allows abortion in cases of “medical emergency,” but does not list specific conditions that would qualify. The existing code section uses vague language:

“Medical emergency” means a situation in which an abortion is performed to preserve the life of the pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy, but not including psychological conditions, emotional conditions, familial conditions, or the woman’s age; or when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.

Board of Medicine members did not request or receive any additions to the rules spelling out which conditions are “life-endangering” or “create a serious risk of substantial and irreversible impairment of a major bodily function.” So the draft rules approved on February 15 are silent on medical emergencies.

NO ADDITIONAL CLARITY ON DISCIPLINE

Board members didn’t ask for the administrative rules to spell out the consequences for doctors who violate the law in various ways. So the revised package is silent on how the board might discipline a physician who performed an abortion for someone who didn’t qualify, or what might be considered aggravating or mitigating factors.

Maggie DeWitte, executive director of Pulse Life Advocates (formerly known as Iowa Right to Life), generally welcomed the rules in comments provided to the Des Moines Register’s Michaela Ramm. That said,

DeWitte raised concerns on the lack of specific language on potential disciplinary action, saying her anti-abortion group hopes to see physicians who violate the law face severe penalties, such as removal of their medical license.

“If you’re going to have a law with no punishment, it defeats the purpose,” DeWitte said. “If you’re going to have a law and then there’s no consequences for breaking that law, there’s no teeth to it. We want to ensure that there is appropriate punishment for breaking this law because in the end, a life would have been taken. And that’s pretty serious.”

I doubt she needs to worry. Very few doctors would put their license on the line by terminating a pregnancy if there is any chance the state could sanction them later.

More likely, they would pull up stakes and move to a state where they can practice medicine without government interference and provide patients with the best standards of care.

“THE POPULATION OF IOWA DESERVES BETTER THAN ARBITRARY RULES”

The four physicians who founded the political action committee Iowans for Health Liberty last year—Drs. Emily Boevers, Andrea Greiner, Francesca Turner, and Jami Maxson—have sharply criticized House File 732 and the rules that would enforce it.

In a February 15 written statement, the group credited the Board of Medicine, which “has taken an important stand to protect the physician-patient relationship” by “attempting to adapt the language of the law to standard medical care.”

However, this does not change the fact that the restrictions the bill outlines infringe on the rights of pregnant women to control their reproductive health and the ability of physicians to provide standard of care medicine. Exceptions for abortion care are difficult to access, delay care and result in maternal death and disability.

Iowans for Health Liberty predicted that our state’s statistics on OB/GYNs per capita and infant mortality will worsen if this abortion ban takes effect. “The population of Iowa deserves better than arbitrary rules that do not promote the health and wellbeing of pregnant patients.”

It’s important to remember that the limited exceptions contained in House File 732 would deny any choice to the vast majority of pregnant Iowans. Planned Parenthood North Central States has estimated the law would ban about 98 percent of abortions.

If an unplanned pregnancy would derail your career or education, keep you trapped in an abusive relationship, worsen a painful condition like sciatica, or prevent you from meeting the needs of children you already have, Iowa’s Republican trifecta says too bad. A pregnant person’s happiness, physical and mental health, and future prospects count for nothing. An Iowa physician who terminated a pregnancy for a desperate patient could lose their license.

ProPublica’s Stacy Kranitz and Kavitha Surana recently profiled one Tennessee family for a year after the mother was unable to obtain an abortion despite compelling medical, emotional, and financial circumstances. Expect similar tragedies to unfold in Iowa if our government is allowed to enforce the new abortion ban.

A final note on next steps: the abortion rules should be on the agenda for the legislature’s Administrative Rules Review Committee meeting on March 4. Staff at the Department for Inspections, Appeals, and Licensing told Bleeding Heartland via email that the rules are scheduled to be published in the Iowa Administrative Bulletin on March 20, and “the first possible effective date would be April 24, 2024.”

The Iowa Supreme Court has not yet scheduled oral arguments on the state’s appeal of the preliminary injunction on the abortion ban.

Top photo depicting a doctor with a young female patient is by Chay_Tee and available via Shutterstock.