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Planned Parenthood of The Heartland v. Reynolds ex rel. State

Supreme Court of Iowa

June 29, 2018


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

         Appellants challenge the constitutionality of a statute that requires women to obtain certification that they completed a number of requirements at least seventy-two hours before having an abortion.

          Alice Clapman of Planned Parenthood Federation of America, Washington, D.C., and Rita Bettis of American Civil Liberties Union of Iowa Foundation, Des Moines, for appellants.

          Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor General, and Thomas J. Ogden, Assistant Attorney General, for appellees.

          Roxanne Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for amicus curiae Iowa Coalition Against Domestic Violence, et al.

          Heather Shumaker of National Abortion Federation, Washington, D.C., and Sally Frank, Des Moines, for amicus curiae National Abortion Federation.

          Melissa C. Hasso of Sherinian & Hasso Law Firm, Des Moines, and Angela C. Vigil of Baker & McKenzie LLP, Miami, Florida, for amicus curiae Biomedical Ethicists.

          Bob Rush of Rush & Nicholson, P.L.C., Cedar Rapids, and B. Jessie Hill of Case Western Reserve University, Cleveland, Ohio, for amicus curiae Iowa Professors of Law and of Women's Studies.

          Kimberly A. Parker and Lesley Fredin of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Paloma Naderi of Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts; and Paige Fiedler of Fiedler & Timmer, Johnston, for amicus curiae American College of Obstetricians and Gynecologists.

          Frank B. Harty of Nyemaster Goode, P.C., Des Moines, and Paul Benjamin Linton, Northbrook, Illinois, for amicus curiae Iowa Catholic Conference.


         In this appeal, we must decide if the constitutional right of women to choose to terminate a pregnancy is unreasonably restricted by a statute that prohibits the exercise of the right for a period of seventy-two hours after going to a doctor. In making this decision, we recognize the continuing debate in society over abortion and acknowledge the right of government to reasonably regulate the constitutional right of women to terminate a pregnancy. In carefully considering the case, we conclude the statute enacted by our legislature, while intended as a reasonable regulation, violates both the due process and equal protection clauses of the Iowa Constitution because its restrictions on women are not narrowly tailored to serve a compelling interest of the State. The State has a legitimate interest in informing women about abortion, but the means used under the statute enacted does not meaningfully serve that objective. Because our constitution requires more, we reverse the decision of the district court.

         I. The Judiciary.

         We begin by reflecting on the role of the judiciary within our venerable system of government. The Iowa Constitution, like its federal counterpart, establishes three separate, yet equal, branches of government. Iowa Const. art. III, § 1. Our constitution tasks the legislature with making laws, the executive with enforcing the laws, and the judiciary with construing and applying the laws to cases brought before the courts.

         Our framers believed "the judiciary is the guardian of the lives and property of every person in the State." 1 The Debates of the Constitutional Convention of the State of Iowa 229 (W. Blair Lord rep., 1857) [hereinafter The Debates], /services/collections/law-library/iaconst. Every citizen of Iowa depends upon the courts "for the maintenance of [her] dearest and most precious rights." Id. The framers believed those who undervalue the role of the judiciary "lose sight of a still greater blessing, when [the legislature] den[ies] to the humblest individual the protection which the judiciary may throw as a shield around [her]." Id.

         Unlike the United States Constitution, the Iowa Constitution begins with the Bill of Rights. Our framers were mindful that the

annals of the world . . . furnish many instances in which the freest and most enlightened governments that have ever existed upon earth, have been gradually undermined, and actually destroyed, in consequence of the people's rights not being guarded by written constitutions.

Id. at 100-01. Accordingly, "[t]he object of a Bill of Rights is to set forth and define powers which the people seek to retain within themselves." Id. at 154. Some perceived Iowa's Bill of Rights to be "of more importance than all the other clauses in the Constitution put together, because it is the foundation and written security upon which the people rest their rights." Id. at 103; cf. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 407, 91 S.Ct. 1999, 2010 (1971) (Harlan, J., concurring) ("[I]t must also be recognized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities . . . .").

         No law that is contrary to the constitution may stand. Iowa Const. art. XII, § 1. "[C]ourts must, under all circumstances, protect the supremacy of the constitution as a means of protecting our republican form of government and our freedoms." Varnum v. Brien, 763 N.W.2d 862, 875 (Iowa 2009). Our framers vested this court with the ultimate authority, and obligation, to ensure no law passed by the legislature impermissibly invades an interest protected by the constitution.

         Constitutional guarantees, such as the rights to due process and equal protection of the law, limit the power of the majoritarian branches of government. The purpose of such limitation is to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." Id. (quoting W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185 (1943)). One delegate during our state's constitutional convention emphasized the importance of vesting the authority to interpret our most sacred individual rights in the hands of an entity

in regard to which we can say, there is no political taint or bias, there is no parti[s]an complexion to it; it is of such a character that when we go before it to have our dearest rights decided, we may rest assured that they will be decided upon principles of law and equity, and not upon political or party principles.

1 The Debates, at 453.

         Here, we are called upon by Iowans to review an act of the legislature they believe infringes upon the Iowa Constitution's guarantees of due process and equal protection. The obligation to resolve this grievance and interpret the constitution lies with this court. "In carrying out this fundamental and vital role, 'we must never forget that it is a constitution we are expounding.' It speaks with principle, as we, in turn, must also." Varnum, 763 N.W.2d at 876 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)).

         II. Procedural Background.

         On April 18, 2017, the Iowa legislature passed Senate File 471. Division I of Senate File 471 creates new prerequisites for physicians performing an abortion, including a mandatory 72-hour waiting period between informational and procedure appointments. See 2017 Iowa Acts ch. 108, § 1 (codified at Iowa Code ch. 146A (2018)). Division II prohibits performing an abortion upon the twentieth week of pregnancy. Id. § 2 (codified at Iowa Code ch. 146B (2018)).

         On May 3, anticipating Governor Branstad would sign the bill into law, Planned Parenthood of the Heartland (PPH) moved for a temporary injunction to prevent Division I (the Act) from going into effect. PPH alleged the Act violated the rights to due process and equal protection of the law under the Iowa Constitution. The district court denied the injunction, and PPH sought a stay from this court. On May 5, Governor Branstad signed the law into effect. A few hours later, we stayed the enforcement of the Act per a single-justice order. On May 9, we granted PPH's interlocutory appeal and stayed enforcement of the Act pending a trial on the merits.

         The district court subsequently held a two-day trial. At trial, PPH produced five witnesses and an affidavit of a domestic violence expert. The State did not call any witnesses but, instead, offered two sworn statements. Mark Bowden, Executive Director of the Iowa Board of Medicine, indicated the Board would promulgate rules to implement the Act. Melissa Bird, Bureau Chief of Health Statistics at the Iowa Department of Public Health, presented vital statistics on where abortion patients resided in 2014 and 2015. The district court held the Act did not violate the Iowa Constitution.

         PPH appealed. We retained the case and stayed enforcement of the Act pending resolution of the appeal. On our review, we will first consider the entire factual record, as developed at the trial court, to determine how the Act will impact the ability of women to obtain an abortion in Iowa. Following that determination, we will consider whether the Act runs afoul of the due process clause and right to equal protection under the Iowa Constitution.

         III. Abortion Decision-Making and Access Prior to and Under the Act.

         In this section, we recount the facts underlying this case, as presented through witness testimony and exhibits offered at trial. The background and facts of this proceeding are extensive but need to be comprehensively explained and considered for the ultimate decision reached to be fully understood. The evidence and facts are an important part of justice, as is a fair and impartial understanding of the facts.

         A. Planned Parenthood of the Heartland and Abortion Generally.

         PPH is a healthcare provider in Iowa that offers reproductive healthcare services. It provides well-woman exams, contraception counseling and care, sexually transmitted infection (STI) evaluations and treatments, preventative care such as cervical cancer screenings and mammogram referrals, and abortion care. PPH predominantly treats poor and low-income women. Over 50% of PPH abortion patients live at or below 110% of the federal poverty line, and many more of its patients live below 200% of the federal poverty line.

         Abortion is a medical procedure that terminates a pregnancy. Between 25% and 35% of women in the United States have an abortion during their lifetime. Between April 1, 2016, and March 31, 2017, there were approximately 4000 abortions performed in Iowa. Many reasons have been identified to explain why women choose to have an abortion. Sixty percent of abortion patients already have at least one child and many feel they cannot adequately care for another child. Other women feel they are currently unable to be the type of parent they feel a child deserves. Patients frequently identify financial, physical, psychological, or situational reasons for deciding to terminate an unplanned pregnancy. Some patients are victims of rape or incest, and others are victims of domestic violence. Women also present with health conditions that prevent a safe pregnancy or childbirth. Sometimes, women discover fetal anomalies later in their pregnancies and make the choice to terminate.

         There are two abortion methods: medication and surgical. Medication abortion safely and nonsurgically terminates a pregnancy through the combination of two prescription medications: mifepristone and misoprostol. At the abortion appointment, a patient is given mifepristone, which blocks the hormone necessary to maintain a pregnancy. Then, in her own home within six to forty-eight hours later, the patient takes misoprostol, which causes the uterus to contract and expel its contents, usually within a few hours. The procedure is noninvasive and requires no sedation or anesthesia. Medication abortions are available to patients through their tenth week of pregnancy.

         A surgical abortion is the use of instruments to evacuate the contents of a uterus. Most surgical terminations last five to ten minutes, and the patient has the option of receiving sedation. If a patient opts to receive a surgical abortion with sedation, PPH requires the patient to bring an escort. In the past year, PPH performed approximately 2100 medication abortions and 1200 surgical abortions.

         Some patients view medication as a less invasive and more natural procedure and prefer to terminate the pregnancy in the comfort of their own homes. Medication avoids needles and surgical instruments inserted into the vagina and cervix, which may be traumatic for victims of sexual assault. Some patients prefer surgical abortion, as it is completed within a few minutes and the patient is surrounded by physicians and healthcare staff. Occasionally, patients present with medical conditions that make one method a safer option.

         Abortion is a safe medical procedure comparable to other office gynecological procedures such as endometrial biopsies, intrauterine device insertions, and cervical cone biopsies. Abortion is a safer procedure than many office medical procedures, including colonoscopies. The risk of death from continuing a pregnancy to childbirth is fourteen times greater than that of an abortion procedure. However, like all medical procedures, abortion has risks. The risks associated with medication and surgical abortions advance with every additional week of gestation.

         At the time PPH initiated this suit, it provided surgical abortions at two facilities in Iowa: Des Moines and Iowa City. It provided medication abortions at six facilities: Bettendorf (Quad Cities), Ames, Council Bluffs, Cedar Falls, Burlington, and Sioux City. After the filing of this case, however, the legislature enacted an appropriations bill that discontinued the Federal Medicaid family planning network waiver, eliminating $3, 000, 000 in federal funds that subsidized family planning services in Iowa. See 2017 Iowa Acts ch. 174, § 90 (codified at Iowa Code § 217.41B (2018)). In place of the Federal Medicaid funds, the legislature created a state-run family planning program and allocated comparable state funds to assist low-income patients with family planning services. Id. However, the appropriations bill barred payments to "any entity that performs abortions or that maintains or operates a facility where abortions are performed," including PPH. Id. § 90(3).

         Because PPH provides services such as cancer screenings, STI tests, and contraception to poor and low-income women at little or no cost to them, a substantial amount of PPH's operating budget comes from reimbursements from Federal Medicaid funds.[1] Due to a substantial decrease in funding, PPH was forced to close four clinics: Burlington, Keokuk, Sioux City, and most recently, Bettendorf (Quad Cities). Therefore, PPH currently operates five clinics in Iowa that provide abortion care, and only three clinics outside of Des Moines and Iowa City that provide medication abortions.

         B. Informed Consent and Decision-Making Prior to the Act.

         Prior to the Act, if a woman decided to terminate her pregnancy, she contacted PPH and scheduled an appointment. A PPH abortion appointment has several stages. The patient first undergoes a medical screening to identify any health risks and potential limitations on the types of procedures available to the woman. The patient undergoes an ultrasound to date the pregnancy and then is given the option to view the ultrasound and have the image described to her. The ultrasound also confirms that the woman has an intrauterine, rather than ectopic, pregnancy and ensures there are no anatomical issues that may affect the procedure. Any patient who expresses an interest in hearing embryonic heart activity, if any, is given the opportunity to do so. A majority of patients decline these options.

         The patient then has her blood drawn to test her Rh factor and hemoglobin levels. She answers a series of medical screening questions that cover her medical, surgical, and obstetrical history. At this stage, a patient has her vital signs taken and is screened for common conditions such as hypertension and anemia, as well as any other complicating or prohibitive medical conditions.

         Following the medical screening, PPH completes its patient education process and obtains informed consent from the patient. The education process ensures the patient understands the risks, benefits, and alternatives to the abortion procedure. Educators answer all of the patient's medical questions, screen for her decisional certainty, and review the informed-consent document with the patient. Patients receive information about the different methods, the efficacy of the procedure, the common risks associated with the procedure and with continuing the pregnancy, as well as alternatives to the procedure such as parenting and adoption.

         PPH staff are specifically trained to conduct a decisional-certainty assessment on every patient and ascertain how firm the patient is in her decision. Educators ask open-ended questions that allow the patient to open up about her decision to make the appointment, difficulties in coming to the clinic, and any questions or concerns she has about the procedure. Patient educators specifically target the patient's motivations and assess whether the patient is truly certain in her decision. As part of the decisional-certainty assessment, educators conduct intimate partner violence screenings, which inquire into whether the patient is safe at home, whether the patient has been threatened or coerced into scheduling the appointment, and whether she has been abused. Educators discuss the alternatives to an abortion and gauge whether the patient has indeed considered other options. As well, educators inquire into whether the patient has discussed the procedure with family, friends, or mentors, or whether she feels unsafe doing so. Further, educators look for "affirmative patients," who speak with affirmations such as "it is right for me because . . ." and "I feel it is in the best interest of my family because . . . ." Educators are trained to spend as much time as needed with patients in order to completely assess decisional certainty.

         Patients are fully informed of the alternatives to the procedure, including parenting and adoption. If a patient expresses any interest in continuing the pregnancy, PPH provides a list of resources for prenatal care, encourages her to begin prenatal vitamins, and can refer patients to obstetricians. PPH has resources for parenting assistance, and educators review all of the information with the patient so she is able to pursue the resources when she leaves the clinic. If a patient expresses an interest in adoption, PPH is partnered with an adoption agency that is willing to travel to meet patients in any PPH health center. If a patient is interested, PPH will facilitate connecting the patient with the agency or will provide additional local resources to pursue adoption. Educators offer patients adoption counseling and can assist patients in creating an adoption plan.

         Following patient education, at least 95% of PPH patients remain very firm in their decision to have an abortion. If a patient is not certain, educators speak with her further and help determine the best course of action for the patient given her individual goals, values, and circumstances. If a patient is not completely firm in her decision by the end of the education process, PPH does not perform the abortion and instead advises her to take more time with the decision. If there are any signs of coercion, or that the woman feels pressured by another to have the procedure, PPH does not perform the abortion.

         If a patient remains firm following education, the patient then speaks with a PPH physician. The physician again inquires into the patient's reasons for having the procedure and explains the risks and benefits of the procedure, as well as the risks and benefits of continuing the pregnancy. The physician answers any remaining questions the patient has, as well as ensures the patient is certain in her decision and free of coercion. After the physician confirms the patient's informed consent, the physician will provide the medication or perform the surgical procedure.

         PPH educators complete comprehensive training. Educators shadow other staff and managers for a period of time and complete seven interactive modules before they communicate with a patient. Then, educators begin speaking during sessions that are led by trained staff. After a period of supervised sessions, educators begin conducting sessions independently, with trainers periodically listening and conducting random chart audits. During training, educators will speak with managers following their sessions and talk about what they observed, whether there were any emotional cues or red flags, and whether the woman showed confidence in her decision. Beyond this training, PPH educators are evaluated annually.

         At trial, PPH offered uncontested evidence demonstrating nearly all patients schedule their abortion appointments after giving considerable thought to their decision and after making a firm decision. The majority of questions patients ask during the education phase relate to the medical procedure itself-usually how to take the misoprostol at home and when to call the clinic. Jason Burkhiser-Reynolds, the Center Manager for the Des Moines clinic, testified that in his experience, almost all patients are firm in their decisions. Burkhiser-Reynolds works with patients individually and frequently acts as a patient educator. In his experience, no patient has ever expressed regret, wished she had more time, wished she had continued the pregnancy, or believed she was rushed through the education session. PPH offered expert testimony, which the State did not contest, that the vast majority of abortion patients do not regret the procedure, even years later, and instead feel relief and acceptance.

         C. Abortion Landscape in Iowa Prior to the Act.

         At the time this suit was filed, Iowa ranked forty-sixth in the nation for obstetrician and gynecologist (OB/GYN) access for reproductive age women.[2] Sixty-six of Iowa's ninety-nine counties do not have an OB/GYN. Only 7.6% of family medicine physicians perform pregnancy ultrasounds in their offices. Because a handful of medical practitioners serve large geographic areas, patients-especially rural patients-must often wait between two to six weeks to see an obstetrician.

         Close to half of all Iowa physicians are employed by hospital systems. Approximately 40% of Iowa hospitals are affiliated with Catholic organizations, which prohibit abortion care. Mercy Health Organization, for example, is a major hospital system in Iowa and adheres to Catholic medical directives. Physicians practicing at Mercy, or another Catholic-affiliated hospital, may not participate in or facilitate abortion services or permanent sterilization. "Facilitation" contemplates any action that makes an abortion possible, including faxing patient information to an abortion provider.

         PPH performs abortions two or three days a week at its busiest centers. At other centers, abortions are performed one day a week or less. Staff availability and resources determine the schedule. Prior to the Act at issue, PPH was able to schedule a patient seeking an abortion within one or two weeks.

         Many Iowa women struggle to obtain the procedure of their choice or a procedure at all due to various constraints. First, both medication and surgical abortions are only available during certain windows of a woman's pregnancy. An uncontested provision of the Act imposes a ban on surgical abortions upon the twentieth week of pregnancy. In the past year, PPH performed fifty surgical abortions on women who were within two weeks of the twenty-week cutoff. PPH performed 600 medication abortions on women who were within two weeks of the ten-week cutoff for medication abortions.

         There are many reasons women have second trimester or otherwise late-in-window procedures. Most women are not aware of a pregnancy until at least five weeks since their last menstrual period. Some forms of contraception can mask the symptoms of pregnancy, which delays women from discovering a pregnancy by days or weeks. Some patients' life circumstances change drastically between discovery and the decision to terminate. A patient may have lost her job, ended the relationship with her partner, or lost a support system. Significantly, almost no fetal anomalies can be diagnosed until the second trimester when prenatal screening is conducted. Usually, an anatomical ultrasound is not performed until the eighteenth or twentieth week of pregnancy. Thus, some women may not be alerted to a problem until the second trimester, and by the time they have spoken with physicians and made the difficult choice to terminate, they may be very close to, or beyond, the twenty-week cutoff.

         Second, poverty plays a significant role in a woman's ability to terminate an unplanned pregnancy. As noted, more than half of PPH's patients live below 110% of the federal poverty line and many more live below 200% (low income). Nationally, 49% of women seeking an abortion live in poverty, and another 26% are low income. Half of all people living at or below the poverty line have a disability. Women at or near the poverty line have higher rates of unintended pregnancy and abortions than the population as a whole.

         Women who wish to have an abortion must not only pay the cost of the procedure, but also any collateral costs such as transportation, child care, lodging, and subsequent medical costs. Hourly and low-wage workers are unlikely to have paid sick or vacation days and, thus, will incur lost wages for any time taken off for the procedure. Poor and low-income families do not have savings, so in order to incur emergency health expenses, they must make hard decisions about leaving bills unpaid or taking on more debt. Many families in this situation rely on alternative financial services, such as payday loans, to finance emergency health costs. Financial hurdles can be extraordinary, and many women are delayed in obtaining the procedure simply due to the time it takes to tap their resources, determine how much money they can raise, arrange for time off work, and find child care. For example, a study[3] conducted by Dr. Deborah Karasek in Arizona just before a twenty-four-hour mandatory delay law was put into effect found the majority of patients opted to forego or delay food, rent, child care, or another essential financial cost to pay for the procedure.

         Third, Iowa women must travel significant distances to a PPH clinic. Approximately 35% of surgical patients and 25% of medication patients in Iowa travel more than fifty miles to their needed clinic.[4] Both figures are far greater than the 17% of women nationally who drive more than fifty miles one way to receive an abortion. Indeed, in 2008, the national median distance traveled to an abortion clinic was fifteen miles. Thus, women in Iowa travel much farther than the average patient to receive an abortion, which requires greater resources and support.

         Fourth, victims of domestic violence and sexual assault also face significant barriers to obtaining an abortion. The Centers for Disease Control and Prevention (CDC) estimates one-fifth of women in the United States are raped during their lifetime. The CDC also estimates 31.3% of Iowa women have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime. Victims of domestic violence and sexual assault are disproportionately low income.

         Reproductive coercion is also observed. This is a form of domestic violence that involves coercive behavior over a woman's reproductive health. Abusers understand a woman is less likely to leave the relationship if she has a child. Abusers may forcibly impregnate women, refuse to wear a condom, or manipulate contraception in order to further their control and dominance. Between 4% and 8% of all pregnant women report experiencing physical abuse during pregnancy. Significantly, women face an increased risk of homicide during pregnancy.

         Battered and abused women are often carefully monitored by their abuser. In order to maintain control, abusers check the mileage on the woman's car, nail doors and windows shut, and call the woman at home or at work multiple times during the day. Abusers often check insurance claims and credit card statements, so a victim of domestic violence may need to obtain cash to pay for the procedure. Abusers limit communications to family and friends, so a woman may not have access to people who can loan money or provide transportation. Victims of domestic violence also must keep the pregnancy and decision to terminate a secret from their abusers, so women must manage to overcome all of the above hurdles as quickly as possible, before the symptoms of pregnancy become visible. Managing to go to a doctor's appointment or clinic in secret, even for a single visit, therefore requires significant planning and resources.

         As well, victims of sexual assault and incest have unique interests in terminating a pregnancy as quickly as possible, as well as heightened confidentiality concerns. Many rape and incest survivors are extremely distraught, and a pregnancy serves as a constant physical reminder of the assault. For many, termination is an important step in the recovery process. Further, many rape and incest survivors are afraid of disclosing the event to friends and family. Thus, preserving confidentiality and securing the procedure without discovery is paramount.

         In sum, women in Iowa face significant obstacles in procuring an abortion. There is scarce OB/GYN access. A majority of PPH patients lives in poverty and must somehow gather the resources to obtain the procedure, women must travel significant distances to the nearest clinic, and women who are victims of domestic violence or assault face additional barriers beyond those imposed by distance and poverty.

         D. Senate File 471.

         On May 5, 2017, Governor Branstad signed into law Senate File 471. The statute was passed with "the intent of the general assembly to enact policies that protect all unborn life." 2017 Iowa Acts ch. 108, § 5. It contains two distinct directives. Division I creates new prerequisites for physicians providing an abortion, and Division II bars performing abortions upon the twentieth week of pregnancy unless the woman's life is in jeopardy. Id. §§ 1-2. PPH only challenges Division I.

         The Act requires physicians "performing an abortion [to] obtain written certification from the pregnant woman" that she has completed a number of steps at least seventy-two hours prior to the procedure. Id. § 1. Accordingly, at least seventy-two hours before an abortion appointment, the woman must obtain certification:

a. That the woman has undergone an ultrasound imaging of the unborn child that displays the approximate age of the unborn child.
b. That the woman was given the opportunity to see the unborn child by viewing the ultrasound image of the unborn child.
c. That the woman was given the option of hearing a description of the unborn child based on the ultrasound image and hearing the heartbeat of the unborn child.
d. (1) That the woman has been provided information regarding all of the following, based upon the materials developed by the department of public health pursuant to subparagraph (2):
(a) The options relative to a pregnancy, including continuing the pregnancy to term and retaining parental rights following the child's birth, continuing the pregnancy to term and placing the child for adoption, and terminating the pregnancy.
(b) The indicators, contra-indicators, and risk factors including any physical, psychological, or situational factors related to the abortion in light of the woman's medical history and medical condition.


         The Act permits physicians to perform an abortion without prior certification (1) "to save the life of a pregnant woman," (2) "in a medical emergency," or (3) if "in the physician's reasonable medical judgment [it] is designed to or intended to prevent the death or to preserve the life of the pregnant woman."[5] Id. For purposes of the Act, an abortion is performed in a "medical emergency" when the procedure 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, 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.

Id. § 2(6). Any physician who violates these provisions may have his or her license suspended or revoked pursuant to Iowa Code section 148.6 (2018). Id. § 4.

         E. Informed Consent and Decision-Making Under the Act.

         1. Certification.

         The Act requires a patient be informed of a number of things at least seventy-two hours before the scheduled procedure. PPH has provided the following uncontested evidence detailing what complying with the certification requirements actually entails in practice.

         The standard of care in obstetrics and gynecology is not to perform an ultrasound until the twentieth week of pregnancy. Patients do not simply schedule ultrasound appointments for the purpose of dating a pregnancy. Rather, patients contact an obstetrician, establish they are obtaining prenatal care, and then an ultrasound is performed at certain junctions in the pregnancy when it would provide the most valuable information.

         Accordingly, obtaining certification is not as simple as making an ultrasound appointment, as PPH and many other healthcare providers do not currently allow early pregnancy patients to schedule only an ultrasound. Indeed, it is PPH's policy to perform and evaluate ultrasounds only for patients coming to the clinic for abortion care. Under the Act, a patient will have to request that PPH (or a local clinic, the feasibility of which is discussed in greater detail below) schedule a specific preabortion certification appointment in order to obtain an ultrasound. PPH acknowledges that it will begin scheduling patients for preabortion certification appointments should the Act be put into effect, although it is contrary to the standard of care.

         As well, the Act requires that patients be informed of "indicators, contra-indicators, and risk factors" in light of their specific medical history. Thus, women will have to have blood drawn and analyzed, as well as provide full medical histories and have them reviewed, before a physician can assess the potential risks of the procedure. Unlike PPH, most obstetricians in Iowa do not have lab facilities in their offices, so a patient's blood would have to be drawn and then sent away for analysis. Or, the patient would have to first visit the obstetrician to receive lab orders then go herself to a different phlebotomy clinic for the blood screening. Of course, these steps would need to be completed before she has the initial appointment during which the physician analyzes her medical status and history and informs her of the risks of an abortion. If a patient went to PPH for an appointment, the entire certification process could be completed in one visit. However, Dr. Jill Meadows, PPH's Medical Director, testified that, in order to schedule double the appointments, women would be required to wait one to two weeks between the certification and abortion appointments.

         Finally, during the certification appointment, the woman will be provided materials drafted by the department of public health. PPH offered uncontested evidence that the materials contain medically inaccurate information. For example, the materials state that medication abortion is "usually" performed within forty-nine days of the last menstrual period, when, in fact, it is very commonly performed up to seventy days from a patient's last menstrual period. Indeed, the gestational range specified in the FDA-approved label for mifepristone is up to seventy days. Additionally, the materials state that a surgical abortion "takes about thirty minutes," when in actuality the procedure usually takes between five and ten minutes. As well, the materials inform patients that surgical abortions involve "scrap[ing] the walls of the womb," but most providers, including PPH, do not perform the procedure this way. Dr. Meadows testified that, as a whole, the department's materials overstate the complexities and risks of abortions and understate the availability of the procedure.

         2. Decisional certainty in abortion patients.

         At trial, PPH's witnesses discussed several studies of mandatory delay laws enacted in other states and offered significant evidence relating to the decisional certainty of abortion patients.

         A centerpiece of both PPH's and the State's arguments is a study authored by Dr. Sarah C.M. Roberts. The Roberts study was conducted in Utah after the state implemented a 72-hour waiting period.[6] The study surveyed 500 Utah women at four family planning facilities who attended an informational abortion appointment pursuant to the mandatory delay law. The researchers attempted to follow up with the women sometime afterwards to see whether the patients obtained an abortion. The researchers were able to follow up with 309 of the 500 women.

         Of the 309 women, twenty-seven reported they were no longer seeking an abortion. Of these women, eleven entered their appointments with the intention of continuing their pregnancy. Nine women entered their appointments "somewhat or highly conflicted" about their decisions and had not yet decided whether to have the procedure. Seven women, or 2% of the 309, entered their appointments certain in their decision to have the abortion and then, following patient education, changed their minds and decided to continue their pregnancy. The authors of the study noted that in states without mandatory delay laws, between 1% and 3% of patients similarly enter their appointments certain in their decision and, after the patient education process, decide to continue their pregnancies and forego the procedure. Accordingly, in the Roberts study, the authors found the 72-hour waiting period had no effect on the number of women who changed their minds from being certain in their decision to have an abortion to deciding to continue their pregnancy.

         The State urges that, in the Roberts study, the "most common reason [for still being pregnant at follow up] given was that the woman 'just couldn't do it.'" Therefore, the State argues, the mandatory delay will ensure that women are given sufficient time to consider the weight of their decision without the influence of providers "who may encourage women who are conflicted to go through with the procedure as quickly as possible so as not to lose a fee."

         There is, however, no evidence in the record that PPH has ever pressured a patient to undergo an abortion simply to collect a fee. Furthermore, in the Roberts study, thirty-four women were still pregnant when the researchers followed up with them. Twenty-seven opted to continue their pregnancies, six were still waiting for their appointment, and one woman was prevented from having an abortion because the delay pushed her beyond the clinic's gestational limit. Of the thirty-four women, eighteen reported they "just couldn't do it." Twenty women entered their appointments either intending to continue their pregnancies or conflicted in their decisions. PPH's witnesses explained that under PPH's same-day regime, all twenty women would have been given more time to consider their decision, and the eighteen who opted to remain pregnant would have similarly reported they "just couldn't do it."

         Beyond the Roberts study, PPH offered a number of additional studies related to decisional certainty in abortion patients. Dr. Mary Gatter conducted a study in Los Angeles that analyzed roughly 16, 000 same-day abortion appointments where patients were given the option of viewing the ultrasound. In the study, 99% of women who declined to view the ultrasound went on to have the procedure and 98.4% of women who opted to view the ultrasound went on to have the procedure. Indeed, the slight association between voluntary viewing and continuing the pregnancy was only present among the 7% of women who reported being conflicted about their decision upon arrival.

         PPH's expert, Dr. Daniel Grossman, explained the study drew no conclusion about whether patients were actually influenced by viewing the ultrasound or whether conflicted patients chose to see the ultrasound so they could be pushed toward not having the procedure. He testified the study never concluded that viewing an ultrasound caused uncertain patients to continue with their pregnancy. Furthermore, the Gatter study did not gather data relating to the impact of mandatory delays on patient decision-making, as California does not have a mandatory delay statute.

         Dr. Kari White conducted a study in Alabama in 2013. The study reviewed de-identified billing data from two of the five abortion clinics in Alabama while the state's 24-hour mandatory delay law was in effect. The study showed that 18.8% of women did not return to either of the two clinics for a procedure. Dr. Grossman, a coauthor of the study, testified the researchers exclusively reviewed billing data and did not attempt to discern why the women did not return. Further, he testified it was possible that some or all of the women went to another clinic or went out of state for their procedure. Additionally, the study did not assess decision-making. On cross-examination, the State expressly confirmed that, in the study, "there's no attempt to say why. Nobody is asking why they didn't return, so we're not talking about that question." PPH's witnesses clarified that the Alabama study did not find that 18.8% of women did not go through with the abortion, nor did it assess the causal relationship between the waiting period and the decision whether to proceed with an abortion.

         PPH additionally offered a second Utah study, authored by Dr. Jessica N. Sanders. The Sanders study has two parts. First, the researchers reviewed abortion statistics following the increase from a 24- hour delay to a 72-hour delay. Second, researchers reviewed a questionnaire completed by 307 women upon arrival at their procedure appointment. In the first part of the study, the researchers reviewed data and found that 80% of patients returned for their procedure when the 24-hour delay was in effect, and 77% returned when the 72-hour delay was in effect. The authors of the study explained that the first portion of the study was not designed to discern the reasons why the women did not return for their procedure. On cross-examination, the State confirmed the researchers never spoke to the women who did not return. PPH's witnesses explained the study therefore could not, and did not, determine whether the women were prevented from returning or decided not to return.

         Dr. Lauren J. Ralph conducted a study that reviewed a sample of women seeking an abortion and compared two different measures of decisional certainty. The study found abortion patients were as or more certain of their decision than patients presenting for other procedures, including mastectomies after a breast cancer diagnosis, reconstructive knee surgery, and prostate cancer treatments.

         Dr. Corinne Rocca authored a study that observed a cohort of women receiving first and late second trimester abortions at thirty facilities across the United States. The researchers conducted interviews shortly after the women had their procedure and then conducted interviews every six months for up to three years after the procedure. The researchers concluded the typical participant had an over 99% chance of reporting the decision to terminate her pregnancy was right for her at the follow-up interview.

         Finally, Dr. Grossman conducted a study in Texas while a 24-hour mandatory delay law was in effect. The researchers surveyed patients' decisional certainty prior to their initial informational visit, which included an ultrasound, and after the visit. The study found that 92% of women were sure of their decision prior to their initial appointment. Following the consultation visit and ultrasound, 92% of women reported being sure of their decision.

         PPH also offered the expert testimony of three physicians and a PPH health center manager. Dr. Meadows has treated over 10, 000 abortion patients. She testified that it is her opinion, based on her interactions and discussions with thousands of patients, that the Act will not impact patient decision-making. She testified patients uniformly give the decision considerable thought before contacting the clinic and PPH educators are trained to discern which patients are insecure in their decisions or may be under duress.

         Dr. Susan Lipinski is an OB/GYN in Waterloo. Although she does not perform elective terminations, she regularly counsels women who are undecided about their pregnancies and performs terminations when the health or life of the mother is at risk. She testified that patients are the best judge of whether they are ready to initiate treatment and physicians respect patient autonomy. She further testified that, in her experience, patients would not benefit from taking an additional seventy-two hours to reflect on their already-made decision.

         Dr. Grossman is an OB/GYN professor at the University of California, San Francisco. His clinical work focuses on outpatient OB/GYN, including family planning and abortion care. He performs first and second trimester abortions, both medication and surgical. Based on treating thousands of patients, as well as his own research, he testified that the 72-hour delay would not enhance patient decision-making.

         Finally, Burkhiser-Reynolds testified about his experiences working with abortion patients at the Des Moines PPH center. In his experience, nearly all patients arrive at their appointments having thoroughly researched and considered their decision. He testified that close to all patients have already considered other alternatives prior to their appointment. Further, he testified that almost all patients are firm in their decision to have an abortion and very rarely is a patient uncertain following the patient education process.

         F. Abortion Landscape in Iowa Under the Act.

         PPH offered additional evidence to support its claim that the Act creates unnecessary barriers to accessing abortion in Iowa. We therefore proceed to consider the evidence offered to demonstrate the Act's likely ramifications for Iowa women seeking to have an abortion.

         1. Obtaining certification.

         Facially, the Act does not require women to obtain certification from the same clinic or provider that ultimately performs the procedure. The State posits that women could obtain certification from a local provider for little or no additional cost. In response, PPH has offered evidence that Iowa women cannot easily obtain certification from a non-PPH provider.

         At the time this suit was filed, Iowa ranked forty-sixth in the nation in OB/GYN access for reproductive-age women. To obtain a diagnostic test, such as an ultrasound, patients normally must schedule an appointment and establish a patient-doctor relationship. Due to the severely limited number of providers in Iowa, many obstetricians are booked several weeks or months in advance.

         Most local clinics with family medicine physicians do not have the capacity to perform an ultrasound that includes audible heart tones. Patients seeking certification would have to first schedule a family medicine appointment, meet with the physician and inform the physician of her desire for an abortion, [7] and then be referred to a radiology center or hospital. Radiology centers and hospitals generally do not perform the type of limited ultrasound used in abortion screenings out of fear of liability for missing a potential defect. Thus, these facilities would require the patient to undergo a more expensive and comprehensive ultrasound.

         Radiology centers often do not have a radiologist available in person and, instead, use technicians to perform the ultrasounds. The patient would therefore have to wait again to have a radiologist review the images, which could take hours or days. Once a patient obtains an ultrasound and certification from a local clinic, the facility would need to send the records to PPH, which takes additional time. Many hospitals decline to perform the certification ultrasound altogether due to religious medical directives.

         PPH witness Dr. Jane Collins, a poverty expert from the University of Wisconsin, Madison, offered testimony on the difficulties of obtaining certification from a non-PPH provider. To illustrate, Dr. Collins provided the steps hypothetical patients in Ottumwa and Sioux City would need to take in order to comply with the Act and obtain certification from a non-PPH clinic.

         The State offered Dr. Collins a list of twenty-six local providers a woman in Ottumwa could visit to receive an ultrasound and obtain certification. After excluding duplicate entries and multiple practices at the same center, Dr. Collins narrowed the options to three facilities, which she then contacted. The first facility did not provide pregnancy ultrasounds. The second facility only performed pregnancy ultrasounds on its own patients. Thus, a woman would need to first travel to the clinic and pay for a new patient visit before having an ultrasound. A new patient visit costs $199 and the ultrasound costs $235. The third facility required a referral from a physician and only used technicians to perform ultrasounds. The image would be sent off-site to a radiologist for an additional, unknown fee, and the woman would wait an unknown period of time before getting her results. An early pregnancy ultrasound at the third facility costs $267, while a later first trimester ultrasound at this facility costs $621.

         For the Sioux City patient, the State provided Dr. Collins with a list of ninety-one local providers. After eliminating duplicates and religious facilities, Dr. Collins narrowed the options to just four providers, which she then contacted. The first facility's technician is not qualified to read the ultrasound image. Because the Act requires the woman to have the image described to her, she could not obtain certification from the facility. The second facility does not accept referrals from an abortion provider, nor does it accept referrals for merely an ultrasound. The ...

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