News Politics

Politics May Have Been at Play in Iowa Telemedicine Abortion Ban Ruling

Teddy Wilson

Political consequences may have hung over an Iowa judge's ruling this week in favor of a ban on telemedicine abortion in the state.

Political consequences may have hung over an Iowa judge’s ruling this week in favor of a ban on telemedicine abortion in the state.

District Judge Jeffrey Farrell ruled Tuesday to uphold the state regulators’ decision to ban the use of video-conferencing systems that allow doctors to dispense abortion-inducing medication to patients in rural clinics across the state.

Last year, the Iowa Board of Medicine voted 8 to 2 to ban the use of telemedicine abortion in the state, requiring that doctors to be physically present when dispensing abortion-inducing pills to women and to provide in-person, follow-up exams.

Following the ruling, Iowa Gov. Terry Branstad (R) praised the decision by the judge, whom he had recently appointed, according to the Iowa Republican.

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“It certainly is the right decision because the code says before an abortion can be performed, there needs to be an examination. I don’t see how you can do an examination by telemedicine,” Branstad said during a campaign fundraiser on Tuesday for a congressional candidate.

In contrast, the Des Moines Register reported that Branstad’s Democratic opponent in the upcoming gubernatorial campaign, state Sen. Jack Hatch (D-Des Moines), wrote that the medical board’s decision was an attempt to “overregulate” health care.

“I believe we should free doctors and providers from burdensome regulation and allow them to do what they do best: practice medicine. They should determine the correct uses for telemedicine, not state bureaucrats and unelected board members,” Hatch wrote.

If the judge had ruled against the state regulators, he may have faced political consequences. This November, Judge Farrell will be on the ballot for a retention election, a process by a which a majority of voters can recall judges.

Prior elections have been used by conservative activists in Iowa to oust judges. The anti-choice group The Family Leader was the driving force behind the 2010 campaign to oust three Iowa state supreme court justices after the court’s unanimous ruling to legalize same-sex marriage in the state.

In November, after Judge Karen Romano issued a decision granting Planned Parenthood of the Heartland’s request to stay enforcement of the state Board of Medicine’s ban on telemedicine abortion, The Family Leader issued a statement suggesting Iowans vote against her retention.

“In 2010, Iowans held three activist supreme court judges in check when they voted ‘no’ on their retention,” wrote the organization’s president and CEO, Bob Plaats. “Apparently Judge Romano has not learned a lesson from that vote. The Family Leader encourages Iowans to remember Judge Karen Romano’s activism when she is up for retention in November 2016.”

After Tuesday’s ruling, The Family Leader issued a statement contending that while some have tried to make the regulations about politics, the organization believes that the ruling “put the health and safety of women first.”

Analysis LGBTQ

Fourth Circuit Rejects Request to Rehear Ruling in Favor of Transgender High School Student

Imani Gandy

In late April, a three-judge panel of the Fourth Circuit Court of Appeals ruled in Gavin Grimm’s favor, signaling that the high school’s anti-trans bathroom policy is a violation of Title IX of the U.S. Education Amendments of 1972, a federal law that prohibits sex discrimination at schools that receive federal funding.

A federal appeals court on Tuesday refused to rehear a case involving transgender student Gavin Grimm’s battle with his school board for the right to use the boys’ bathroom and locker room facilities at his high school in Gloucester County, Virginia.

In late April, a three-judge panel of the Fourth Circuit Court of Appeals ruled in Grimm’s favor, signaling that the high school’s anti-trans bathroom policy is a violation of Title IX of the U.S. Education Amendments of 1972, a federal law that prohibits sex discrimination at schools that receive federal funding.

In response, the Gloucester County School Board asked all 15 judges who sit on the Fourth Circuit to rehear the case “en banc”, meaning before the full court. In papers filed with the court, the school board argued that the Title IX ban on sex discrimination does not protect transgender students; that the court did not answer the fundamental question of whether the school board’s restroom and locker policy violated Title IX; and that the court’s decision “undermined the constitutional privacy rights of other students.”

In a five-page order Tuesday, the court denied the Gloucester County School Board’s request.

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Grimm’s lawsuit alleges that the school board’s decision to ban him from using the bathroom that aligns with his gender identity is unconstitutional under the 14th Amendment and violates Title IX. Grimm seeks an injunction blocking the school board’s policy.

A lower court initially sided with the school board, ruling that its policy of requiring that students use bathrooms consistent with their “biological sex” rather than their gender identity does not violate Title IX, and that Grimm’s schoolmates’ “bodily privacy” outweighed any potential harm to Grimm in using a different bathroom.

A three-judge panel of the Fourth Circuit disagreed: It held that the lower court relied on the wrong legal standard in failing to issue the injunction. In backing Grimm, the court deferred to recent guidance issued by the U.S. Department of Education that denying transgender students access to school bathrooms of their choice is a violation of Title IX. It remanded the case back to the lower court for a new hearing, with instructions to include consideration of the Department of Education’s guidance.

The Fourth Circuit’s rulings in Grimm’s case do not bode well for North Carolina. The state is currently embroiled in a pair of lawsuits against the United States regarding whether a provision in HB 2, which mandates that access to restroom facilities in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate, is a violation of both Title IX and Title VII of the Civil Rights Act of 1964.

North Carolina filed a lawsuit against the Obama administration in federal court regarding the administration’s “radical reinterpretation” of Title VII, which prohibits sex-based discrimination in employment. That lawsuit is notably silent on Title IX.

The United States’ lawsuit against North Carolina, however, is not: In addition to mentioning Title VII, it alleges that HB 2 constitutes “discrimination on the basis of sex in an education program receiving federal funds in violation of Title IX.”

Since North Carolina sits in the Fourth Circuit and given Grimm’s success before that court, the United States will likely be successful in its Title IX claim. And given that Title VII and Title IX cases are analyzed using similar legal principles, it is likely that North Carolina faces a similar uphill battle in its own Title VII case.

In his dissent from the Court’s order rejecting Gloucester County School Board’s request for a rehearing, Fourth Circuit Judge Paul Niemeyer wrote that “bodily privacy is historically one of the most basic elements of human dignity and individual freedom. And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom.” His comments obscure the fact that the courts have frequently ignored the right to bodily privacy: In pushing anti-choice laws, for example, conservatives have leveraged the state’s interest in the “health of the fetus” over a pregnant person’s right to bodily privacy.

Niemeyer further wrote that the Obama administration has “redefin[ed] sex to mean how any given person identifies himself or herself at any given time, thereby, of necessity, denying all affected persons the dignity and freedom of bodily privacy.”

The Obama administration disagrees, and believes that—due to a legal principle sometimes referred to as the Auer/Seminole Rock doctrine—the Department of Education (DOE) is entitled to interpret its own implementing regulations as it sees fit.

Title IX regulations provide for the separation of restrooms, showers, locker rooms, and dorms on the basis of sex, but the regulations are silent as to where transgender students fit when it comes to sex segregation in bathrooms and locker rooms. According to court documents filed by the Obama administration, because there’s no legislative history regarding what Congress meant by “sex,” in Title IX, the DOE can rightfully expand its protection to include transgender people.

It remains to be seen whether the lower court will rehear Grimm’s case as instructed by the Fourth Circuit, or whether Gloucester County School Board will immediately appeal the Fourth Circuit’s ruling to the Supreme Court. In either event, it is expected that the Supreme Court will soon be called to weigh in on the interpretation of Title IX and whether transgender people fall within its protection.

News Abortion

West Virginia Governor Vetoes GOP’s Ban on Common Abortion Procedure (Updated)

Teddy Wilson

Republican supporters of the anti-choice bill are preparing to hold a vote to override the governor’s veto, which could come as early as Thursday.

UPDATE, March 11, 10:25 a.m.: West Virginia’s GOP-majority legislature voted Thursday to override the governor’s veto. The new law banning the dilation and evacuation abortion procedure will take effect in 90 days.

West Virginia Gov. Earl Ray Tomblin (D) on Wednesday vetoed a bill that would criminalize a medical procedure often used after a miscarriage and during second-trimester abortions.

SB 10, sponsored by state Sen. Dave Sypolt (R-Preston), would prohibit someone from performing or attempting to perform a dilation and evacuation (D and E) procedure unless it is necessary to prevent serious health risk to the pregnant person.

The D and E procedure is commonly used in second-trimester abortion care. During the procedure, a physician dilates the patient’s cervix and removes the fetus using forceps, clamps, or other instruments.

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“I am advised this bill is overbroad and unduly burdens a woman’s fundamental constitutional right to privacy,” Tomblin said in a statement. “Among the bill’s prohibitions is a leading pre-viability medical procedure [D and E] that, for reasons of patient safety, is preferred by physicians.”

Under the GOP-backed bill, a physician who violates the anti-choice law would be guilty of a felony and may be fined $10,000 and imprisoned for up to two years. The physician may also face injunction and civil damages.

Republican legislators in several states have pushed legislation to ban the D and E procedure over the past year. The bills have been copies of legislation drafted by the National Right to Life Committee (NRLC).

Federal courts have blocked similar measures passed by GOP lawmakers in Oklahoma and Kansas.

Margaret Chapman Pomponio, executive director of WV FREE, a reproductive health advocacy organization, praised Tomblin for vetoing the bill. She said in a statement that the legislation would take away a pregnant person’s ability to make personal medical decisions in consultation with their health-care provider and prohibit physicians from providing the safest possible care.

“These decisions should be made by a woman in consultation with her provider, not by legislators. Politicians shouldn’t play doctor,” Pomponio said. “We are heartened by Gov. Tomblin’s decision to place his trust in the women of West Virginia and the health-care community.”

Republican supporters of the bill are preparing to hold a vote to override the governor’s veto. West Virginia State Senate President Bill Cole (R-Mercer) told the Gazette-Mail that an override vote could come as early as Thursday.

“I believe Senate Bill 10 strikes the right balance between the rights of physicians to practice medicine, a woman’s right to privacy and the lives of unborn children,” Cole said. “The Senate will vote to override this veto without delay.”

Lawmakers can override the governor’s veto with a simple majority vote of the members of both legislative chambers. They have until Saturday at midnight before the legislature adjourns. Republicans hold a two-seat edge in the state senate, along with a 64-36 advantage in the house. 

West Virginia’s GOP-majority legislature voted last year to override Tomblin’s veto of an unconstitutional ban on abortion after 20 weeks, which was the the first time a governor’s veto has been overridden in West Virginia since 1987.