D. EVIDENCE OF LEGISLATIVE, LEGAL & REGULATORY ENVIRONMENTS: PROVIDER RESTRICTIONS AND LEGAL STRATEGIES FOR ESTABLISHING ABORTION AS WITHIN APC SCOPE OF PRACTICE

By Jennifer Dunn, JD and Erin Schultz, JD

Notably, most state provider restrictions for abortion provision accompanied the legalization of abortion in 1973. To forestall a proliferation of potentially unsafe and untrained abortion providers, legislatures and/or regulatory bodies in most states adopted policies limiting the practice of abortion to licensed physicians. However, these abortion laws and regulations were enacted before CNM, NP, and PA roles were defined within state practice acts and before significant advances in abortion provision technology and training. Despite developments in APC scope of practice over the past 36 years, these provider restrictions, or “physician-only” laws, are still in place in many states. They have the practical effect of placing a legal roadblock in the way of well-qualified APCs who would like to incorporate abortion care into their practices.

In this section (IV.D), we consider a state to have a provider restriction if, under state law, any category of APC is explicitly prohibited from performing either medication or aspiration abortion. Currently, only five states—Kansas, New Hampshire, Oregon, Vermont, and West Virginia—have no provider restrictions for either medication or aspiration abortion*. In the majority of other states, limitations can be found in statutes, often referred to as physician-only laws, stating that abortions may be performed only by licensed physicians.

Without further interpretation, such laws prohibit APCs from providing abortions. In addition to having physician-only laws, some states explicitly prohibit nurse practitioners, nurse midwives or physician assistants from providing abortions by placing restrictions on APC scope of practice.17 Such restrictions leave little to no room for interpretations that could allow APCs to provide abortions in these states.

A number of reports, articles, and other compilations identify which states have physicianonly laws (Guttmacher Institute, 2009; Jones & Heller, 2000; NAF, 2008b; NARAL Pro-Choice America, 2009). The number of states listed in the physician-only restriction category varies from one list to the next depending on how the author classifies provider restrictions. Some take into account whether APCs are permitted to provide medication abortion; others focus exclusively on aspiration abortion. Still others report no provider restrictions if any category of clinician other than physicians may perform abortions. For example, Arizona is often included among states without a physician-only restriction even though a provision of the Arizona PA Practice Act excludes surgical abortion from the list of minor surgeries that are within PAs’ scope of practice (Az. Rev. Stat. §32-2501.11 (2007)). Other reports place a state in the “no physician-only restriction” category when laws restricting abortion provision to licensed physicians include minor exceptions but do not allow any APCs to perform either medication or aspiration abortions.18

As of April 2009, 45 states and the District of Columbia include provider restrictions in statute or regulation. However, despite the presence of provider restrictions, by 2004 APCs with additional training were providing medication or aspiration abortions in numerous states** (Joffe & Yanow, 2004). Where necessary, stakeholders have requested legal interpretations from attorneys general and other administrative bodies to demonstrate the legality of APC provision of abortions within the state (NAF, 2008b). In states where abortion restrictions are included in statutes, these nonlegislative mechanisms have been used to clarify the scope of those restrictions in order to offer legal protection to APCs who provide medication or aspiration abortions. As we discuss below, in states such as Arizona, CNMs and NPs—but not PAs—can provide abortions. In others, such as California, an updated abortion statute allows APCs to provide “non-surgical” abortion (including medication abortion) but precludes APCs from performing surgical abortion (Cal. Health & Safety Code §2253(b)(2) (2003)).

In the following sections we recount strategies that have been used to make the legal and regulatory changes necessary for APCs to provide abortion when faced with ambiguities under the laws of the state in which they practice.

State Legislative Changes

Currently, California is the only state with a statute explicitly stating that APCs can provide abortion. The result of tireless efforts by advocates and lawmakers, California’s Reproductive Privacy Act replaced the state’s Therapeutic Abortion Act and codified a woman’s right to obtain an abortion within the state (Cal Health & Saf Code §§123460-123468; Cal. Bus. & Prof. Code §2253 (2003)). The 2003 act also provides that qualified, licensed individuals, including APCs, may provide “nonsurgical abortion” (Cal Bus & Prof Code § 2253(b)(2)), while only a licensed physician and surgeon may perform a “surgical abortion” (Cal Bus & Prof Code § 2253(b)(1)).

Under this statute, APCs are providing medication abortion, which is included under the definition of “nonsurgical abortion.” Since 2007, APCs who are involved in the University of California, San Francisco’s (UCSF) Health Workforce Pilot Project (HWPP) No. 171 have provided aspiration abortion under a legal waiver of the provision in the state’s Reproductive Privacy Act that limits the provision of “surgical abortion” to licensed physicians (Advancing New Standards in Reproductive Health [ANSIRH], 2009; Cal Bus & Prof Code § 2253(b) (2003). Through this demonstration project, researchers at UCSF’s ANSIRH program are collecting and analyzing data on patient, clinician and health services outcomes (e.g., safety, competency, satisfaction, and access). At the end of this project, data will be distributed to state policymakers. California provides an example of how incremental legislative changes in a state’s abortion statutes can create the legal environment necessary to support APC provision of abortion services.

State Judicial Rulings

Where state constitutions provide explicit rights to privacy or courts have broadly interpreted the right to privacy within the state, provider restrictions can successfully be challenged on similar grounds (Armstrong v. State of Montana, 989 P.2d 364 (Mo. 1999); Schrimer, 1997). In 1995, the Montana legislature enacted a statute restricting the practice of abortion to licensed physicians (Mont. Code Ann. §37-20-103 and §50-20-109 (1995)). At the time this law was enacted there was only one PA performing abortions in the state. A federal law challenge to this statute on the grounds that it placed an undue burden on a woman’s right to have an abortion resulted in the U.S. Supreme Court holding that the Montana law does not violate the U.S. Constitution (Mazurek v. Armstrong, 520 U.S. 968 1997). However, a subsequent state challenge resulted in the Montana Supreme Court’s enjoining enforcement of the state’s provider restriction because that court found that the law violated the Montana State Constitution (Armstrong v. State of Montana, 989 P.2d 364 (Mo. 1999)). The Montana court held that the provisions prohibiting qualified PAs from performing abortions violated the state constitutional right to privacy, which includes a woman’s right to have her abortion performed by a “health care provider of her choice.” The Montana Supreme Court’s determination that the state’s provider restriction statutes are unconstitutional and unenforceable means that qualified APCs ’s restrictive statute.

State Administrative Regulations

As noted previously, state constitutions and legislatures typically grant administrative agencies the authority to interpret and implement laws through agency-promulgated rules and regulations. For instance, a state legislature could charge the state’s health agency with protecting the health, welfare, and safety of the state’s citizens. Agency rules and regulations are generally enforceable if they are within the scope of the authority granted by the legislature (2 Am Jur 2d Administrative Law § 222). In some states, APCs’ authority to provide abortions has been recognized by administrative agencies within their regulations.

For example, in Rhode Island the Department of Health issued a set of rules and regulations pertaining to abortion, for the express purpose of safeguarding the health, safety, and welfare of women having abortion procedures. Under these regulations only a physician or “other licensed health care practitioner practicing within the scope of his or her practice” may perform abortions. Only a physician may perform a surgical abortion (14-000-009 R.I. Code R.§ 5.1 (Effective 1973; Last Amended 2002)). In Rhode Island, APCs may offer medication abortion under these regulations.

State Attorney General Decisions

To address the historical reality that many provider restrictions were written before the development of medication abortion or before advances in APC scope of practice, advocates in some states have requested that the state attorney general (AG) issue an opinion interpreting the state’s laws on the issue of APC provision of abortion. Although AG opinions are not binding statements of law, they are generally given “great weight” by courts (7 Am Jur 2d Attorney General § 10). Of course, although it seldom occurs, a court charged with interpreting a statute may determine that the AG opinion should not be followed in a particular case. If charges were brought against an APC practicing in a state where the political climate is not supportive of abortion or of establishing a broad scope of practice for APCs, a judge could decide to disregard the AG’s opinion and interpret the state’s law differently. However, in most cases where there is an absence of controlling authority, courts are persuaded by AG opinions (7 Am Jur 2d Attorney General § 10).

Washington, Connecticut and Illinois provide three examples of states in which AG opinions have been used to determine whether medication abortion services are within APC scope of practice. Washington has a statute providing that “a physician may terminate and a health care provider may assist a physician in terminating a pregnancy” (Wash. Rev. Code § 9.02.110 (1991)). Another section of the code provides that unauthorized persons performing abortions can be convicted of a felony (Wash. Rev. Code § 9.02.120 (1991)). Washington’s abortion restrictions are unique for two reasons. First, they include language making it clear that the intent of the voters, who enacted these laws through the ballot measure process, was to protect a woman’s right to have an abortion. The law includes a statement that regulation of abortion should “impose the least possible restrictions on the woman’s right to have an abortion” (Wash. Rev. Code § 9.02.140 (1991)). In addition, the provider restriction was enacted before advanced registered nurse practitioners (ARNP, the state term that includes NPs and CNMs) were recognized and licensed as health care professionals (which took place in 1994) with authority to prescribe certain drugs.

Recognizing that the intent of the state’s laws was not to prevent qualified health care professionals from prescribing medication abortion, the AG issued an opinion stating that it is not unlawful for an ARNP acting within the terms of his or her professional license to “perform acts or procedures which will have the effect of terminating a woman’s pregnancy” (Op. Att’y Gen. Wash. No. 1(Jan. 5, 2004)). This opinion provides some legal protection for APCs who offer medication abortion in Washington.19

Under similar reasoning, a Connecticut AG opinion issued in 2001 after the U.S. Food and Drug Administration (FDA) had approved medication abortion concludes that “advanced practice registered nurses” and PAs who are practicing in accordance with state statutory requirements and conditions may offer medication abortion (Att’y Gen. Conn. Lexis 3 (Feb. 7, 2001)). As in the Washington AG’s opinion, the Connecticut AG made this determination based on the broad scope of practice and prescriptive authority granted to APCs under state law. The Washington AG’s opinion also carefully considered FDA requirements for the use of the approved medication abortion regimen, noting that the FDA specifically states that requirements for the use of medication abortion do not preclude qualified health care providers acting within their scope of practice from dispensing medication abortion to patients so long as this provision does not conflict with state law.20

The Illinois Attorney General issued the most recent opinion on the issue of APCs and abortion provision on March 5, 2009 (Att’y Gen. Ill. No. 09-002 (2009)). The Illinois Attorney General used similar reasoning to assert that the state’s abortion law stating that abortions shall only be performed by physicians (720 Ill. Comp. Stat. Ann. 510/3.1 (2009)) does not preclude APCs working under the supervision of a physician from providing medication abortion. The section of the abortion law containing this restriction was last amended before the legislature enacted the Medical Practice Act, Physician Assistant Practice Act and the Nurse Practice Act. (720 Ill. Comp. Stat. Ann. 510/3.1, originally enacted in 1975, section 3.1 added in 1979, last amended in 1984) Therefore, the AG reasoned the law must be interpreted to allow APCs to assist physicians by dispensing medicine, including mifepristone, according to the general practice within the state.

FIGURE IV.1

Proactive Regulatory Strategy: Washington State Attorney General Issues Opinion Affirming Authority of ARNPs to Prescribe Medication Abortion

Guest Feature by Deborah VanDerhei, Washington State Field Consultant, Abortion Access Project

Filled with optimism from a recently completed legal analysis, the Abortion Access Project (AAP) launched its Washington State project in 2002, hiring a field consultant with extensive networks throughout the state. The legal summary, conducted by the Northwest Women’s Law Center, suggested there were good arguments in favor of interpreting the physician-only provision of Washington’s 1999 Reproductive Privacy Act, RCW 9.02, to permit the independent provision of medication abortions by APCs acting within their scope of practice. In October and November 2002, the summary was offered to a group of stakeholders representing a cross-section of the pro-choice community. Through thoughtful negotiations, the decision was made to seek an opinion from Washington’s Attorney General as to whether the act permits the provision of medication abortion by APCs.

The Northwest Women’s Law Center and Planned Parenthood of Western Washington worked collaboratively to identify prosecutors, one positioned in eastern Washington (rural and generally more conservative) and one in western Washington (urban and considerably more progressive), who in turn agreed to petition the AG.

In response to requests from these prosecutors, the Washington State AG issued an opinion affirming that advanced registered nurse practitioners (ARNP, the state’s legal term for CNMs and NPs), acting within their scope of practice, may provide the drugs that cause medication abortion to their patients, whether or not they are acting in collaboration with a physician.

PAs may provide this service as well, as long as it is within their scope of practice. The AG’s opinion did not explicitly address PAs because the opinion responded to a question that assumed that all PAs and any ARNPs acting under the supervision of a physician may lawfully provide medication abortion. The question asked for clarification only for ARNPs acting independently. The AG’s opinion made the same assumption.

The opinion was a strong affirmation of RCW 9.02’s statement that “a physician may terminate and a health care provider may assist a physician in terminating a pregnancy.” The AG’s opinion indicates that RCW 9.02 was intended to protect women’s health and safety and to ensure a woman’s fundamental right to reproductive choice in the state of Washington. As the AG states, it is highly unlikely that courts would interpret this statute to make an ARNP’s action in providing medication abortion a crime in light of the fact that allowing an ARNP to perform the full range of health care services…authorized under RCW 18.79.050 “imposes the least restrictions on the woman’s right to have an abortion as called for in RCW 9.02.140, and given that the availability of such procedures to women would further the evident primary purpose of Initiative 120....”

July 2004 marked the first medication abortion offered by an ARNP in Washington State. Since then, dozens of ARNPs have been trained. Estimates suggest that as this APC Toolkit goes to press, more than 50 ARNPs are offering medication abortion using mifepristone and misoprostol throughout the state of Washington.

State Administrative Body Opinions and Decisions

Administrative Agency Rulings

Like AG opinions, administrative rulings and opinion letters are often persuasive authorities but do not provide APCs with the same protection as statutes or judicial rulings. New York was among the first states to look to an administrative body to clarify whether new classifications of providers could offer abortion under the state’s physician-only law. Despite the presence of a statute limiting the provision of abortions to licensed physicians, the New York Department of Health (NYDH) issued a Declaratory Ruling on December 20, 1994, stating that abortions may be assigned to and performed by PAs. (Office of the New York State Dep’t of Health, Declaratory Ruling: Performance of an Abortion by Physician Assistant (Dec. 20, 1994)).

The NYDH determined in its ruling that NY Penal Law §125.05 which states that abortions are not criminal when performed by licensed physicians, was intended to assure that abortions are safe and only performed by competent medical personnel. Because this law was enacted prior to statutes authorizing PAs to provide medical services, the NYDH determined that the newer PA provisions superseded the penal provisions. However, the NYDH did also provide a warning that “[p]ersons acting in reliance on this opinion are advised that the Department of Health has no responsibility for the enforcement of NY Penal Law §125.05. Decisions about enforcement of the Penal Law will be made by the various District Attorneys in the State, and not the Department of Health” (NYDH Dec. Ruling (Dec. 20, 1994). While APCs providing abortions in New York can cite this opinion as evidence of the safety and legality of their practice if an issue arises, this caution serves as a reminder of the limitations of administrative rulings in interpreting state laws.

State Health Professional Board Decisions

Although they often represent reactive rather than proactive strategies, decisions by state administrative bodies, such as nursing boards, can provide useful evidence of state policies on provision of aspiration or medication abortion by NPs and CNMs. In Arizona and Oregon, scope of practice investigation proceedings were initiated against NPs providing aspiration abortion services to patients that resulted in nursing board decisions in both states concluding that aspiration abortion is within the scope of practice for qualified advanced practice nurses.

When an anonymous complaint was made to the Oregon State Board of Registered Nursing (OSBN) in 2006 that an NP was providing aspiration abortions, the board made the determination that this procedure was in fact within an NP scope of practice pursuant to educational preparation and clinical competency in the procedure. The following decision was mailed to the NP21:

The Board determined that the performance of manual suction/aspiration abortions was not outside the scope of practice of a Family Nurse Practitioner given that certain parameters have been met; specifically, that the Family Nurse Practitioner is both educationally prepared and clinically competent.

With this decision, the OSBN became the first health professional administrative body to explicitly state an opinion that early aspiration abortion is within the scope of practice for qualified NPs. This case is further described in section IV.G.

A year later (2007) in Arizona, an anonymous complaint made to the Arizona Board of Nursing (AZBN) by a nonpatient triggered a similar mandatory investigation of the NP whose scope of practice had been questioned. As part of the required preliminary investigation, the AZBN charged its Advanced Practice Advisory Committee (made up of AZBN members and Arizona advanced practice nurses) with making a recommendation to it on questions related to abortion procedures (specifically, surgical abortion) and nursing scope of practice. The AZBN voted, with only one dissent, to accept the unanimous recommendation of its Advanced Practice Advisory Committee that “[i]t is within the scope of practice of a nurse practitioner to perform a first-trimester aspiration abortion provided the procedure is within the nurse practitioner specialty certification population; the nurse practitioner has met the education requirements of A.A.C. §R4-19-508(c)22; there is documented evidence of competency in the procedure” (Arizona State Board of Nursing, 2008, p. 24). See section IV-G for a complete description of this case.

The AZBN was the second state regulatory body to recognize aspiration abortion procedures as clearly within the scope of practice of advanced practice nurses. However, the process used by the AZBN was different than that used by the Oregon Board of Nursing. By engaging their Advanced Practice Advisory Committee in the evaluation of the question—is surgical abortion within the scope of practice of a NP?—the AZBN was able to hear from a representative community of advanced practice nursing (practitioners, educators and professional organizations). Furthermore, unlike the OSBN process, the AZBN meetings (e.g., advisory committee and full board meeting) relating to the investigation and scope of practice decision were public. Notably, there was no testimony presented by anti-abortion groups at any of the AZBN meetings specifically against the individual NP or generally against the premise that abortion is within the scope of practice of a competent advanced practice nurse.

This decision by the AZBN represented a significant victory for nursing and pro-choice advocates alike. However, as this APC Toolkit goes to press, legislators who disagree with the board’s decision that advanced practice nurses should be allowed to provide aspiration abortions are challenging the board’s authority. They have introduced legislation that would prohibit any nurses, including NPs and CNMs, from providing “surgical abortions,” defined to include the use of surgical instruments or a machine with the intent to terminate a pregnancy ((HB 2254, 49th Leg., 1st Sess. (Az. 2009)). The ongoing battle in Arizona demonstrates an unfortunate truth in the relationship between health professional boards and state legislatures: the legislature does have the power to override a board’s determination on issues of scope of practice, even if the board’s decision is based on a substantial record demonstrating the ability of APCs to provide safe and effective clinical services.

FIGURE IV.2

When Politics Trumps Evidence

Recently, newer physician-only laws have been used explicitly (and also covertly) to limit access to abortion, sacrificing fully competent professionals’ scope of practice in the name of a political agenda against legal abortion and/or the advancement of APC scope of practice generally. For example, in Arizona (one of five states without a physician-only restriction for abortion), legislation was passed in 2007 prohibiting PAs from performing abortions. (Ariz. Stat. Ann. §32-2501.11). In 2008, an Arizona bill that would have prohibited advanced practice nurses (CNMs and NPs) from performing abortions was narrowly defeated (Ariz. Stat. Ann. §32-2501.11 (2007); Capiello, 2008). A similar bill was introduced in 2009 (HB 2254, 49th Leg., 1st Sess. (Az. 2009)).

California offers another example of the effect that interprofessional politics can play in creating barriers to APC scope of practice and abortion access. The California legislature passed the Reproductive Privacy Act (SB 1301, 2001-2002 Sess. (Ca. 2002) (enacted)), which took effect in January 2003. In addition to codifying the protections of Roe v. Wade into state law, the act clarified that advanced practice clinicians (e.g., CNMs, NPs, and PAs) could provide “nonsurgical” abortions by administering medications such as mifepristone. Due to political pressure from state medical groups, the law states that only a licensed physician and surgeon may perform a “surgical” abortion (Cal. Bus. & Prof. Code 2253(b)(1) (2009)). Although the state senator who authored the law charged the medical community with further clarifying what other nonsurgical abortions APCs could perform, this political compromise essentially limited access to APC-provided abortion care without consideration of relevant evidence such as ability or competency (Kuehl, 2002).

These legislative exclusions of abortion from APC scope of practice show how politics trumps evidence—and should be of concern to all health professionals (Taylor, Safriet & Weitz, 2009).

*Please note that state laws and legal interpretations are constantly changing. This discussion and the statespecific information provided in the APC Toolkit are intended for informational purposes only and do not constitute legal advice. Clinicians who are considering incorporating abortion services into their practices should consult with regulation and legal experts as well as professional colleagues when determining wether abortion is within their scope of practice as defined by state practice acts and abortion laws.

17See e.g. §334.7335 Rev. Stat. Missouri (Enacted 1998, excluding the performance of abortion from physician assistant scope of practice); S.D. Codified Laws § 36-4A-20.1 (Enacted 2000, prohibiting the South Dakota Board of Medical and Osteopathic Examiners from approving physician assistant practice agreements including abortion) and S.D. Codified Laws § 36-9A-17.2 (Enacted 2000, probiting the approval of collaborative agreements for nurse midwives or nurse practitioners that include abortion provision); Tenn. Code Ann. § 53-10-104 (c) (Enacted 1994, prohibiting nurse practitioners and physician assistants from prescribing drugs for the sole purpose of causing an abortion).

**Please note that state laws and legal interpretations are constantly changing. Clinicians for Choice regularly updates a listing of states in which APCs are currently providing medication and/or aspiration abortion under legislative or other regulatory mechanisms; see http://www.prochoice.org/cfc/resources/timeline.html.

18See, for example, Ky. Rev. Stat. Ann. § 311.760, providing that during the first trimester, abortions may be performed by a woman on herself on the advice of a licensed physician or by a licensed physician.

19While the AG’s opinion focused on ARNPs, it relied on the assumption that PAs in Washington may also provide medication abortion as long as it is within their scope of practice. For more information on the Washington AG’s opinion, see the APC Toolkit Guest Feature by Deborah VanDerhei titled “Proactive Regulatory Strategy: Washington State Attorney General Issues Opinion Affirming Authority of ARNPs to Prescribe Medication Abortion,” which appears in Figure IV.1 of this publication.

20The FDA requires that the drug mifepristone (Mifeprex) be sold and distributed only to qualified, licensed physicians (U.S. FDA, 2000, 2007). APCs with prescriptive authority and legal recognition that provision of medication abortion is within their scope of practice work under collaborative arrangements with physicians to obtain mifepristone.

21Copy of letter to FNP on file with Diana Taylor, RNP, PhD.

22A.A.C. §R4-19-508(C) states: “An RNP shall only provide health care services within the nurse practitioner’s scope of practice for which the RNP is educationally prepared and for which competency has been established and maintained. Educational preparation means academic coursework or continuing education activities that include both theory and supervised clinical practice.”