G. CASE STUDIES: MONTANA, NEW YORK, OREGON, ARIZONA, AND ALASKA

The case studies that follow were, in many ways, the inspiration for this APC Toolkit. These examples highlight the statutory, professional, regulatory, and political issues that arise when APCs attempt to advance their scope of practice into abortion care, especially abortion provision. Examining the cases of PAs and NPs in five different states, as well as the stories of APCs who have faced similar struggles in advancing their scope of practice into abortion care, lets us identify common themes:

On the other hand, these cases also illustrate how APCs, with the help of their professions, have formulated the evidence to situate abortion within APC scope of practice and reveal the mechanisms state regulatory boards follow in deciding whether abortion is within an APC’s scope of practice. Two of the cases also show how legislative and political power can overwhelm rational processes for assessing and advancing scope of practice. All five case studies make it clear that “it takes a village” to protect scope of practice when APCs attempt to advance their practice into politically charged areas such as abortion care.

Montana Constitutional Right to Privacy Trumps the State Legislature’s PA Abortion Restriction: Then & Now

Guest feature by Mindy Opper PA-C and Erin Cassard Schultz, JD

After receiving training in abortion as part of her PA program at the State University of New York and completing an apprenticeship in Montana with family practice physician Dr. Jim Armstrong, Susan Cahill began working with Armstrong offering first trimester abortion services. A Montana law dating back to 1974 provided that abortions could only be performed by a physician (Mont. Code Ann §50-20-109(1)(a)(Enacted 1974)). However, the law had been interpreted to allow PAs like Cahill who were working under the supervision of a physician pursuant to a Board of Medical Examiners approved utilization plan to perform abortions.

Cahill provided abortions for nearly 20 years with an impeccable safety record and not a single complaint against her before the Montana legislature challenged her legal status as an abortion provider. In 1995 the Montana legislature passed a law restricting the practice of abortions to licensed physicians (Mont. Code Ann. §37-20-103 and §50-20-109 (1995)). Theintent of this legislation seemed clear: to stop Cahill – the one PA in the state known to be providing abortions – from continuing to offer abortion services to her patients.

Cahill and a group of physicians practicing in Montana, represented by the Center for Reproductive Rights, challenged the constitutionality of this legislation under the federal constitution. They argued that the law imposed an “undue burden” on a woman’s right to have an abortion. In addition, they argued that the purpose for passing the legislation was impermissible, as the legislature could not pass a law with the intent to prevent one individual from providing abortions. After the lower courts issued an injunction to prevent the law from going into effect, the US Supreme Court held in Mazurek v. Armstrong (520 U.S. 968 (1997)) that there was insufficient evidence to support either argument.

Cahill and her co-plaintiffs continued their fight to ensure PAs could continue to provide abortions in Montana by challenging the law under Montana’s state constitution. The Montana State Constitution provides: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest” (Mont. Const. Art. II Sect. 10). After a hard-fought four year legal battle in the federal and then state courts, the Montana Supreme Court determined that the PA restriction for abortion was unconstitutional under the broader right to privacy provided by the Montana constitution. In their opinion striking down the 1995 statutes, the court states: “Quite simply, the statutory amendments at issue prevent a woman from obtaining a lawful medical procedure – a previability abortion – from a health care provider of her choosing. In so doing, these amendments unconstitutionally infringe a woman’s right to individual privacy under Montana’s Constitution.” Armstrong v. State of Montana, 989 P.2d 364 (Mo. 1999).

The major lessons learned from the “Cahill bill” was that the Montana state constitution has strong protections for an individual’s right to privacy and right to choose his or own health care provider. The court was able to de-politicize the issue of abortion and focus on access to care. There has not been a successful challenge to this ruling since, nor do we feel there will be as the court made it clear they do not want to address this issue again. Similarly, the Montana PA association looked past politics on this issue. The state AAPA chapter testified on behalf of a PA’s ability to provide abortions, even though many members are “flat out anti-choice”. They were able to see the impending threat to all primary care provider scope of practice.

Following the Montana Supreme Court’s decision, Susan Cahill continued as the sole abortion provider until 2001 when I became the second PA in Montana to offer medication abortion through my care at Blue Mountain Clinic. After submitting the required supervisory agreement26 to the Montana Board of Medical Examiners in 2001 to provide medication abortion I was asked to appear before the board, a highly unusual request. I was thoroughly evaluated by the board and asked to answer questions about my training, my qualifications to provide abortion services and how I would handle abortion-related problems with my supervising physician. Several members on the board were surprised that I could competently perform gestational dating using ultrasound without having completed formal radiology courses. I provided documentation of post-graduate abortion training through NAF workshops on comprehensive abortion care (e.g., pregnancy diagnosis, gestation estimation, MVA, medication abortion, and complication management) along with documentation of supervised ultrasound training and work site supervision of abortion procedures. During the meeting, when the provision of medication abortion was put into context of primary women’s health care that I regularly provide, including more invasive procedures such as chest tubes, NG tubes etc., they understood that providing medication abortion and MVA was much lower risk than imagined.
My request was approved.

Today I continue to provide medication abortion and follow up care for medication and aspiration abortion as does my colleague at Blue Mountain Clinic. Susan Cahill also continues to provide both medication and aspiration abortion care for her patients. Having started as an abortion counselor back in 1980, I have come full circle as I am now able to provide women with a full range of reproductive health services. Unfortunately, we can identify only five advanced practice clinicians (3 PAs and 2 NPs) who are currently providing medication and/or aspiration abortion in Montana. Through the efforts of the Montana Abortion Access Project and national medication abortion and MVA training workshops our hope is that additional APCs in Montana and throughout the United States will continue to receive training in all aspects of abortion care and incorporate these safe procedures into their primary care practices.

Resolving the legal ambiguities affecting APCs in New York

Guest feature by Karla Silverman, CNM, MS and Jini Tanenhaus, PA-C, MA

In the early 1990s, Donna Lieberman, Esq., and Anita Lalwani, Esq., of the Reproductive Rights Project of the New York Civil Liberties Union (NYCLU), reasoned that despite the perceived barriers created by New York’s “physician-only” statutes, properly trained PAs could legally perform first trimester abortions under the authority of their supervising physicians. Lieberman and Lalwani wrote a carefully worded memo to the New York State Department of Health (NYSDOH) asking for clarification as to whether the authority that allows properly trained PAs to perform medical procedures with physician supervision should apply to abortion procedures. Despite the presence of a statute limiting the provision of abortions to licensed physicians, the NYSDOH issued a Declaratory Ruling on December 20, 1994 stating that abortions may be assigned to and performed by PAs.

The NYSDOH determined 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 NYSDOH determined that the penal code section was superseded by the newer PA provisions. The NYSDOH stated that the law permits “PAs to perform abortions, provided they otherwise comply with their licensure and practice requirements.” However, the Department also provided 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.”

As a result of the NYCLU’s advocacy in 2001, then State Attorney General Eliot Spitzer issued an opinion that New York State law does not prevent advanced practice clinicians from providing medication abortion. A number of advanced practice clinicians across the state were trained and are currently providing medication abortion. Surveys conducted by PPNYC indicate strong interest across the state by APCs in providing aspiration abortion as well. Despite these promising developments, the “physician-only” stipulation in New York State’s abortion law remains an impediment to the full provision of abortion services by PAs, NPs and CNMs, as in some jurisdictions clinicians and administrators still fear prosecution.

Currently, advocates in New York are working to pass the Reproductive Health Act, which was first introduced by the Senate Committee on Rules at the request of former Governor Elliot Spitzer in 2007 (Governor’s Program Bill No. 16, S.5829 Rules, Sponsor, 2007). This act would amend and update the state’s abortion laws. Two features of this important bill are particularly relevant to APCs. First, the bill would authorize the performance of an abortion by “qualified, licensed health care practitioners,” resolving any remaining ambiguities about the legal status of APCs as providers of abortion in New York. The Act would also remove abortion from the Penal Law [NY CLS Penal § 125.05 and §125.15], appropriately placing the amended abortion laws within the Public Health Law.

As the time of publication, there are approximately 75 APCs providing medication abortion across the state. Only physicians are performing aspiration abortions including reaspirations for medication abortion failures. However, despite the NYDOH ruling about PAs being able to provide abortions as long as their supervising physician provides them combined with the State Attorney General’s determination that advanced practice nurses can provide medication abortion, there are still significant practice barriers. The existence of the physician language in the penal law can make obtaining medical malpractice coverage an issue, as some carriers view this as an uncovered risk. However, the proposed Reproductive Health Act legislation will be introduced in the 2009 NY State Legislature. We are hopeful that the alignment of APC professional organizations, reproductive rights advocates and political allies will predominate in the protection of APC scope of practice and the advancement of access to early abortion care for the women of New York State.

For New York updates or specific information about the efforts to advance the practice of APCs as abortion providers in New York, contact Clinicians for Choice at www.prochoice.org/ cfc or Karla Silverman, CNM, MS, Project Manager for The APC Initiative of New York State, Planned Parenthood of New York City.

Oregon State Board of Nursing Investigation Results in Abortion Scope of practice Opinion

By Grayson Dempsey with Shannon Rio, FNP, MA

In Oregon, a progressive Nurse Practice Act27 and the lack of a physician-only abortion provision law suggested that both medication abortion and aspiration abortion could be considered within NP scope of practice. In 2002, the Abortion Access Project hired the Northwest Women’s Law Center to explore this issue more extensively. The study determined that although aspiration abortion was not specifically defined as within advanced practice nursing scope of practice, “the broad language of the scope of practice regulations [within the Oregon Nurse Practice Act] encompasses abortion services” (M. Zurek, personal communication, June 2002). Following a statewide stakeholders meeting hosted by the Abortion Access Project, NPs working for the state’s largest Planned Parenthood affiliate, as well as one family NP (FNP) in private practice in a medically underserved county in southern Oregon, began providing medication abortion. The FNP in southern Oregon traveled to the Planned Parenthood affiliate to receive training before beginning medication abortion services, and she returned to her clinic able to perform uterine aspirations for incomplete medication abortions, with her physician partner providing medical backup (he had been providing aspiration procedures up to 13 weeks for more than 20 years).

In late 2004, this FNP evaluated abortion access in her county and determined that a shortage of providers was imminent. Many of the physicians in her county, including her partner, were on the verge of retirement. She examined her options thoroughly and, although she did not seek out a Board of Nursing opinion, she sought an updated legal analysis from the Northwest Women’s Law Center, which concluded, as it had in 2002, that early abortion care was within her scope of practice as defined by the Oregon Nurse Practice Act. The FNP traveled to the University of Rochester for two weeks to receive didactic and high-volume clinical training from experts in the field and at the beginning of 2005 began to provide medication and aspiration abortion services up to 10 weeks LMP. Coincidentally, another NP practicing at Planned Parenthood in northern Oregon began providing early aspiration abortion services at the same time.

In January 2006, the FNP received a notice from the Oregon State Board of Registered Nursing (OSBN, www.osbn.state.or.us) stating that it was investigating an anonymous (non- patient initiated) complaint regarding the provision of aspiration abortion as within NP scope of practice. The FNP contacted the state nursing association (she had not been a member of the association for several years) and was advised to rejoin the association as well as seek immediate legal counsel. She also sought support from her national reproductive health colleagues who not only supported her and her vital work for the women of her community but also recognized the broader implications of a regulatory board ruling on aspiration abortion and scope of practice.

In the six months that followed, the FNP prepared for her investigative hearing by developing a professional practice portfolio that became the template for the one in this APC Toolkit (see Figure V.2 in Section V.B). In addition to “getting her ducks in a row,” she worked with her allies to educate her state professional association and members of the OSBN about the safety of early abortion care and NP scope of practice (e.g., professional care standards, competencies, and ethical practice standards) pointing out the important role she played as a provider in an underserved community. Surprised at the lack of dialogue between the reproductive health community and the larger nursing community, this FNP sought to bring the two groups together to foster mutual understanding of the issues most important to women and patients throughout the state. This was her first experience with the complexity of the regulatory and investigative process, which prompted conversation about how scope of practice is determined and how individual nurses should become more involved in a proactive, rather than strictly reactive, manner.

At its June, 2006 meeting, the OSBN dismissed the complaint after investigation, and notified the NP involved of its disposition via letter, indicating that the Board had determined that aspiration abortion was not outside the scope of practice of a Family Nurse Practitioner whose qualifications included both educational preparation and clinical competency in this procedure. See section IV-E, page 69, for text of the OSBN determination.

With this decision, Oregon’s became the first state nursing board to explicitly state a regulatory opinion on early abortion care and NP scope of practice. The FNP who was challenged continues to work as the primary abortion care provider for almost 700 women a year in her county.

Scope of Practice: Politics Meddling in Professional Norms in Arizona

Guest Feature by Joyce Capiello, FNP, MS (2008)

Scope of practice issues for advanced practice nurses raise their ugly head from time to time. For NPs providing abortion care, scope of practice issues are unique and complex. Many states still have physician-only laws that date back to the 1960s and 1970s, when they were passed to protect women from unsafe abortion providers. Some states have used these antiquated laws to preclude advanced practice nurses from providing abortion care, particularly aspiration procedures, which may have been anachronistically defined as surgical abortion. Other states do not have such laws in place, and it is usually assumed that the Nurse Practice Act encompasses the provision of abortion care, among many other women’s health care procedures. However, given the contentious nature of the abortion debate in the United States, a variety of strategies have been used by the anti-abortion movement to attempt to limit the provision of abortion in any way possible.

In 2007, an anonymous complaint was filed with the Arizona state board of nursing against an NP who was providing aspiration abortion procedures for a Planned Parenthood clinic. The complainant, who could have been anyone—a patient, a member of the general public or the health care community—expressed concern that the NP was acting outside her scope of nursing practice by performing abortions. Once the complaint was made, the board was obligated by statute to investigate the situation; although anonymous, it was determined that the complainant was not a patient. This NP had begun providing abortion care in 2001 to meet the needs of women in her area. The NP had an excellent safety record and had previously trained in abortion care at an academic health center as well as completing an extensive preceptorship with an experienced physician abortion provider. The NP also had been providing abortion skills training to residents from a nearby medical school.

After investigation and research, the Advanced Practice Committee of the Arizona Board of Nursing voted unanimously to recommend to the full board that NPs with special training be permitted to perform abortions in the first trimester. The full board reviewed the recommendation of the Advanced Practice Committee and voted, with one dissent, that NPs in Arizona can perform aspiration abortion in the first trimester of pregnancy. Although the NP had been safely performing abortions up to 17 weeks gestation, the board did not penalize her for performing second trimester procedures because it had not previously had the “first trimester” rule in place.

While this issue was before the Arizona Board of Nursing, HB 2269, a bill to prohibit nurses from performing surgical abortions, was introduced in the Arizona legislature. It quickly and quietly passed the Arizona House in the spring of 2008, before state nursing organizations were notified of the proposed legislation. The bill moved more slowly through the state Senate, allowing nurses to mobilize their opposition and to use their significant political influence to refocus legislators on scope of practice protection rather than abortion politics. The bill was defeated in the state Senate on June 26, 2008. In large part, because of the state and regional nursing organization political support, it was the only anti-abortion legislation to be defeated in the Arizona legislature in 2008.

If the proposed legislation had become law, it would have changed the way nursing practice, not solely abortion care, is regulated. The Arizona legislature, under the passage of HB 2269, could have paved the way for other state legislatures to introduce similar bills, making nursing regulatory boards subject to control by legislative mandates for any number of health care services provided by nurses, NPs, and CNMs.

Thanks are due the Arizona Nurses Association, the Arizona chapter of the AANP, and the many NPs and nurses in Arizona who opposed this legislation. The defeat of this bill was important to scope-of-professional-practice protection for all nurses.

Unfortunately, a law enacted in 2006 prohibits PAs from performing abortions in Arizona. The fact that that this legislation passed speaks to the need for coordinated efforts by all health care professional organizations, educators, reproductive health service providers, and reproductive rights advocates.

Alaska Board of Nursing Affirms One NP’s Scope of Practice to Include Uterine Aspiration

Guest Feature by Diana Taylor with Jo Fortier, FNP, MS

Although the Oregon and Arizona cases describe challenges to NP scope of practice for clinicians who had been providing medication and/or aspiration abortion, the following case study highlights the contentious debate that can surround abortion when an APC proactively attempts to advance her scope of practice into abortion provision.

In September 2005, an NP appeared before the Alaska Board of Nursing (BON) to affirm that uterine aspiration was within NP scope of practice. Because Alaska has a physician-only law pertaining to abortion care, the NP was performing uterine aspirations only for nonviable pregnancies, which included incomplete spontaneous abortion and complications arising from suction and medication abortions28. The primary goal in seeking affirmation from the BON was to proactively address the issue before any complaints could be filed. The secondary goal was to strengthen future legislative attempts to include abortion care as part of NP practice.

Regulation 12 ACC 44.430 Scope of Practice (as contained in the Alaska Nurse Practice Act (AS 08.68) states: “The board recognizes advanced and specialized acts of nursing practice as those described in the scope of practice statements for nurse practitioners certified by national certification bodies recognized by the board” (Alaska Dept of Commerce, 2008).29 The NP was certified through the American Academy of Nurse Practitioners, which is recognized by the Alaska BON. The Scope of Practice for Nurse Practitioners (AANP, 2007) is written intentionally without reference to specific procedures to allow for advancement of clinical skills beyond the basic competencies of formal education. The publication emphasizes education, autonomy, accountability, and responsibility with regard to advancing NP scope of practice.

This NP had extensive reproductive health care experience and documentation of training and competency with regard to uterine aspiration. She was practicing in a licensed clinic with physician collaboration and accepted quality improvement practices. The case review should have been routine (according to the Alaska BON and AANP’s own written descriptions of scope of practice), but what ensued was a fierce battle over abortion (despite continued assurances on the NP’s part that the procedure was being used for nonviable pregnancies only) spanning nine months and requiring four meetings to conclude.

The first meeting ended with the BON stating that it needed time to review documents presented at the meeting. Over the next four months, however, the BON’s requirements escalated. The NP was informed that the case had been referred to the Assistant Attorney General for review and opinion and that a letter of support was needed from the AANP stating that uterine aspiration was within NP scope of practice. When she inquired about getting a letter of support from AANP, the NP was informed that scope of practice is the jurisdiction of each state’s BON and not a function of the certifying bodies. While the BON waited for the opinion from the Assistant Attorney General, the NP’s next appearance before the board was postponed for three months.

In preparation for the second meeting, the NP went to the Alaska Nurse Practitioner Association requesting a letter of support to take to the BON. The organization’s leadership decided that the whole membership needed to be informed and a vote taken before a supportive letter could be issued. Again, this request was treated differently from issues that had come before the group in the past; in response to similar earlier requests, the officers and members present at a meeting had granted written support without a membership vote. After much discussion among the membership, there was a vote of unanimous support for the NP. Regardless of how individual members felt about abortion, the Alaska NP Association clearly supported abortion care as within the scope of NP scope of practice.

At the third BON meeting, the NP presented her letter of support from the state professional association as well as expert testimony. Despite broad support for abortion as part of NP scope of practice, the BON remained focused on the politics surrounding abortion and postponed making a decision until the fourth meeting, three months away.

Following the third meeting, the medical director at the NP’s clinic was informed by the Alaska Department of Health and Social Services (the state agency charged with overseeing health clinics) that a state senator had received a complaint that an NP was performing illegal abortions. After an agency representative met with the clinic medical director, the agency did not pursue an investigation of the complaint. This outcome was reassuring to the NP and her supporters, but the threat of harassment was also disquieting.

At the final meeting of the BON, testimony was submitted (without names or credentials) suggesting that the NP had mislead the BON to believe that uterine aspiration was similar to other procedures such as endometrial biopsy and IUD placement. Another concern was raised about the margin of error of ultrasound allowing for the unintentional performance of an abortion. The NP was not allowed to speak or rebut the testimony.

Despite the efforts to negatively influence the BON’s decision, there was a unanimous vote in favor of the NP. There were, however, two restrictions placed on the decision:

  1. The NP requesting the scope of practice determination was the only NP granted permission to do uterine aspiration, and she was restricted to performing the procedure only in her current place of practice;
  2. If another NP also wanted to do uterine aspirations, the individual would have to request BON approval.

While this outcome paves the way for other APCs wanting to provide abortion care in Alaska, the tortuous process involved underscores the political nature of confirming a competent health care provider’s freedom to perform what should be considered a standard part of women’s primary health care.

26 In order to practice as a PA in Montana the PA must have on file with Board in accordance to Mont. Code Ann. § 37-20-301(a)(2), a supervision agreement. A new supervision agreement is required for licensure, a new supervising physician and PA practice relationship or a change in supervising physician.

27 Oregon Nurse Practice Act, OR Revised Statutes, Chapter 678 (2007) available at http://www.osbn.state.or.us/ OSBN/pdfs/npa/ORS.pdf and http://www.osbn.state.or.us/OSBN/pdfs/npa/Div50.pdf (for NP/CNM scope of practice)

28 APCs in Alaska provide all aspects of abortion care (pregnancy diagnosis; pregnancy options counseling; pre-abortion examinations, including ultrasonography; pain management; and post-abortion care, recovery, and follow-up, including contraception) except the administration of the abortion medication or the aspiration abortion procedure.

29 See also Alaska Board of Nursing Position Statement: Registered Nurse and Advanced Nurse Practitioner Scopes of Practice, Appendix C of the Alaska Nurse Practice Act (AS 08.68), pp. 57–58. Adopted May 1983; readopted September 2005.