After the Choice: Challenging California’s Physician-Only Abortion Restriction Under the State Constitution
Jennifer Templeton Dunn & Lindsay Parham
61 UCLA L. Rev. Disc. 22
Abortion has been legal in California for more than forty years. When Governor Ronald Reagan signed the Therapeutic Abortion Act in 1967,1 California became one of the first states to legalize abortion in cases of rape, incest, or when continuing the pregnancy would impair a woman’s physical or mental health.2 Two years later, the California Supreme Court recognized for the first time the “fundamental right . . . to choose whether to bear children.”3 In 1972, California voters amended the state constitution to include an explicit right to privacy.4 More recently, in 2002, California legislators passed the Reproductive Privacy Act5 to codify the holding in Roe v. Wade.6 The act provides that “[e]very woman has the fundamental right to choose . . . to obtain an abortion,” and “[t]he state shall not deny or interfere with” this right.7 Thus, California has remained at the forefront of states that recognize the right to privacy and the right to an abortion.8
To this date, California state statutes and the state constitution protect women’s right to abortion. Yet, for many women in California, particularly women in rural and medically underserved communities, the “right” to an abortion is illusory. Most clinics and hospitals that provide abortions are concentrated in urban areas, leaving many counties without a single abortion provider.9 For women residing in such counties, California’s sheer size and geography compound the practical barriers to accessing an abortion provider. Outside urban areas such as San Francisco and Los Angeles, this results in provider shortages and delays in care that are typically associated with states that do not protect abortion rights, such as South Dakota, Missouri, and Arizona—not “pro-choice” states such as California.10
California’s physician-only abortion restriction exacerbates this abortion access problem. The physician-only abortion restriction prohibits qualified and licensed health professionals from providing aspiration abortion,11 which is the most common procedure for terminating a pregnancy in the first trimester.12 Although numerous studies demonstrate that early aspiration abortions13 are as safe when performed by nurse practitioners (NPs), physician assistants (PAs), and certified nurse-midwives (CNMs) (collectively, clinicians)14 as when performed by physicians,15 California’s Business and Professions Code allows only physicians to perform a “surgical abortion.”16 Furthermore, these clinicians are more likely to be working in rural, medically underserved, and high-poverty communities than their physician counterparts.17 Thus, California’s physician-only restriction places a heavier burden on women in these communities, who may often be uninsured or underinsured and who are more likely to be adversely affected by the provider shortages.
This Article challenges the constitutionality of California’s physician-only abortion restriction under the state constitution. By drawing on examples and studies from other states as well as the results of a major study by the University of California, San Francisco (UCSF), this Article argues that the state has no compelling interest that justifies prohibiting qualified, licensed clinicians from providing first trimester aspiration abortions. The restriction is also not narrowly tailored to this allegedly compelling interest. Therefore, if challenged, California’s physician-only abortion restriction would likely be found unconstitutional under the state constitution. Further, this strategy could be used to challenge similar abortion restrictions in other states with strong state protection for the right to privacy.18
I. California’s Abortion Landscape: The Right vs. the Reality of Abortion Access
State legislatures across the United States have recently attempted to reduce or frustrate women’s access to abortion services. In 2011, state legislators proposed more than 1100 provisions regarding reproductive health and rights, with over two-thirds pertaining specifically to abortion.19 Of the proposals regarding reproductive health, 135 were enacted, leading to greater restrictions on funding and access to care in thirty-six states.20
Amid the increasing abortion restrictions in other states, California’s laws still protect a woman’s right to abortion. The California Constitution grants an explicit right to privacy, which encompasses the right to choose an abortion.21 The California Health and Safety Code codifies a woman’s right to an abortion.22 The California Supreme Court also recognizes the “fundamental right . . . to choose whether to bear children.”23 If Roe v. Wade were overturned, abortion would still be legal in California.
Yet despite these legal protections, the reality of trying to find an abortion provider and obtain an abortion is difficult for many women in California. Most clinics and abortion providers are sparsely located in rural areas.24 In fact, over one-fifth of all California counties do not have an abortion provider, thereby leaving tens of thousands of reproductive-age women without access to abortion services in their community.25 In the Central Valley and other rural communities, family planning clinics often rely on physicians from urban areas who must travel to these communities, thus limiting their availability.26 Furthermore, the Central Valley and other rural California communities have some of the highest rates of poverty in the state.27 Many of these rural communities—as well as some urban communities—are designated as medically underserved areas, meaning that they have low ratios of primary care physicians per 1000 people and a significant percent of the population below the poverty level.28 The concentration of providers in urban areas presents significant barriers for California women who live in rural and other medically underserved areas to obtain abortion care because the state’s large size and mountainous geography make travel difficult.29 Many of these women must travel hundreds of miles to obtain abortion care.30
Such long trips may necessitate an overnight stay, taking off several days of work for travel time and the procedure, and arranging for childcare or eldercare if the woman has a family.31 Even for women with insurance, income, and a means of transportation, finding a provider in their area can be a significant obstacle.32 These barriers are particularly significant for women with limited means to cover the costs associated with travel to a provider, child or family care while they are away, and possible overnight stays, let alone the cost of the procedure itself.33 Furthermore, for some women, taking vacation or sick time may not be an option and could threaten their employment.34
These geographic and financial barriers cause delays in care, which may increase risks to the pregnant woman’s health and safety,35 add to the cost of the procedure, or result in a woman being denied an abortion36 because she is too far along in pregnancy by the time she finds a provider. These problems are so prevalent in California that some women have been able to obtain an abortion only with the help of ACCESS, a nonprofit group that is dedicated to helping women find the providers, transportation, funding, and shelter needed to obtain an abortion.37 Thus, while women in California have a constitutional and legislative “right” to abortion, the scarcity of abortion providers in rural areas impedes the exercise of this right.
II. Physician Assistants, Nurse Practitioners, and Certified Nurse Midwives as Early Abortion Providers
Despite the obstacles that arise from a lack of abortion providers in rural and medically underserved areas in California, state law allows only licensed physicians to perform aspiration abortion.38 This physician-only abortion restriction blocks a large number of qualified, licensed NPs, CNMs, and PAs from providing aspiration abortion. This is counterintuitive because these clinicians are more likely to see patients for family planning services39 and they perform the majority of initial contraceptive exams for female patients.40 At some women’s health clinics, clinicians provide most, if not all, reproductive health services.41 Clinicians are also more likely than physicians to care for medically underserved and vulnerable populations—including low-income women, women of color, and women without health insurance.42
NPs, PAs, and CNMs are formally trained, educated, and licensed health professionals. Both NPs and CNMs are advanced practice registered nurses, meaning that they are registered nurses who hold advanced degrees in nursing science and care.43 PAs attend a specialized training program associated with a medical school that includes classroom and clinical components.44 PAs also practice medicine, examine patients, diagnose injuries and illnesses, and provide treatment in accordance with a written protocol signed by a supervising physician.45 Such educational qualifications, training programs, and experience make clinicians safe and qualified primary care providers.46
Furthermore, all three types of clinicians routinely perform various specialized procedures, including those that are more medically complicated than early aspiration abortions.47 For example, depending on a PA’s level of experience and skill, she may be the first or second assist in a major surgery.48 CNMs routinely provide care for women during pregnancy and childbirth,49 which has a far higher mortality rate than early abortion.50 NPs specializing in family planning or women’s health also perform various procedures such as intrauterine aspirations, insertion of intrauterine devices, cervical and vulvar biopsies, and ultrasound exams.51 NPs, CNMs, and PAs also routinely provide medication abortion.52 As part of the provision of medication abortion and other women’s healthcare services, clinicians provide pregnancy options counseling, perform ultrasounds, administer and monitor medication, administer paracervical blocks, dilate the cervix, and provide post-abortion follow up care.53 The skills used in these procedures are the very same skills required to perform early aspiration abortion procedures.54 In fact, California’s abortion restriction prohibits the evacuation or aspiration of the uterus only when performing an abortion.55 Clinicians may evacuate or aspirate the contents of the uterus (using the same EVA or MVA technique as aspiration abortion) after a miscarriage or incomplete medication abortion.
Moreover, clinicians have safely provided early aspiration abortions for years in Vermont, New Hampshire, Oregon, Arizona, Montana, and California.56 At the Planned Parenthood of Northern New England,57 PAs have performed abortions in clinics in Vermont and New Hampshire for over twenty-four years and have trained medical residents in this procedure.58 In Oregon, trained NPs have been performing aspiration abortions since at least 2004.59 NPs in Arizona performed early abortions from 2001 to 2009 until Arizona enacted a physician-only abortion restriction.60 PAs have been performing abortions in Montana since the U.S. Supreme Court guaranteed a woman’s right to an abortion in Roe v. Wade, and they have continued to perform abortions after the Montana Supreme Court overturned its physician-only abortion restriction in 1999.61 Even in California, which continues to have a physician-only abortion restriction for surgical abortions, clinicians have been performing early aspiration abortions since 2007 under a legal waiver that allows a state demonstration project to collect data on patient safety, clinician competency, patient satisfaction, and abortion access.62 Through this state demonstration project, over forty clinicians have been trained in early aspiration abortions and have safely performed abortions on nearly 8000 women over the last five years.63 These studies and practices clearly indicate that clinicians trained in aspiration abortion procedures are safe and competent abortion providers.
III. The Evidence Supports a Change to California’s Physician-Only Abortion Restriction
A first trimester abortion is one of the safest types of medical procedures.64 Complications from having a first-trimester aspiration abortion are considerably less frequent and less serious than those associated with continuing the pregnancy, giving birth, or later-term abortions.65 Multiple studies since 1986 have confirmed that the safety and efficacy rates of early aspiration abortion do not change by provider.66 Thus, these studies have shown that an early aspiration abortion performed by a qualified, trained clinician is just as safe as one performed by a trained physician. The studies demonstrate that there are no compelling health or safety concerns sufficient to justify California’s physician-only abortion restriction.
A 1986 study to compare health and safety outcomes between women who received early abortions from physicians and women who received them from trained clinicians followed the outcomes from 2458 early abortions and found comparable complication rates associated with procedures performed by PAs to those performed by physicians.67 A more recent study in 2004 also found that abortions performed by experienced PAs had comparable safety and efficacy rates to those performed by physicians.68
UCSF completed the most recent study. In 2007, the Office of Statewide Health Planning and Development temporarily waived California’s physician-only abortion restriction in order to evaluate the safety and acceptability of advanced practice clinicians providing aspiration abortions.69 By September 2012, forty-three clinicians received training in aspiration abortion care.70
Over the four years of the study, clinicians at participating sites performed 7585 first-trimester aspiration abortions and physicians performed 6195 first-trimester aspiration abortions. The complication rate for abortions performed by the clinicians was comparable to that of the physicians.71 In fact, the complication rates for both groups were well below the published complication rate for the procedure.72 Patient satisfaction surveys indicated a high rate of satisfaction with care provided by the clinicians and was slightly higher than the rate given to the physicians.73 The UCSF study is the largest of its kind, and bolsters the findings of the multiple, prior studies that have shown similar results.74 The comparable complication rates and the high satisfaction rates in the UCSF study further demonstrate the safety and patient benefits in allowing trained clinicians to provide first-trimester aspiration abortions in California.
IV. Efforts to Repeal California’s Physician-Only
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