Abstract

As early medical abortion becomes more widely used and available in the United States, providers of women's health care are questioning whether, and in what way, existing abortion restrictions apply to medical abortion. Many of these laws, virtually all of which were written before early medical abortion was widely used in this country, make little sense in the context of medical abortion. Nonetheless, most abortion restrictions are broadly written and could be interpreted by state officials to apply to providers of medical abortion. This paper identifies and briefly describes common types of abortion restrictions, including physician-only laws, targeted regulation of abortion providers, fetal tissue examination and disposal laws, parental involvement requirements, and mandatory waiting periods, and explains the extent to which these types of requirements may be enforced against providers of medical abortion. In addition, because some abortion restrictions are irrational or impose significant and unwarranted burdens on women's access when applied to medical abortion, they may be vulnerable to legal challenge. We also review possible legal efforts to invalidate these laws, as well as legislative or regulatory changes that can be sought in order to truly make medical abortion accessible to women in this country.

Ms. Jones is staff attorney and Mr. Heller is director of litigation, both at the Center for Reproductive Rights in New York City.

Introduction

Medical abortion has existed for centuries, but has developed into a safe, effective, and medically accepted mechanism for use in early pregnancy only over the past two decades.¹ Today, two medical abortion regimens are regularly used by health care providers in the United States and abroad. One involves administration of methotrexate, a drug approved by the Food and Drug Administration (FDA) many years ago for various other uses, followed by administration of misoprostol, a prostaglandin analogue that has also been approved by the FDA for other uses. The second regimen involves administration of mifepristone, an antiprogestin, also followed by misoprostol. Mifepristone has already been approved as safe and effective as an abortifacient by the FDA; it is expected that it will be on the US market sometime in 2000. Studies of women and physicians indicate that the availability of mifepristone as an aborti-facient will increase women's access to abortion services in the United States, primarily by increasing the number of health care providers who offer abortion services.² The availability of medical abortion will also expand women's options with respect to pregnancy termination.¹

The increasing availability of medical abortion raises the question of how existing state abortion statutes and regulations will apply to this new method. It also raises the questions of how and whether to comply with abortion laws that were clearly drafted with surgical procedures in mind and that appear almost absurd when applied to medical abortion.

As an initial matter, health care providers should be aware that medical abortion is generally considered abortion under the laws that govern abortion practice in this country, and, by their letter, those laws can be applied to medical abortion just as they are to surgical abortion. This is true even if the application of those laws to medical abortion makes little sense from a medical perspective, and even if the effect of those laws is to thwart the increased access to abortion services that medical abortion promises.

On the other hand, to the extent that existing abortion laws are irrational or impose significant and unwarranted burdens on women's access to abortion when applied to medical abortion, they may be subject to legal challenge. In addition, some abortion restrictions are open to interpretations that would lessen their impact on medical abortion. Thus, in some states, efforts to exempt medical abortion from some abortion restrictions applicable to surgical methods may be successful.

This article analyzes some of the legal questions that health care providers will face as medical abortion, particularly mifepristone, becomes readily available to US health care providers. The article discusses the applicability of existing abortion restrictions to the provision of medical abortion and briefly examines possible legal, legislative, and administrative efforts to exempt medical abortion from those restrictions.

Physician-Only Laws

The majority of states (43 states and the District of Columbia) have laws prohibiting abortion except when performed by a physician licensed to practice medicine, including Alabama,³ Alaska,^4,5Arkansas,⁶ California,^7,8 Colorado,^9,10 Connecticut,¹¹ Delaware,¹² District of Columbia,¹³ Florida,^14,15 Georgia,^16,17 Hawaii,¹⁸ Idaho,^19,20,21 Illinois,²² Indiana,²³ Iowa,²⁴ Kentucky,^25,26 Louisiana,²⁷ Maine,^28,29,30 Maryland,³¹ Massachusetts,^32,33 Michigan,^34,35 Minnesota,^36,37 Mississippi,^38,39 Missouri,⁴⁰ Montana,⁴¹ Nebraska,⁴² Nevada,⁴³ New Jersey,⁴⁴ New Mexico,^45,46 New York,⁴⁷ North Carolina,^48,49,50 North Dakota,⁵¹ Ohio,^52,53 Oklahoma,⁵⁴ Pennsylvania,⁵⁵ South Carolina,⁵⁶ South Dakota,^57,58,59,60 Tennessee,^61,62 Texas,^63,64 Utah,^65,66,67 Virginia,^68,69 Washington,^70,71 Wisconsin,⁷² and Wyoming.⁷³ Only seven states (Arizona, Kansas, New Hampshire, Oregon, Rhode Island, Vermont, and West Virginia) do not have laws limiting the performance of abortions to physicians.

Hawaii's physician-only law defines abortion as "an operation" and should therefore be interpreted to apply only to surgical abortion. The Montana Supreme Court has permanently enjoined enforcement of a physician-only law against physician assistants who have been trained to perform abortions.⁷⁴ The New York Department of Health has rendered an opinion stating that New York law permits physician assistants to perform abortions, despite its physician-only law (Peter J. Millock, written communication, December 20, 1994). Accordingly, physician assistants can currently perform abortions in New York without any significant fear of prosecution. The Department of Health's letter notes, however, that the state's district attorneys, not the Department, have responsibility for enforcing the physician-only law, and a district attorney could theoretically begin prosecutions of physician assistants as long as he gave prior notice that he planned to do so.

Any of the jurisdictions with physician-only laws, other than New York, Montana, and Hawaii, could enforce these prohibitions against nonphysicians who provide medical abortions, subjecting them to prosecution or penalties. It is important to note, however, that these laws prohibit only the actual provision of abortions by nonphysicians; they do not prevent non-physician health care providers from assisting a physician in performance of an abortion. Thus, physicians may still delegate medically appropriate aspects of the medical abortion to trained non-physicians acting under their direction.

Legal arguments can be made in some states that the physician-only laws, while facially applicable to any means of abortion, cannot legitimately be applied to medical abortion for three reasons: 1) the laws are unconstitutional as applied to trained health care professionals who provide medical abortion because they impede access to abortion without serving the states' legally cognizable interests in maternal health or potential life; 2) the laws are unconstitutional as applied to trained health care professionals who provide medical abortion because they treat abortifacients as different from all other drugs the health professionals are authorized to prescribe even though the abortifacient drugs are very safe; and 3) the laws have been overridden by more recent statutes giving dispensing authority to nonphysician health care providers.

The first and second arguments, which are based on the interpretation of consti-tutional rights, are unlikely to be successful under the federal constitution because the US Supreme Court has endorsed Montana's physician-only law and its ban on abortion by physician assistants.⁷⁵ Nonetheless, these arguments have already proved successful in striking down those very same laws in state court under the Montana constitution.⁷⁴ Challenges to physician-only laws under state constitutions hold potential promise in certain other states, such as California,⁷⁶ that have already recognized broader protection for privacy or equal protection rights under their state constitutions than exists under the federal constitution. The third argument, which can be used both in court and with state health departments and prosecutors, is that state practice acts, which grant dispensing and other authority to certain nonphysician health care providers, and which are generally more specific and more recent than physician-only laws, preempt the physician-only laws with respect to the provision of medical abortion (Peter J. Millock, written communication, December 20, 1994).

Finally, in some states, it may be politically feasible to pass legislation amending the physician only laws in order to explicitly permit the performance of early abortions, either medical, surgical, or both, by nonphysician health care providers. And in some states, the reality may be that prosecutors will not charge nurse practitioners or physician assistants under physician-only laws for performing medical abortions, either because they believe the laws would not stand up in court, or because they believe the laws were not intended to apply in the arena of medical abortion.