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Dispensing Drugs in Medical Abortion Regimens

Health care providers with authority to perform abortion must also consider whether the state in which they practice restricts their dispensing of drugs. Licensed physicians may generally dispense FDA-approved, prescription drugs to their patients for both on- and off-label uses,^77,78,79 although a few states, like Arkansas, place certain restrictions on this practice.⁸⁰ In addition, in many jurisdictions, like Washington, DC, other health care providers, such as physician assistants,⁸¹ advanced registered nurses,⁸² or nurse-midwives,⁸³ also have some level of dispensing authority, ranging from dispensing drugs independently to dispensing them only pursuant to a collaboration agreement with, or under the supervision, of a physician. Non-physician health care providers who have dispensing authority applicable to the particular medical abortion drug to be dispensed and who practice in states where no physician-only restriction exists or is enforced may legally dispense medical abortifacients.

Targeted Regulation of Abortion Providers

Many states have enacted laws that single out facilities at which abortions are performed and subject them to requirements not applicable to other physicians' offices or outpatient clinics. These laws, which are sometimes referred to by the acronym "TRAP," generally apply on their face to medical as well as surgical abortion, although a couple of exceptions to this rule are noted below. These regulations vary in terms of the degree of burden they impose, the facilities they govern, and the stages of abortion to which they apply. Physicians considering the provision of medical abortions in their offices should know that the majority of these laws do not apply to private physician offices in which only first-trimester abortions are provided. Nonetheless, in a few states, TRAP laws may create a real deterrent to physicians who wish to provide medical abortions in their private practices.

Because medical abortion is currently used exclusively in the first trimester of pregnancy, only those states with TRAP laws applicable to and enforced against first-trimester abortions are relevant to this discussion. Fourteen states currently have TRAP laws that could be triggered by first-trimester medical abortion: Alabama, ⁸⁴ Arkansas,⁸⁵ Connecticut,^86,87 Florida,⁸⁸ Kentucky,⁸⁹ Mississippi,^90,91,92 Missouri,⁹³ Nebraska,⁹⁴ North Carolina,⁹⁵ Oklahoma,⁹⁶ Pennsylvania,⁹⁷ Tennessee,⁹⁸ Texas,⁹⁹and Wisconsin.¹⁰⁰ Arizona has a TRAP law that applies to first-trimester abortions, but to surgical procedures only .¹⁰¹ Louisiana ^102,103 and South Carolina ^104,105 both have TRAP laws applicable to first-trimester abortion, but they have been enjoined by federal courts. Louisiana's scheme also applies to providers of surgical abortion only.Alaska ¹⁰⁶ and Hawaii ¹⁰⁷ have TRAP laws that apply throughout pregnancy on their face, but are not enforced for first-trimester abortion because state officials have recognized that the laws contradict Supreme Court precedent. Hawaii's scheme also applies to the provision of surgical abortion only.¹⁰⁷

Four (North Carolina,⁹⁵ Oklahoma,⁹⁶ Pennsylvania,⁹⁷ Wisconsin¹⁰⁰ ) of the fourteen states with TRAP laws that could be triggered by first-trimester medical abortion have schemes that apply even if only one abortion is performed in the facility and even if the facility is a private physician's office. In five other states (Alabama,⁸⁴ Arkansas,⁸⁵ Mississippi,^90,91,92 Missouri,⁹³ Nebraska⁹⁴ ) the TRAP laws do not exempt physicians' offices, but apply only to providers who perform a certain number of procedures, perform abortions as some set percentage of their practices, or who hold themselves out to the public as abortion providers. The TRAP schemes in Connecticut,⁸⁶ Florida,⁸⁸ and Kentucky ⁸⁹ exempt physicians' offices, regardless of the number of abortions performed. The schemes in Tennessee⁹⁸ and Texas⁹⁹ exempt physicians' offices, but only if the number of abortions performed is below a level set by the state.

These TRAP laws vary significantly in the degree and complexity of requirements they impose. North Carolina's scheme, for example, requires that an abortion provider become licensed, open its facilities to the state for inspection, and meet detailed requirements, such as having separate operating rooms, meeting specific air exchange rates, keeping a registered nurse on duty whenever patients are in the facility, and having certain written policies and procedures.⁹⁵ By contrast, Wisconsin's scheme does not require facility licensing and simply contains a few general guidelines about the care to be provided.¹⁰⁰

In states where TRAP laws apply to providers of medical as well as surgical abortion, medical abortion providers must either comply with the schemes, seek an official state interpretation that the laws will not be applied to medical abortion providers, or bring a legal challenge to the laws.

Abortion-specific regulations are subject to legal challenge under three theories that have met with some success.¹⁰⁵ The first argument is that TRAP laws will force providers to stop offering abortion services or raise the cost of abortion so high that women will no longer be able to afford it. This argument works only where the regulations pose significant burdens. The second argument is that TRAP laws violate women's right to privacy because they do not advance women's health, ie, they do not make abortion appreciably safer. This argument is especially strong where detailed procedural, administration, staffing, or physical plant requirements are applied to medical abortion. The third argument is that medical regulations that target abortion providers for unique burdens discriminate against the constitutional right of women to obtain abortions. Each of these arguments can also form a policy position that may be effective in persuading state legislatures or regulatory agencies to defeat measures designed to single out abortion providers for burden-some regulation, or in persuading them to interpret existing or proposed TRAP laws so as to exclude medical abortion providers from their scope.

In addition to TRAP laws governing medical practice and facilities, nearly all states have laws imposing specific reporting requirements on abortion providers.¹⁰⁸ These laws vary as to the information they require, but usually elicit reports about the number and type of procedures done, as well as information about the abortion facility and the demographics of its patients. Many states also require reporting of the provider's identity. These laws, which ordinarily serve as a means of gathering data on the incidence and safety of induced abortion, generally apply to both medical and surgical methods. Reporting laws have been upheld under the federal constitution as long as they do not improperly threaten patient confidentiality.¹⁰⁹ To the extent that the reported information is used only for legitimate health monitoring purposes and patient confidentiality is maintained, reporting requirements are unlikely to be struck down under the federal or state constitutions. Nonetheless, should such a requirement impose particularly great burdens on an abortion provider in terms of added costs or antichoice harassment, the requirement may be subject to legal challenge.

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