Groups Sue Over Maine Law Allowing Only Physicians To Perform Abortions

Sep 21, 2017

The American Civil Liberties Union and several abortion providers have filed suit over a Maine law that they say severely restricts access to abortion in a rural, medically underserved state.

The federal lawsuit challenges a provision in the law that requires abortions to be performed by doctors and specifically blocks qualified nurse practitioners and nurse midwives from doing them. In Maine, it’s known as the physician-only law — under threat of criminal prosecution, no one other than a licensed physician can provide abortion services.

Planned Parenthood of Northern New England, the Family Planning Association of Maine and several advanced practice nurses say the 1979 law is outdated and medically unjustified, since qualified nurses prescribe medications and perform other procedures that are more complex and risky than a first trimester abortion.

“In California I provided this care. I’m qualified to provide this care and I should be able to do so in Maine,” says Julie Jenkins, a nurse practitioner at the Family Planning Association’s Belfast clinic, where she provides a range of health care services.

Before that Jenkins worked in California, one of several states, including New Hampshire and Vermont, where advanced practice registered nurses are legally permitted to perform both aspiration and medication abortions.

Jenkins says she became a plaintiff in the lawsuit because of the shortage of abortion doctors in the state — there are fewer than 12.

“I have a very specific situation where I was up in Presque Isle and I was there, I would have been able to do a medication procedure and we couldn’t find a doc to essentially watch the patient swallow the pills,” she says.

Because of the doctor shortage, there are generally three days in Maine when abortions are performed. That includes medication abortions offered remotely, using video conferencing, during the first 10 weeks of pregnancy.

In the case of the Presque Isle woman, Jenkins says the physician-only requirement resulted in a delay that affected her choice and her care.

“She was forced to wait an additional two weeks and was then not able to get a medication procedure, which is what she had wanted to begin with,” she says.

Jenkins points out that women in rural Maine face difficulty getting time off work, or finding and paying someone to watch their kids while they travel as many as nine hours round trip to access abortion services. Many of these women are low-income patients who struggle to cover the cost of the procedure alone.

Zach Heiden of the ACLU of Maine says such barriers violate constitutional guarantees to privacy and equal protection. As a basis for the Maine lawsuit he points to a landmark 2016 Texas case.

“The U.S. Supreme Court said in Whole Women’s Health v. Hellerstedt that a woman should be able to get abortion care without medically unnecessary burdens. We think this is a medically unnecessary burden and so we’re asking a court to strike it down,” he says.

If the physician-only restriction were eliminated, Evelyn Kieltyka of the Family Planning Association says in-clinic abortions could be expanded beyond three locations in Bangor, Augusta and Portland to clinics around the state. Women could be seen locally and without having to wait.

“Not every one of our nurse practitioners is currently trained up to provide this, but certainly that is our ambition,” she says. “We could make it available at all of our 18 sites, that day.”

Several peer-reviewed studies have found that there’s no difference in complication rates for abortions performed by advanced practice nurses and those done by physicians. That’s why professional medical associations such as the American College of Obstetricians and Gynecologists, the World Health Organization and the American Public Health Association say abortions can be safely provided by trained nurse midwives and nurse practitioners.

Although the number of abortions performed in Maine is considered low — there are fewer than 1,900 of them performed each year — Nicole Clegg of Planned Parenthood says that doesn’t mean women don’t face hardships trying to access them. It’s also why she says this case will be closely watched.

“We know that there are shortages of abortion providers across the country. This isn’t something that’s just limited to Maine,” she says. “My hope would be that a successful outcome here in Maine could lead to other states having their own court challenges and really changing the landscape when it comes to access to abortion.”

Named as defendants in the lawsuit are Attorney General Janet Mills and the state’s eight district attorneys, who could bring criminal charges under the physician-only law, although a spokesperson for the AG’s office said it’s not clear whether that has ever happened in Maine.

This story was originally published Sept. 20, 2017 at 12:10 p.m. ET.