Qualified but banned: Midwives and others sue to provide abortions

“Anytime you prevent a qualified provider from providing an extremely safe health service, for no reason at all, that is unfair, cruel and unconstitutional,” said one abortion rights advocate.
Planned Parenthood Protests Trump Administration's Title X Rule Change
Pro-choice activists, politicians and others associated with Planned Parenthood gather for a news conference and demonstration at City Hall against the Trump administrations title X rule change, on Feb. 25, 2019 in New York City.Spencer Platt / Getty Images file

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By Olivia Roos

Katie Riley is a certified nurse midwife who works for Planned Parenthood in Maine and New Hampshire. While medically qualified to perform abortions in New Hampshire, she is not in Maine, one of 42 states that have laws restricting clinicians like Riley from providing such services.

One patient who might have benefited from Riley’s medical training is Tanja Hollander, an artist in Maine who had to drive two hours across state lines to receive a medical abortion (also known as medication abortion or the abortion pill), because it was illegal for nurse practitioners at her local Planned Parenthood in Topsham, Maine, to provide the service.

Hollander had the money and the time to make the two-hour trip to Concord, New Hampshire, but that's a luxury not every woman has.

“I had the resources, but I can’t imagine being young and scared and having to go through that," Hollander said. "I had to jump through all these hoops to go through with it. And when you don't want to be pregnant and you are, it’s just a really hard emotional experience.”

The conservative tilt of the Supreme Court has red and blue states preparing for challenges to the 1973 landmark Roe v. Wade decision that legalized abortion in the U.S. The Alabama House, for example, this week voted to outlaw almost all abortions, while New York in January strengthened abortion rights in the state, even allowing physician assistants to perform them.

Abortion rights advocates are pushing back by targeting specific laws that prevent trained health care providers known as advanced practice clinicians from providing any form of abortion services.

Over the last two years, 11 lawsuits have been filed against physician-only laws, in states like Arizona, Maine and Montana, arguing that nurse practitioners, midwives and physician assistants are as qualified as physicians to perform abortions.

“Maine is a poor, rural state,” said Riley, who is a plaintiff in that lawsuit. “So when you think about the hardship passed by patients and their family when they try to access abortion, from taking off of work and finding transportation, removing the advanced practice clinicians ban is a relatively simple fix.”

When Hollander tried to make an appointment in Portland, the earliest she could get was three weeks away. Waiting that long would have put her precariously close to the state's legal medical abortion limit of 10 weeks. Not wanting to wait that long and unable to go to the nurse practitioner at her local Planned Parenthood, Hollander's only other option was to find an earlier appointment out of state.

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“I felt incredibly naive,” Hollander said. “I had no idea how difficult it was to get an abortion in a state that is liberal more or less.”

Physician-only abortion laws enacted after Roe v. Wade weren’t initially meant to limit access to abortion, but were meant “to protect women from unsafe, untrained and unlicensed abortion providers,” according to the University of California, San Francisco (UCSF).

However, at a 1990 a symposium of the National Abortion Federation and the American College of Obstetricians and Gynecologists, the two organizations voiced concerns about the growing shortage of abortion providers and recommended that advanced practice clinicians be trained in abortion care.

As a result, medical programs at institutions such as Stonybrook University and UCSF began providing accredited abortion care training. Advanced practice clinicians can also receive post-graduate certified training with the National Abortion Federation, which sets the standards for abortion care.

In 2013, UCSF released a study affirming that with the proper training, advanced practice clinicians can safely perform medical abortions as well as aspiration abortions. The study was supported by physicians and gynecologists alike, and redefined the standard of acceptable abortion providers.

Several months after the study was released, California passed a law that allowed advanced practice clinicians to perform medical and aspiration abortions. While other states, such as Oregon, Vermont and Washington allowed abortion by these clinicians in practice, California was the first to codify it into law.

But the surge of lawsuits against physician-only laws didn’t begin until 2016, when the Supreme Court struck down two Texas laws that would have severely restricted where abortion could be obtained by severely reducing the number of clinics in the state.

“This set down a new standard for how abortion is treated legally,” said Hillary Schneller, an attorney with the Center for Reproductive Rights, which Schneller said is directly involved in four of the 11 lawsuits against physician-only laws.

The court ruled that the Texas restrictions placed an “undue burden” on the ability to obtain an abortion — much like state laws that said only physicians could perform abortions.

The first lawsuit to be filed after the Texas ruling was in Maine, by the American Civil Liberties Union and Planned Parenthood. The state itself may make the case moot, however, as Gov. Janet Mills, a Democrat, introduced a bill this year to allow qualified medical providers to perform abortions. If passed, Maine would be the ninth state to allow qualified clinicians to perform abortions

Women in Montana face similar difficulties accessing abortion services. Even though physicians as well as physician assistants are allowed to perform abortions, abortion clinics are sometimes hours away, particularly in the northern part of the state.

Schneller is heading the Montana lawsuit to allow all advanced practice clinicians to provide abortions. The lawsuit was filed by an anonymous nurse midwife and a nurse practitioner, Helen Wheems, who runs the All Families Healthcare clinic in Whitefish. Besides her clinic, the closest abortion provider is two and a half hours away in Missoula.

In April, the court upheld a preliminary injunction from 2018 allowing Wheems and the midwife to perform abortions until a final decision is made. And Schneller is hopeful the ban against advanced practice clinicians will soon be repealed.

“Anytime you prevent a qualified provider from providing an extremely safe health service, for no reason at all, that is unfair, cruel and unconstitutional,” Schneller said, “particularly for such a time-sensitive procedure.”

CORRECTION (May 9, 2019, 9:50 a.m. ET): An earlier version of this article misspelled the first name of an artist from Maine who drove to New Hampshire for a medical abortion. She is Tanja Hollander, not Tonja. The article also mischaracterized Maine law regarding limits on abortion access. The state bans medical abortions after 10 weeks, not all abortions.