BILL ANALYSIS �
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|Hearing Date:April 16, 2012 |Bill No:SB |
| |1338 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 1338Author:Kehoe
As Amended:April 9, 2012 Fiscal: Yes
SUBJECT: Abortion.
SUMMARY: Would eliminate the distinction between "surgical" and
"nonsurgical" abortions for purposes of which licensed health care
practitioners (i.e., physician and surgeons, nurse practitioners,
certified nurse-midwives, physician assistants) are permitted to
perform, or assist with, which types of abortions. Would instead
clarify that nurse practitioners, certified nurse-midwives and
physician assistants may assist in performing an abortion if
authorized within their practice to do so, and can perform an abortion
by "medication" or "aspiration techniques." Would no longer consider
a "nonsurgical abortion" as including termination of a pregnancy
through the use of "pharmacological agents" and would instead
substitute the term "medication" as specified above. Would provide
specified training requirements for nurse practitioners, certified
nurse-midwives and physician assistants to perform abortions by
aspiration techniques. Sunsets certain training requirements by 2015,
but specifies others to continue after January 1, 2015.
Existing law, the Health and Safety Code (H&SC):
1)Establishes the Reproductive Privacy Act (Act) which does the
following:
a) Makes legislative finding that every individual possesses a
fundamental right of privacy with respect to personal
reproductive decisions. Accordingly, specifies that it is the
public policy of the State of California that : (H&SC � 123462)
i) Every individual has the fundamental right to choose or
refuse birth control.
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ii) Every woman has the fundamental right to choose to bear a
child or to choose and to obtain an abortion, except as
specifically limited by this Act.
iii) The state shall not deny or interfere with a woman's
fundamental right to choose to bear a child or to choose to
obtain an abortion, except as specifically permitted by this
Act.
b) Provides for the following definitions: (H&SC � 123464)
i) "Abortion" means any medical treatment intended to induce
the termination of a pregnancy except for the purpose of
producing a live birth.
ii) "Pregnancy" means the human reproductive process,
beginning with the implantation of an embryo.
iii) "State" means the State of California, and every county,
city, town and municipal corporation, and quasi-municipal
corporation in the state.
iv) "Viability" means the point in a pregnancy when, in the
good faith medical judgment of a physician, on the particular
facts of the case before that physician, there is a reasonable
likelihood of the fetus' sustained survival outside the uterus
without the application of extraordinary medical measures.
c) Provides that the state may not deny or interfere with a
woman's right to choose or obtain an abortion prior to viability
of the fetus, or when the abortion is necessary to protect the
life or health of the woman. (H&SC � 123466)
d) Specifies that the performance of an abortion is unauthorized
if either of the following is true: (H&SC � 123468)
i) The person performing or assisting in performing the
abortion is not a health care provider authorized to perform or
assist in performing an abortion pursuant to Section 2253 of
the Business and Professions Code.
ii) The abortion is performed on a viable fetus, and both of
the following are established:
(1) In the good faith medical judgment of the physician,
the fetus was viable.
(2) In the good faith medical judgment of the physician,
continuation of the pregnancy posed no risk to life or
health of the pregnant woman.
Existing Law, the Business and Professions Code (BPC):
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1)Provides that failure to comply with the Reproductive Privacy Act in
performing, assisting, procuring or aiding, abetting, attempting,
agreeing, or offering to procure an illegal abortion constitutes
unprofessional conduct. (BPC � 2253 (a))
2)Makes it a public offense, punishable by a fine not exceeding
$10,000 or imprisonment, or both, for a person to perform or assist
in performing a surgical abortion , and at the time of so doing, does
not have a valid, unrevoked, and unsuspended license to practice as
a physician and surgeon, or to assist in performing a surgical
abortion without a valid, unrevoked, and unsuspended license or
certificate obtained in accordance with some other provision of law
that authorizes him or her to perform the functions necessary to
assist in performing a surgical abortion. (BPC � 2253 (b) (1))
3)Makes it a public offense, punishable by a fine not exceeding
$10,000 or imprisonment, or both, for a person to perform or assist
in performing a nonsurgical abortion if the person does not have a
valid, unrevoked, and unsuspended license to practice as a physician
and surgeon, or does not have a valid, unrevoked, and unsuspended
license or certificate obtained in accordance with some other
provision of law that authorizes him or her to perform or assist in
performing the functions necessary for a nonsurgical abortion.
(BPC � 2253 (b) (2))
4)Provides that "nonsurgical abortion" includes the termination of
pregnancy through the use of pharmacological agents. (BPC � 2253
(c))
5)Establishes the Nursing Practice Act which provides for the
certification and regulation of registered nurses, nurse
practitioners and advanced practice nurses by the Board of
Registered Nursing within the Department of Consumer Affairs.
6)Provides that the practice of nursing includes direct and indirect
patient services, including but not limited to, the administration
of medications and therapeutic agents necessary to implement a
treatment, disease prevention, or rehabilitative regimen ordered by
and within the
scope of licensure of a physician, dentist, podiatrist, or clinical
psychologist.
(BPC � 2735 (b) (2))
7)Provides that the practice of nursing may be performed under
"standardized procedures," as defined, for specified functions,
treatments and procedures. (BPC � 2725)
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8)Provides that a certified nurse-midwife may furnish or order drugs
or devices, including controlled substances, if furnished or ordered
incidentally to the provision of family planning services, routine
health care or perinatal care, or care rendered consistent with the
certified nurse-midwife's practice; occurs under physician and
surgeon supervision; and is in accordance with standardized
procedures or protocols as specified. (BPC � 2746.51)
9)Provides that a nurse practitioner may furnish or order drugs or
devices, including controlled substances, if it is consistent with a
nurse practitioner's educational preparation or for which clinical
competency has been established and maintained; occurs under
physician and surgeon supervision; and is in accordance with
standardized procedures or protocols as specified. (BPC � 2836.1)
10)Defines the furnishing or ordering of drugs or devices by nurse
practitioners to mean the act of making a pharmaceutical agent or
agents available to the patient in strict accordance with a
standardized procedure. (BPC � 2836.2)
11)Establishes the Physician Assistant Practice Act which provides for
the licensure of physician assistants by the Physician Assistant
Committee within the Department of Consumer Affairs.
12)Provides that a physician assistant may perform those medical
services as set forth by the regulations of the Medical Board of
California when the services are rendered under the supervision of a
licensed physician and surgeon, and provides that the physician
assistant and the supervising physician and surgeon shall establish
written guidelines or protocols, as specified, for some or all of
the tasks performed by the physician assistant. (BPC � 3502)
13)Provides that a physician assistant while under the supervision of
a physician and surgeon may administer or provide medication to a
patient, or transmit orally or in writing a drug order under
specified conditions and protocols adopted by the supervising
physician and surgeon.
(BPC � 3502.1)
This bill:
1)Eliminates the terms "surgical" and "nonsurgical" in provisions # 2)
and # 3) above.
2)Eliminates provision # 4 above, which provides that a nonsurgical
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abortion includes the termination of pregnancy through the use of
"pharmacological agents."
3)Specifies that a nurse practitioner, a certified nurse-midwife, or a
physician assistant shall be able to perform " medication or
aspiration techniques " if they have a valid, unrevoked, and
unsuspended license or certificate obtained in accordance with law
that authorizes him or her to perform the functions necessary for an
abortion by medication or aspiration techniques, and after meeting
specified requirements.
4)Requires that in order to perform an abortion by aspiration
techniques, that a licensed nurse practitioner or a certified
nurse-midwife must complete training recognized by the Board of
Registered Nursing.
5)Specifies that the training protocols established by the Health Care
Workforce Pilot Project (HWPP) # 171 through the Office of Statewide
Health Planning and Development shall be considered as recognized by
the Board of Registered Nursing and deemed to satisfy this
requirement, and that a nurse practitioner or certified
nurse-midwife who has completed training and achieved clinical
competency through HWPP # 171 shall be authorized to continue to
perform abortions by aspiration techniques.
6)Requires that in order to receive authority from his or her
supervising physician and surgeon to perform an abortion by
aspiration techniques, a licensed physician assistant must complete
training either through training programs approved by the Physician
Assistant Committee as specified, or by training to perform medical
services which augment his or her current areas of competency as
specified in regulations.
7)Provides that the training protocols established by HWPP # 171 shall
be deemed to meet the standards of the Physician Assistant
Committee, and that physician assistants who have completed training
and achieved clinical competency through HWPP # 171 shall be
authorized to continue to perform abortion by aspiration techniques.
8)Provides that the provisions in Items #1) through #7) shall remain
in effect until January 1, 2015.
9)On January 1, 2015 the following provisions shall take effect:
a) Provides that failure to comply with the Reproductive Privacy
Act in performing, assisting, procuring or aiding, abetting,
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attempting, agreeing, or offering to procure an illegal abortion
constitutes unprofessional conduct. (There would be no change to
current Section 2253 (a) of the BPC or to this section as
proposed in the bill.)
b) Makes it a public offense, punishable by a fine not exceeding
$10,000 or imprisonment, or both, for a person to perform an
abortion, and at the time of so doing, does not have a valid,
unrevoked, and unsuspended license to practice as a physician and
surgeon, or to assist in performing a surgical abortion without a
valid, unrevoked, and unsuspended license or certificate obtained
in accordance with the law that authorizes him or her to perform
the functions necessary to assist in performing an abortion.
(The term "surgical" would continue to be eliminated from current
Section 2253 (b) (1) of the BPC as proposed in this bill.)
c) Makes it a public offense, punishable by a fine not exceeding
$10,000 or imprisonment, or both, for a person to perform an
abortion by medication or aspiration techniques, if at the time
of so doing, does not have a valid, unrevoked, and unsuspended to
practice as a physician and surgeon, or does not have a valid,
unrevoked, and unsuspended license or certificate to practice as
a nurse practitioner, a certified nurse-midwife, or a physician
assistant that authorizes him or her to perform the functions
necessary for an abortion by medication or aspiration techniques.
Provides that a nurse practitioner, certified nurse-midwife or
physician assistant who has completed training and achieved
clinical competency through the HWPP # 171 shall be authorized to
continue to perform abortions by aspiration techniques. (The
term "nonsurgical" would continue to be eliminated from current
Section 2253 (b) (2) as well as the term "pharmacological agents"
in current Section 2253 (c) as proposed in this bill. The terms
"medication and aspiration techniques" as it relates to an
abortion along with the requirement for HWPP # 171 training would
not change as proposed in this bill.)
10)Makes other technical, corrective and conforming changes.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. There are several Sponsors to this measure. They include
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Planned Parenthood Affiliates of California , the American Civil
Liberties Union of California ,
ACCESS to Women's Justice and NARAL Pro-Choice California .
According to the Author, this bill seeks to codify the public health
benefits observed in a rigorous Office of Statewide Health Planning
and Development Workforce Pilot Project (HWPP #171) coordinated by
the University of California, San Francisco (UCSF), which
demonstrates high patient safety and satisfaction, and low
complication rates for the safe, early reproductive health practices
addressed in the measure. As stated by the Author, this legislation
addresses a fundamentally important health access issue by: 1)
retaining authority under existing law for nurse practitioners
(NPs), certified nurse-midwives (CNMs) and physician assistants
(PAs) to perform medication abortion and, 2) by providing NPs, CNMs,
and PAs with clear authority to utilize existing and evolving
professional training to competency for the purpose of performing
aspiration abortions.
The Author explains that this bill is necessary due to the lack of
clarity contained in the current statute, Section 2253 or the BPC.
It specifies that medication abortion (i.e., "use of pharmacological
agents") may legally be performed by NPs, CNMs and PAs. There is,
however, a lack of consensus regarding other "nonsurgical"
procedures that would fall within the law. Due to this lack of
clarity, regulatory boards have limited the authorization to perform
procedures to medication. This bill is necessary to clarify that
NPs, CNMs and PAs are also authorized to perform aspiration
procedures.
The Author further explains that through HWPP #171, NPs, CNMs and PAs
received temporary authority to perform aspiration abortions under
the UCSF research study that shows that these three types of
clinicians can provide aspiration procedures with safety and patient
satisfaction equivalent to physicians. But the authority is limited
to clinicians associated solely with HWPP #171 and will conclude in
September, 2012. Without clear statutory authority, as argued by
the Author, the same way that they are authorized to perform
medication abortions, NPs, CNMs and PAs will not be able to perform
aspirations in the safe manner indicative of HWPP #171.
According to the Sponsors, one of the major reasons for this measure
is to assure that women have access to early abortion by aspiration
technique. The Sponsor's state that because an estimated one in
three women will decide to terminate a pregnancy by age 45, access
to abortion is an important aspect of women's reproductive health.
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Currently, more than 75% of all abortion procedures performed during
the first trimester are by aspiration technique. Many women,
especially low-income and underserved women, often do not have
sufficient access to these safe, early, non-surgical abortions,
because the statute does not clearly state that NPs, CNMs and PAs
may perform this procedure. In contrast, the clear statutory
authority of NPs, CNMs and PAs to provide medication abortions has
increased women's ability to access early abortion. However,
medication abortion is an option only through the first nine weeks
of pregnancy, while aspiration abortion is a non-surgical technique
that can be performed throughout the first trimester.
The Sponsors further state that many California counties lack an
abortion provider, requiring women to travel a significant distance
for care. By increasing the number of providers of non-surgical
abortions, this measure would improve women's access to earlier
abortions, and increase their ability to receive safe reproductive
health care from providers they already know and trust. California
will be following the lead of four other states, Montana, New
Hampshire, Oregon and Vermont, who have addressed lack of access to
comprehensive reproductive health care in communities by allowing
additional providers with the existing skill sets to perform early
terminations.
2.Background.
a) Reproductive Privacy Act. The Reproductive Privacy Act
codified the constitutional principles of Roe v. Wade and
replaced in its entirety the Therapeutic Abortion Act. In 1967,
Governor Ronald Reagan signed the Therapeutic Abortion Act, which
expanded legal abortion in California under very restrictive
criteria. Most of those restrictions were subsequently ruled
unconstitutional in the 1972 California Supreme Court case,
People v. Barksdale (1972) 8 Cal.3d 320, 105 Cal.Rptr 1. The
United States Supreme Court issued its landmark Roe v. Wade
(1973) 410 U.S. 959, 35 L.Ed.2d 694, and Doe v. Bolton, decisions
in 1973, which invalidated two of the three remaining provisions
of the Therapeutic Abortion Act.
Although Roe and Barksdale rendered much of the Therapeutic
Abortion Act obsolete, the Act itself was not repealed by the
Legislature until 2003, pursuant to SB 1301 (Kuehl, Chapter 385,
Statutes of 2002), the Reproductive Privacy Act. One rational
for the passage of this Act was the concern that the Unites
States Supreme Court may overturn Roe v. Wade, and it would,
therefore, be important to have a state law which would protect
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reproductive rights in the State of California. In 2003, the
California Assembly passed
AJR 2 (Jackson, Chapter 63, Filed with the Secretary of State June
19, 2003) urging Congress and the President to uphold the intent
and substance for Roe v. Wade and reiterated the elements of
reproductive rights.
b) Aspiration Technique and Procedure.
Description. Vacuum or suction aspiration uses aspiration to
remove uterine contents through the cervix. It may be used as a
method of induced abortion, a therapeutic procedure used after
miscarriage, or a procedure to obtain a sample for endometrial
biopsy. The rate of infection is lower than any other surgical
abortion procedure at 0.5%. Some sources may use the terms
dilation and evacuation or "suction" dilation and curettage to
refer to vacuum aspiration, although those terms are normally
used to refer to distinct procedures.
History. Vacuuming as a means of removing the uterine contents,
rather than the previous use of a hard metal curette, was
pioneered in 1958 by Drs Wu Yuantai and Wu Xianzhen in China, but
their paper was only translated into English on the fiftieth
anniversary of the study that "ultimately led to the technique
becoming the world's commonest and safest obstetric procedure.
Dorothea Kerslake introduced the method into the United Kingdom
in 1967, and published a study in the United States that further
spread the technique. Harvey Karnen in the United States refined
the technique the early 1970s with the development of the Karman
cannula, a soft, flexible cannula that avoided the need for
initial cervical dilatation and so reduced the risks of
puncturing the uterus.
Clinical Uses. Vacuum aspiration may be used as a method of
induced abortion, as a therapeutic procedure after miscarriage,
to aid in menstrual regulation, and to obtain a sample for
endometrial biopsy. It is also used to terminate molar
(abnormal) pregnancy. When used as a miscarriage treatment or an
abortion method, vacuum aspiration may be used alone or with
cervical dilation anytime in the first trimester (up to 12 weeks
gestational age). For more advanced pregnancies, vacuum
aspiration may be used as one step in a dilation and evacuation
procedure. Vacuum aspiration is the procedure used for almost
all first-trimester abortions in many countries.
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Procedure. Vacuum aspiration is an outpatient procedure that
generally involves a clinic visit of several hours. The
procedure itself typically takes less than 15 minutes. Suction
is created with either an electric pump (electric vacuum
aspiration or EVA) or a manual pump (manual vacuum aspiration or
MVA). Both methods use the same level of suction, and so can be
considered equivalent in terms of effectiveness and safety. The
clinician may first use a local anesthetic to numb the cervix.
Then, the clinician may use instruments called "dilators" to open
the cervix, or sometimes medically induce dilation with drugs.
Finally, a sterile cannula is inserted into the uterus and
attached via tubing to the pump. The pump creates a vacuum which
empties uterine contents. After a procedure for abortion or
miscarriage treatment, the tissue removed from the uterus is
examined for completeness. Expected contents include the embryo
or fetus as well as the decidua, chorionic villi, amniotic fluid,
amniotic membrane and other tissue. Post-treatment care includes
brief observation in a recovery area and a follow-up appointment
approximately two weeks later.
Advantages Over Dilation and Curettage. Dilation and curettage
(D&C), also known as sharp curettage, was once the standard of
care in situations requiring uterine evacuation. However, vacuum
aspiration has a number of advantages over D&C and has largely
replaced D&C in many settings. Vacuum aspiration may be used
earlier in pregnancy than D&C. Manual vacuum aspiration is the
only surgical abortion procedure available earlier than the 6th
week of pregnancy. Vacuum aspiration has lower rates of
complications when compared to D&C. Vacuum aspiration,
especially manual vacuum aspiration, is significantly cheaper
than D&C. The equipment needed for vacuum aspiration costs less
than a curette set. Unlike D&C, vacuum aspiration does not
require general anesthesia and so can be performed as an
outpatient procedure at a clinic rather than in a hospital
surgical setting. D&C is generally provided only by physicians.
Manual vacuum aspiration does not require electricity and so can
be provided in locations that have unreliable electrical service
or none at all. Manual vacuum aspiration also has the advantage
of being quiet, without the noise of an electric vacuum pump.
Complications. When used for uterine evacuation, vacuum
aspiration is 98% effective in removing all uterine contents.
Retained products of conception require a second aspiration
procedure. This is more common when the procedure is performed
very early in pregnancy, before 6 weeks gestational age. Other
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complications occur at a rate of less than 1 per 100 procedures
and include excessive blood loss, infection, injury to the cervix
or uterus, including perforation, and uterine adhesions.
c) Health Workforce Pilot Project Study #171. In an effort to
expand pool of education, trained and skilled California abortion
providers, the Advancing New Standards in Reproductive Health
(ANSIRH) program at the University of California, San Francisco
(UCSF) Bixby Center for Global Reproductive Health sponsored
Health Workforce Pilot Project (HWPP) #171 beginning in March 31,
2007, to evaluate the safety, effectiveness and acceptability of
NPs, CNMs, and PAs in providing first-trimester aspiration
abortion. HWPP #171 operates under the auspices of California's
Office of Statewide Health Planning and Development (OSHPD) to
improve health care access. For the duration of the project,
OSHPD provides a mechanism to temporarily suspend laws and
regulations that might otherwise restrict NPs, CNMs and PAs from
performing aspiration abortion. HWPP #171 is currently approved
through September 2012.
UCSF is collaborating on HWPP #171 with five Partner Organizations,
including Kaiser Permanente of Northern California and four
Planned Parenthood affiliates (Shasta Pacific, Mar Monte, Los
Angeles, and Pacific Southwest. These Partner Organizations have
trained approximately 45 NPs, CNMs and PAs who already offer a
broad spectrum of reproductive health care at their respective
organizations. The preliminary results, as indicated by the UCSF
Research study, indicate that patients are highly satisfied with
care provided by NPs, CNMs, PAs and physicians. Currently,
almost 8,000 patients have received these services. The UCSF
study compares the outcomes of abortions performed by NPs, CNMs
and Pas to an equal number of procedures performed by physicians,
for a total of approximately 16,000 procedures. The data show
similar rates of high patient satisfaction and low complications
in both groups. Abortion-related complications for NPs, CNMs and
PAs and physicians are similar according to the UCSF study, and
both are well below the average published rates for this
procedure (less than 2% for HWPP #171 compared to 5% in published
literature.)
d) Related Legislation This Session. AB 1306 (Donnelly, 2011)
required the person authorized to perform the abortion to provide
complete and full information on the potential physiological and
psychological impacts of an abortion, in both verbal and written
form, to any woman seeking an abortion in order to obtain her
informed consent to the abortion during a counseling session
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where only verified immediate relatives or legal guardians of the
woman may join her in the counseling room. This measure failed
passage in the Assembly Health Committee.
e) Prior Related Legislation. SB 1009 (Benoit, 2007) would have
enacted the Unborn Child Pain Awareness Act of 2008, to require,
with an exemption for medical emergency, the physician performing
the abortion to offer to the pregnant woman information and
counseling on fetal pain. Also required the Department of Public
Health to develop a related brochure and waiver form, for the
Medical Board of California to adopt regulations for revocation
or suspension of medical licenses for violation of this
requirement, and authorized the Attorney General and the woman or
her family to bring civil action for damages and penalties for
violation of this requirement. This measure failed passage in
the Assembly Health Committee.
SB 1487 (Hollingsworth, 2006) prohibited a physician and surgeon
from performing an abortion unless he or she has obtained the
written assurance from the patient that she understands that she
may not be coerced into having an abortion, and that her decision
to have an abortion is voluntary. Required a form to be signed
to that effect and to be placed in the patient's chart. This
measure failed passage in Senate Health Committee.
AB 2512 (Sharon Runner, 2006) was similar to SB 1009 which would
have enacted the Unborn Child Pain Awareness Act of 2006. This
measure failed passage in the Assembly Health Committee.
SB 147 (Runner, 2005) was also similar to SB 1009 and AB 2512 which
would have enacted the Unborn Child Pain Awareness Act of 2005.
Hearing was cancelled by the Author in Senate Health.
AB 669 (La Suer, 2006) would have required a physician and surgeon
who performs an abortion to advise the patient that she should
seek follow-up medical care, as prescribed. This measure failed
passage in this Committee.
AB 1427 (Mountjoy, 2005) would have required a physician and
surgeon performing an abortion on a minor to retain sufficient
tissue of the aborted fetus to permit DNA testing for the purpose
of determining paternity and establishing the guilt or innocence
of the accused in any criminal action regarding sexual crimes
relating to the aborted pregnancy. This measure failed passage
in Assembly Public Safety Committee.
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AJR 3 (Cohn, Chapter 83, Filed with the Secretary of State July 18,
2005) relative to the 32nd anniversary of Roe v. Wade, urging
Congress and the President to uphold the intent and substance for
Roe v. Wade and reiterated the elements of reproductive rights.
AJR 2 (Jackson, Chapter 63, Filed with the Secretary of State June
19, 2003) urging Congress and the President to uphold the intent
and substance for Roe v. Wade and reiterated the elements of
reproductive rights.
SB 1050 (Figueroa, Chapter 1085, Statutes of 2002) repealed one of
the penalty provisions for the unlawful practice of medicine
(Section 2053 of the BPC) which was a felony and combined this
provision with another provision which provided for only
misdemeanor violations. The penalty provision for the unlawful
practice of medicine in now contained in Section 2052 of the BPC
and provides that a violation of this section shall be a public
offense, punishable by a fine or imprisonment, or both.
SB 1301 (Kuehl, Chapter 385, Statutes of 2002) deleted provisions
of the Therapeutic Abortion Act and enacted the Reproductive
Privacy Act, which this analysis references and details on Page 1
and 6 above.
SB 370 (Burton, Chapter 692, Statutes of 2000) repealed Penal Code
provisions relating to an abortion and instead provided that
penalty provisions relating to the unlawful practice of medicine
shall apply, which could include a misdemeanor offense as well as
a felony offense, punishable by imprisonment in a county jail not
exceeding one year or in state prison.
3.Arguments in Support. The Sponsors believe that this measure will
ensure that women receive comprehensive reproductive health care
from local providers they know and trust by authorizing NPs, CNMs
and PAs to provide early safe abortion care, by aspiration
technique, under the terms of their licenses. The Sponsors argue
that current law allows NPs, CNMs and PAs to provide medication
abortions and assist in providing more complex procedures, but that
they are specifically barred from providing any other type of
abortion, including an aspiration abortion. The Sponsors indicate
that the UCSF study conducted for five years has evaluated the
safety, effectiveness and acceptability of NPs, CNMs and PAs
providing aspiration abortion and that the study has shown
exceptionally low rates of complications, determining that
aspiration abortion is a safe and effective procedure when provided
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by competent health professionals, including NPs, CNMs and PAs.
According to the
Sponsors, 52 percent of California counties lack an abortion provider
(not counting hospitals, which typically provide a small number of
procedures for medical and fetal indications). The lack of
providers means that women must often travel hundreds of miles to
obtain termination services, adding to the cost of receiving care.
Delays in care due to cost of travel also put women at greater risk
by pushing them further into pregnancy, which may require a more
invasive procedure and increase the cost. The Sponsors strongly
believe that this measure will strengthen our state's legacy of
protecting women's health and ensuring their access to safe and
early care in their own communities and will help to provide women
with comprehensive and better coordinated reproductive health care.
All of the health care provider groups affected by this measure are in
support of this bill. The California Association for Nurse
Practitioners (CANP) believes this measure is consistent with its
mission to furthering the practice of NPs in California and to
promote expanding the scope of practice for NPs. CANP also believes
that performance of these procedures is consistent with the
education and training held by NPs. Additionally, as fewer
physicians are willing or available to provide these services, it
becomes important for women to have access to all types of health
care services provided by non-physicians. The California
Nurse-Midwives Association (CNMA), which represents CNMs, points out
that aspiration abortion is a very safe medical procedure with a
minor complication rate and with very few major complications and
that the first trimester aspiration procedure is similar to other
intrauterine procedures that CNMs currently perform. CNMs already
provide medication abortion and they currently have the skills to
perform aspiration abortion as an essential competency for midwifery
practice. The CNMA believes that every woman has the right to make
reproductive health choices in collaboration with health care
providers, including CNMs, who choose to perform aspiration abortion
in early pregnancy as part of the provision of safe and effective
women's health care. The CMNA sees this bill as an evidence-based
measure which will increase access to reproductive health care
services for women in California. The California Academy of
Physician Assistants believes this measure will provide
clarification for the role of the PA in performing a medical
procedure when practicing under physician supervision and will
clarify that PAs may be trained to perform a procedure that is
delegated to them by the supervising physician and is with the PAs
skill set and within the scope of the supervising physician.
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Physician groups in support include the California Medical Association
(CMA) and the Physicians for Reproductive Choice and Health (PRCH).
PRCH states that aspiration abortion is safe and effective, whether
provided by physicians or advance practice clinicians (i.e., NPs,
CNMs and PAs) (APCs). PRCH further states that this bill is
essential to improve women's reproductive health access in
California. There is a shortage of providers in many of
California's counties and this creates barriers to reproductive
health services, with related health consequences. This measure
will increase the number of providers offering critical reproductive
health services particularly in historically underserved rural
communities throughout California. CMA also indicates that this
measure will help improve access to reproductive health care by
authorizing only properly trained NPs, CNMs and PAs to perform
abortions using uterine aspiration techniques. CMA points out that
when any allied health professional seeks to expand their authority
or scope of practice, it is important that such expansion is
accompanied by an appropriate level of training and education. CMA
has asked that the midlevel health care practitioners, who would
perform uterine aspiration techniques, also obtain the training
necessary to ensure the procedure was performed in the safest manner
possible. With the provision of the training requirement in this
bill, CMA believes this measure will provide a fair balance between
health care access and patient safety.
The Service Employees International Union (SEIU), which represents
over 150,000 health care workers, states that this is "a bill to
clear the way for advance practice clinicians to perform early term
abortions." SEIU views this measure to be about women's access to
health care, and not clinician's scope of practice. They argue that
the evidence is clear that not only is this procedure within the
scope of advanced clinician's practice, but that they are able to
perform it safely. SEIU is convinced, however, that some simple
changes in law will remove barriers to these clinicians in making
themselves available in all counties.
There are also many other groups which support women's reproductive
health care in support of this measure. Most notable comments are
made by the California Latinas for Reproductive Justice (CLRJ) in
discussing the disparities which exist for women of color in
obtaining reproductive services. CLRJ indicates that access to
comprehensive reproductive health care is especially important in
the Latina/o community, which has among the lowest access to
reproductive health services and experiences higher reproductive
health disparities. "While Latinas represent 37% of women in
California, they comprise 60% of uninsured women. Low-income
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Latinas are likely to seek care in community settings where APCs
tend to practice. At the same time, about half of pregnancies among
Latinas are unintended. By permitting women to receive
comprehensive reproductive health care from their local providers,
�this bill] will provide much-needed equity in access to
comprehensive reproductive health care for all women, particularly
Latinas and other low-income women of color experiencing limited
access to health care."
4.Arguments in Opposition. The California Catholic Conference (CCC)
opposes this measure as an ill-advised and needless reduction in the
standard of care for women. CCC argues that if an abortion is to be
given it should be by a licensed physician. Although opposed to the
practice of abortion, until it becomes illegal, CCC advocates for
restrictions on its practice. "In the name of enhancing access,
convenience and cost-savings, this bill will do nothing to make
abortion 'safe and rare.' Using the language of 'choice,' as a
rationale the bill obscures the seriousness of the abortion decision
for the woman." CCC asks the question: "What other serious medical
intervention would doctors even consider as being worthy of such a
change in the professional scope of practice? CCC sees this measure
as an attempt to lower the standards of training for an abortionist.
The California Nurses Association (CNA) which represents over 86,000
registered nurses and nurse practitioners is opposed to this
measure. CNA believes this measure is ill-conceived and unnecessary
while a study is still in progress under OSHPD's HWPP #171. They
believe that although early reports from the pilot project
demonstrates the safety and efficacy of the training provided under
the pilot project and that it will prove that APCs can provide early
term abortions as safely and effectively as physicians, this bill is
premature and poses a threat to the practice of NPs and CNMs who
provide low income women's primary care services who may need early
trimester abortion services. CNA raises a number of issues in its
opposition to this bill and some of these major issues have been
indicated below. The Sponsors have also responded to these issues
and their comments to each are included below as well.
5.Response to Arguments of CNA by Sponsors.
a) This measure is unnecessary because first trimester aspiration
abortions require the performance of functions that are well
within the current legal authority of APCs. CNA states that
according to the HWPP #171, "California's antiquated abortion
law, the Therapeutic Abortion Act of 1967, was dramatically
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amended in 2002. One of the critical changes from the previous
abortion law is the elimination of the 'physician only'
requirement regarding the lawful performance of abortions. The
Medical Practices Act, BPC Section 2253, now allows licensed or
certificated health professionals to 'assist' or to 'perform'
legal abortions. Specifically, the new law authorizes duly
licensed or certified health professionals to perform the
functions that are within their scope of practice for the purpose
of assisting or performing an abortion procedure." CNA further
indicates that the HWPP # 171 goes on to explain why the use of
aspiration technique does not fit into any definition of a
surgical procedure. CNA indicates that the HWPP # 171application
also clearly states, "Upon review of the legislation, it is our
position that the Medical Practices Act allows APCs to perform
nonsurgical abortions where the functions to be performed fall
within their scopes of practice. Thus, first trimester
aspiration abortions require the performance of functions that
are well within the legal authority of APCs."
Sponsors point out that while the original HWPP #171 application
stated that aspiration abortions are within the legal authority
of APCs, the application was amended prior to the pilot project
approval to reflect the uncertainty of that assertion and the
need for suspending BPC Section 2253. The approved version of
the application states in relevant part, "There is a discrepancy
of opinion among health care professionals, boards and
organizations as to whether APCs are prohibited from performing
aspiration abortion under BPC Section 2253. Because of this
discrepancy in interpretation, ANSIRH seeks a waiver of BPC
Section 2253 for trainees participating in the pilot project for
the duration of the project." This amendment in the application,
as Sponsors state, responded to the clear disagreement within the
health professional community as to whether aspiration abortion
should be classified as surgical or nonsurgical abortion, and,
therefore, whether the identified health professionals could
legally perform aspiration abortion procedures. The suspension
of BPC Section 2253, along with Section 75043 of Title 22 of the
California Code of Regulations (CCR) and Section 1399.541 of
Title 16 of the CCR, was deemed necessary for APCs to legally
provide aspiration abortion. A waiver of these provisions was
therefore granted by OSHPD with the approval of the HWPP #171
application on March 31, 2007.
b) This measure is premature because the results of the HWPP #171
have not been completed, published and subject to peer review.
CNA indicates that they are a longstanding member of the
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California Coalition for Reproductive Freedom along with the
Sponsors of this measure and have actively participated in the
coalition activities around getting the Reproductive Privacy Act
passed into law. A central value of CNA is protecting access to
safe and affordable health care and CNA knows that registered
nurses play a significant role in the provision of safe and
affordable health care services. CNA is very disappointed in the
coalition partners who are the Sponsors of this measure and who
have suddenly and with early consultation with CNA taken on
legislation that directly impact its members. As stated by CNA,
"This legislation demonstrates a lack of confidence in the
integrity of the HWPP process. The pilot project should be
completed, published, and then be subjected to peer review as was
planned." CNA argues that this legislation is premature."
The Sponsors contend that the legislation is not premature because
the Pilot Project, which anticipates legislative action, requires
only that the finding from the Project regarding the safety and
efficacy be provided to the Legislature when legislative change
is being considered. Academic publication of the HWPP project
results in not a requirement of the waiver mechanism. Numerous
prior HWPP projects have been the basis for legislative change
and academic publication of study results did not occur in those
cases. The Sponsors indicate that the UCSF investigators have
conducted the final analyses related to the two main study
questions:
1) Can APCs be trained to achieve competence in aspiration
abortion?
2) Is the provision of aspiration abortion by these clinicians as
safe as the care provided by physicians?
Sponsors state that the answer to both questions is yes. The
Sponsors point out that UCSF continues to collect data on the
HWPP project and will continue to provide data reporting to OSHPD
on a quarterly basis until the end of the waiver period;
September 2012.
c) Elimination of the term "nonsurgical" in BPC Section 2253 (b)
(2) will place a limitation on future abortion techniques or
procedures provided by APCs. The CNA argues that the BPC Section
2253(b)(2) expressly authorizes a person with a valid license
obtained in accord with some other provision of law, e.g. the
Nursing Practice Act for NPs, to perform nonsurgical abortions.
In the BPC Section 2253(c), "nonsurgical abortion" is not limited
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to a specific procedure. BPC Section 2253(c) addresses
"nonsurgical abortions" and expressly does not limit that term to
certain specified abortion techniques. Instead Section 2253(c)
lists a particular abortion technique which is encompassed within
the phrase "nonsurgical abortions" - abortion by pharmacological
agents. The legislative history of the amendments to the BPC
Section 2252, which was done as part of the enactment of the
Reproductive Privacy Act in 2002, shows that Section 2253(c) was
designed to "allow for future advancements in medical science
relative to nonsurgical abortion by not limiting them" while
clarifying that abortion through pharmacological agents "is an
appropriate method to be included among other nonsurgical
abortion techniques." �Senate Bill Analysis on Third Reading,
April 8, 2002.] CNA believes that Section 2253 allows for
regulatory interpretation of "nonsurgical abortions" to cover
first-trimester aspiration abortions as another procedure besides
pharmacological abortions which APCs may perform. By eliminating
the term "nonsurgical" and the use of a pharmacological agent as
a nonsurgical treatment, and in its place using the terms
"abortion by medication or aspiration techniques," CNA asserts
that this will limit the authority of APCs to perform just two
procedures - "an abortion by medication or aspiration
techniques."
Sponsors contend that the outdated language in current law
divides abortion into "surgical" and "nonsurgical" and does not
coincide with the modern practice of abortion care. Instead, one
of three techniques are utilized to empty the contents of a
uterus; aspiration, medications, and instruments. Advances in
abortion in the future will involve new combinations of these
techniques and newer pharmacological agents and tools. The
proposed language in the bill will not limit practitioners rather
it will allow for advances in abortion care. Sponsors also
indicate that in an advisory statement on the Reproductive
Privacy Act, the Board of Registered Nursing (BRN) acknowledged
the application of the provision regarding "nonsurgical"
abortions to its licentiates. The advisory specifies that NPs
and CNMs may only perform nonsurgical abortions by furnishing or
ordering medications.
�It should be noted that the BRN also issued an opinion recently
on February 14, 2012, to the American Congress of Obstetricians
and Gynecologists where it restated its advisory that a NP or CNM
may perform or assist in performing functions necessary for
nonsurgical abortion by furnishing or ordering medications in
accord with his or her approved standardized procedure, and that
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a registered nurse may perform or assist in performing the
functions necessary for a nonsurgical abortion including
medication administration and patient teaching. There was no
mention by the BRN of other procedures which would be permissible
under BPC Section 2053, either by regulation or otherwise.
Moreover, the minutes from the Physician Assistant Committee
meeting dated March 23, 2006, indicated a need for legislation in
order for a PA to perform aspiration abortion outside of an
academic study and pilot project.]
d) Elimination of the term "surgical" in BPC Section 2253 (b) (1)
will have net effect of only allowing physicians to perform
abortions and further restricting abortion rights. The CNA
argues that deleting the modified "surgical" when describing
abortions that only physicians may perform is poor drafting and
invites ideological opponents of a woman's right to abortion to
argue that the net effect of the law is that only physicians may
perform abortions. As stated by CNA: "�The bill] blurs the
sharp clean line in exiting law between procedures what only
physicians may perform - surgical abortions - and procedures that
advance practice clinicians may perform - nonsurgical abortions.
Instead of that bright line, �this bill] describes "abortion" as
a procedure only physicians may peform and 'abortion by
medication or aspiration technique' as procedures advance
practice clinicians may perform. The dividing line has been
muddied because an aspiration abortion is necessarily also an
abortion. According to Section 2253 (b)(1), if a procedure is an
abortion, only a physician may perform it. That conflicts with
Section 2253(b)(2) which allows advance practice clinicians to
perform aspiration abortions. Deleting 'surgical' from the
phrase 'surgical abortion' in Business and Professions Section
2253(b)(1) invites further efforts to restrict abortion rights,
something no one associated with this bill wants."
The Sponsors argue that this measure reduces confusion and it does
not restrict access to health care because it ensures patient
access to safety, early abortion procedures that are specifically
named in the bill. It is precisely because of the lack of
clarity in BPC Section 2253 caused by the terms "surgical" and
"nonsurgical" that the Sponsors are proposing to eliminate this
inappropriate demarcation. Sponsors contend that they are
aligning California law with the way in which abortion is taught,
performed and understood by health professionals. "The bill
simplifies current law by specifying who can perform which
procedures. This clarification is essential in providing
protection to patients as well as practitioners. As CNA points
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out, the Business and Professions Code identifies that a
physician is authorized to 'sever or penetrate the tissues of
human beings,' which historically, is medical definition of
'surgical.' As we all know, there are many instances where
advanced practice nurses sever or penetrate tissue which are not
considered the performance of surgery. These activities include
injections, blood draws, and simple wound treatments. Moreover,
procedures that were once considered surgery, such as cervical
and endometrial biopsies, vasectomies, circumcision, and uterine
aspiration in the absence of a pregnancy, are now routinely being
done by advanced practice nurses under standardized procedures
developed in collaboration with physicians." As pointed out by
the Sponsors, the text of proposed BPC Code 2253 (b)(1) starts by
saying: "Except as provided in paragraph (2). . ." only a
physician may perform abortions. Paragraph (2) establishes the
exception by specifying that APCs are authorized to perform
medication and aspiration abortions. "This language does not
restrict abortion access."
6.Legislative Counsel Opinion, Dated April 6, 2012. Legislative
Counsel was recently asked whether existing law authorizes a NP,
CNM, or PA to perform an aspiration abortion. It is the opinion of
Counsel that existing law does not authorize a NP, CNM or PA to
perform an aspiration abortion. Counsel reached the conclusion that
an aspiration abortion is a surgical abortion , as that term is used
in BPC Section 2253 (b)(1), and, consequently may be performed only
by a licensed physician and surgeon.
NOTE : Double-referral to Public Safety, second.
SUPPORT AND OPPOSITION:
SUPPORT (Sponsors)
ACCESS Women's Health Justice
American Civil Liberties Union of California
NARAL Pro-Choice California
Planned Parenthood Affiliates of California
SUPPORT
ACT for Women and Girls
American Nurses Association of California
California Academy of Family Physicians
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California Academy of Physician Assistants
California Association of Nurse Practitioners
California Latinas for Reproductive Justice
California Medical Association
California Nurse-Midwives Association
Law Students for Reproductive Justice
Maternal and Child Health Access
Naral Pro-Choice California
National Asian Pacific American Women's Forum
National Center for Youth Law
Physicians for Reproductive Choice in Health
Planned Parenthood Action Fund, Inc. of Santa Barbara, Ventura
and San Luis Obispo Counties, Inc.
Planned Parenthood Advocacy Project Los Angeles County
Planned Parenthood Affiliates of California
Planned Parenthood Mar Monte
Planned Parenthood of Pasadena and San Gabriel Valley, Inc.
Planned Parenthood Shasta Pacific Action Fund
Santa Cruz Mujeres Women's Health Center
Service Employees International Union
Women's Community Clinic
Numerous Individuals
OPPOSITION
California Catholic Conference
California Nurses Association
Consultant:Bill Gage