BILL ANALYSIS �
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|Hearing Date:April 26, 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 25, 2012 Fiscal: Yes
SUBJECT: Abortion.
SUMMARY: This bill would allow a nurse practitioner, certified
nurse-midwife and physician assistant who has completed training in a
specified Health Workforce Pilot Project through the Office of
Statewide Health Planning and Development, and received such training
on or before January 1, 2013, to continue to perform abortions by
aspiration techniques.
NOTE : Double-referral to Senate Public Safety Committee, first. This
bill was heard in Public Safety Committee on April 24, 2012, and
approved by a 5 to 2 vote.
Existing law, the Health and Safety Code (HSC):
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: (HSC � 123462)
i) Every individual has the fundamental right to choose or
refuse birth control.
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
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Act.
b) Provides for the following definitions: (HSC � 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. (HSC � 123466)
d) Specifies that the performance of an abortion is unauthorized
if either of the following is true: (HSC � 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):
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
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$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)
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
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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)States that it is the intent of the Legislature to ensure that state
policy allows qualified health care practitioners to provide safe,
early, effective, and accessible aspiration abortions within the
scope of their licenses.
2)Allows a nurse practitioner, certified nurse-midwife and physician
assistant who has completed training in a specified Health Workforce
Pilot Project through the Office of Statewide Health Planning and
Development, and received such training on or before January 1,
2013, to continue to perform abortions by aspiration techniques.
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FISCAL EFFECT: Unknown.
COMMENTS:
1.Purpose. There are several Sponsors to this measure. They include
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 Sponsors, this bill is necessary due to the lack of
clarity contained in statute. Existing law specifies that a nurse
practitioners (NPs), certified nurse-midwives (CNMs) and physician
assistants (PAs) may legally perform a "nonsurgical" abortion that
includes termination of pregnancy through the use of pharmacological
agents. There is a lack of consensus regarding other "nonsurgical"
procedures that would fall within the law. Due to the lack of
clarity, regulatory boards have been unclear about whether these
practitioners may be limited to performing abortion procedures which
only involve the use of pharmacological agents, or whether other
procedures would be permissible within their current scope of
practice.
The Sponsors indicate that this measure will at least, for now, allow
those NPs, CNMs and PAs who have been participants in the Health
Workforce Pilot Project (HWPP #171) through the Office of Statewide
Health Planning and Development, continue to perform aspiration
abortions.
The Sponsors point out that through the HWPP #171, NPs, CNMs and PAs
received temporary authority to perform aspiration abortions under a
University of California San Francisco research study that shows
that these three types of advanced practice 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 authorization - the same
way that they are authorized to perform medication abortions - NPs,
CNMs and PAs who have been part of this study will not be able to
perform aspiration abortions beyond September of 2012.
The Sponsors further point out that Legislative history provides
precedence and public value for approving legislation based on
favorable findings from strong and reliable study data associated
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with an ongoing HWPP, such as HWPP #171. In 2010, the Center for
the Health Professions reviewed HWPPs from 1973 to 2005, and found
that 65 percent of the approved and implemented projects affected
some type of policy change.
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 United
States Supreme Court may overturn Roe v. Wade, and it would,
therefore, be important to have a state law which would protect
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
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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 Dr.s 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 Karman in the United States refined
the technique in 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.
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
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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 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. California's
Health Workforce Pilot Projects (HWPP) Program was established in
1972, and is administered by the Office of Statewide Health
Planning and Development. The HWPP program offers an opportunity
to safely demonstrate and evaluate new approaches to care
delivery before changing laws and regulations. HWPP
demonstrations can allow health care workers to acquire new
skills; develop new health care occupations or accelerate
training in existing categories; or teach new roles to providers
with no prior training. The HWPP program has played a role in
the passage of pivotal legislation, such as the Nurse Practice
Act, Dental Practice Act, and Emergency Medical Services Act,
among many others.
According to the Center for the Health Professions at UCSF, which
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in 2010 conducted a review of HWPP Programs from 1973-2005, a
total of 171 applications were made to HWPP, and of the 171
applications 121 were approved and more than 65 percent of the
approved and implemented projects affected some type of policy
change. At the same time, many pilot projects appear to have
been run well with exemplary results for the practitioners and
patients in terms of improved access, cost savings, or health
outcomes. UC System and California State University-sponsored
projects achieved some type of regulatory or legal change in over
80 percent and 60 percent, respectively, of their pilot
applications. As an example of a health care practitioner
profession, nurses achieved some type of policy change in more
than 60 percent of their pilots. Approximately 40 pilots were
run which were designed to demonstrate nurses' ability to
function in expanded roles. Many of these were coordinated
efforts demonstrating the same objectives at multiple locations.
Other practitioner groups, including EMTs and dental auxiliaries,
followed the same model with success.
In an effort to expand the 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 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,
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for a total of approximately 16,000 procedures. The data shows
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 2348 (Mitchell, 2012)
allows a registered nurse (RN) to dispense drugs or devices upon
an order by a certified nurse-midwife (CNM), nurse practitioner
(NP), or physician assistant (PA) if the RN is functioning within
a licensed primary care clinic, as specified, and allows RNs to
dispense hormonal contraceptives pursuant to standardized
procedures, developed in compliance with current law defining
standardized procedures that RN's may implement, if the RN is
functioning within a licensed primary care clinic, as specified.
This measure passed out of the Assembly Business, Professions and
Consumer Protection Committee on April 24, 2012, by a vote of 5
to 3. It is now in Assembly Rules Committee for possible
re-referral.
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 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
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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 the 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.
The 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 the Assembly Public Safety Committee.
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.
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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. (Prior Version of This Measure.) 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 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
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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.
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
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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 who are 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
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."
The California Academy of Family Physicians (CAFP) has a "Support if
Amended" position and believe that the measure should ensure that
all mid-level practitioners undergo similar training to that which
physicians must undergo to perform abortions through aspiration and
that current supervision requirements be maintained. CAFP also
maintains that
implementation of the law should be delayed until the peer review
validation process for HWPP # 171 is completed.
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4.Arguments in Opposition. (Prior Version of This Measure.) 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.
Other groups opposed include American Association of Pro-Life
Obstetricians and Gynecologists , California ProLife Council, Inc. ,
California Nurses for Ethical Standards and Life Legal Defense
Foundation among others. These opponents argue that non-physicians
should not be able to perform "aspiration" abortions; that this type
of procedure is a surgical abortion even though there have been
efforts to minimize this type of abortion by calling it an
"aspiration" abortion. Mid-level practitioners do not have the
depth of training to be providing this type of abortion. Serious
complications may arise and only a physician would have the depth of
training and hospital privileges to deal with them. By focusing on
the fact that this is somehow a lesser abortion procedure diminishes
the role of the physician in the decision-making process and the
need for the patient to have informed consent in agreeing to such a
medical procedure. The opponents state that allowing these
mid-level practitioners to perform these abortions within the
abortion clinic setting would be authorizing inferior care for women
and set a very dangerous precedent.
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
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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. (Prior Version of This
Measure.)
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
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."
CNA points out that a recent appellate court decision (California
Society of Anesthesiologists et al. v. Superior Court of City and
County of San Francisco) supports the evolution of nursing
practice that overlaps medical practice in which the court
stated: "As nursing becomes more specialized, many nursing
functions will inevitable overlap with physician functions." The
court goes on to state that there are also functions that are
legitimately already part of the practice of nursing. CNA
further notes that even Legislative Counsel got it wrong when it
came to the conclusion that a Nurse Anesthetist could only
perform anesthesia under the supervision of the physician. The
court found that supervision was not necessary as it interpreted
the Nurses Practice Act. Because of these mistaken
interpretations of the Nurses Practice Act, CNA believes that
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further collaboration and discussion among interested parties is
necessary in the context of this measure.
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
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
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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 is 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 provisions 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 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
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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 is 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
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
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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 existing 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 perform 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
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
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exception by specifying that APCs are authorized to perform
medication and aspiration abortions. "This language does not
restrict abortion access."
6.Legislative Counsel's 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.
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 (Received Prior to the April 25, 2012, Amended Version of the
Bill)
ACT for Women and Girls
American Nurses Association\California
California Academy of Family Physicians
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, Sacramento Chapter
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.
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Planned Parenthood Shasta Pacific Action Fund
Santa Cruz Mujeres Women's Health Center
Service Employees International Union
Women's Community Clinic
Numerous Individuals
SUPPORT IF AMENDED (Received Prior to the April 25, 2012, Amended
Version of the Bill)
California Academy of Family Physicians
OPPOSITION (Received Prior to the April 25, 2012, Amended Version of
the Bill)
American Association of Pro-Life Obstetricians & Gynecologists
California Catholic Conference
California Federation of Republican Women
California Nurses Association
California Nurses for Ethical Standards
California ProLife Council, Inc.
Life Legal Defense Foundation
Life Priority Network
Several Individuals
NEUTRAL (Current Version of the Bill)
California Nurses Association
Consultant:Bill Gage