Let Midwives and Nurse Practitioners Provide First-Trimester Abortions, Says Federal Court

"First trimester abortions, which typically require only medication, do not require the onsite presence of a licensed physician."

As Georgia, Ohio, and several others states move to ban abortion after a few weeks of pregnancy, Virginia this week brings us a rare bright spot on the reproductive freedom front. A federal judge there just ruled against the state's mandate that only physicians can prescribe abortion pills or otherwise provide first-trimester abortions. And the decision, from U.S. District Judge Henry E. Hudson, could have influence across the United States.

Virginia is one of 34 states that have said only physicians can perform first-trimester abortions, even though "a consensus appears to have evolved" that this is medically unnecessary, as Judge Hudson puts it in his May 6 decision.

This makes the U.S. District Court for the Eastern District of Virginia "the first federal court to strike down a law prohibiting advanced practice clinicians from providing first-trimester abortion care," says the Center for Reproductive Rights (CRR), which represented the groups challenging the Virginia law. Their lawsuit was filed in June 2018 and the district court heard arguments on April 8.

"We are challenging these laws in several other states and hope those courts will follow Virginia's lead," says CRR attorney Jenny Ma.

The Virginia law exempted only physicians from the state's general criminal ban on abortion, and thereby excluded "advanced practice clinicians" such as nurse practitioners and certified nurse midwives from being able to legally provide abortion services.

"There appears to be no controversy between the parties that [advanced practice clinicians] are competent and capable of performing first trimester abortions less expensively in a non-hospital setting," writes Hudson. Nor is there any "genuine issue of material fact as to whether the Physician-Only Law poses a substantial burden on a woman's access to first trimester abortion care."

In addition, Hudson writes, "both parties agree that the constitutionality of the abortion restrictions at issue in this case must be reviewed by applying the undue burden test articulated by the Supreme Court" in Planned Parenthood v Casey. He explains:

The Court in Casey reaffirmed a woman's right to terminate a pregnancy prior to viability. It also recognized a state's legitimate interest in ensuring that abortion is performed under circumstances that ensure the maximum safety for the patient. The Court in Casey, however, emphasized that "a statute which, while furthering…[a] valid state interest, has the effect of placing a substantial obstacle in the path to a woman's choice cannot be considered a permissible means of serving its legitimate ends." The Court defined an undue burden as "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus."

The judge notes that "as with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion." But Virginia's physicians-only law, he says, goes beyond that. "After a careful review of the experts' opinions from both sides, a consensus appears to have evolved that first trimester abortions, which typically require only medication, do not require the onsite presence of a licensed physician." The law "is consequently unduly burdensome."

The judge didn't give the plaintiffs everything they wanted: He denied their motion for summary judgement with regard to the physician-only law's restrictions on second-trimester abortions. On several other state regulations related to first- and second-trimester abortion, the case will continue to a trial.