California Legislature Oks Non-physician Abortions, Declares Support for Women's Right to Abortion

In the first major revamping of the state's 1967 Therapeutic Abortion Act, the California legislature has expanded the range of personnel who can perform non-surgical abortions and passed a measure that says California will "protect" a woman's right to abortion even if the U.S. Supreme Court overturns Roe v. Wade.

The so-called "Reproductive Privacy Act" (SB 1301) removes the provision assuring that all abortions would be done by "a holder of the physician's and surgeon's certificate." Under SB 1301 "non- surgical" abortions may now be performed by nurse-midwives, nurse practitioners, and physician assistants. Surgical abortions will still be done by physicians.

While a 1972 California Supreme Court case eliminated many of the provisions of the 1967 Therapeutic Abortion Act, it left intact provisions that required physician-only abortions. The Court said, "[W]e perceive no constitutional impediments... to those portions of the [Health and Safety Code] section that require abortions to be performed by holders of physician's and surgeon's certificates."

The U.S. Supreme Court as recently as 1997 in Mazurek v. Armstrong upheld a Montana statute that restricted the performance of abortions to licensed physicians. (Subsequently, citing the state constitution, the Montana Supreme Court declared that the limitation unconstitutional.)

California state Senator Ray Haynes (R-Murietta) and Assemblyman Tim Leslie (R-Tahoe City) attempted to retain the physician-only provisions by amendments offered on the floors of the Senate and Assembly. The amendments were rejected, largely along party lines.

SB 1301 passed 22-12 in the 40-member Senate and 50-25 in the 80-member Assembly. Its passage came despite the pleas of pro-life lawmakers not to lower the standard of care for women choosing drug-induced abortions, especially in light of the recent " adverse events" report of the federal Food and Drug Administration, which included two deaths following RU486 abortions and a 21-year-old patient who suffered a cardiac arrest.

At the end of a particularly difficult hearing on the bill, Sen. Haynes warned that it appeared those pushing for non-physician abortions would have to see women die before they would realize the dangers in removing the physician from pharmacologically induced abortions. In the closing debate on the Assembly floor, Assemblyman Leslie pleaded with his colleagues, "[D]on't take the physician out of the process," adding, "that's a tragic, tragic mistake." Both argued strongly that the RU486 regimen requires the expertise of a physician. (See story, page 12.)

Proponents of SB 1301 argued that this was not a change in scope of practice for these non-physician professionals because they already have authority in the law to furnish prescriptions under the supervision of a physician.

Opponents call that disingenuous. They argue that removing that portion of a 35-year-old law barring non-physicians from doing abortions is a drastic change in "scope of practice," and that when legislators granted nurse-midwives and others the right to furnish medications, they certainly did not have in mind performing drug-induced abortions, which include a risk of death, on minors without parental involvement.

Pro-abortion Gov. Gray Davis is expected to sign the legislation that makes California the first state to make a distinction in the law between surgical and drug-induced abortions.

"California has already witnessed the spectacle of strip-mall abortionists who prey on women in the poorer areas of Los Angeles and Orange County," said Brian Johnston, executive director of California Pro-Life Council. "Imagine the possible proliferation of nurse-midwife operations, as a new piece of the California abortion industry!"

State Senator Sheila Kuehl (D-Santa Monica), the author of SB 1301, said the new legislation buttressing the "right" to abortion was necessary in light of the current situation. "With an anti- choice president, an anti-choice Congress and the Supreme Court one vote away from unraveling Roe v. Wade, it is now more important than ever that we protect the reproductive rights of Californians," Kuehl said.

The Reproductive Privacy Act declares that "the state may not deny or interfere with a woman's fundamental right to choose to bear a child or to choose to obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman."