Capitol Watch: Nurses, midwives look for clarity on abortion

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ALBANY, N.Y. (AP) — There is still some uncertainty about how nurse practitioners and midwives are affected by a law that was supposed to expand the number of New York health care providers who can perform abortions.

In January, the state Legislature codified a “fundamental right” to have an abortion at a time when some states have restricted access. The law legalized abortion after 24 weeks of pregnancy if a woman’s health is at risk or if the fetus is not viable.

The law says a health care provider acting within “his or her lawful scope of practice” may perform an abortion, but it doesn’t specify which practitioners can provide which types of abortion services.

That lack of detail has prompted the state’s education department, which licenses health care professionals, to reach out to Gov. Andrew Cuomo and the Legislature to understand how the law applies to midwives and nurse practitioners.

Existing rules don’t exactly say “whether abortion services are even within the scope of practice for midwives,” the department said in an email responding to questions from The Associated Press.

Nurse-midwife Eugenia Montesinos, who works in New York City and is one of the state’s roughly 1,200 licensed midwives, said midwives often work in hospitals and can already administer medication that brings about abortion in New York. She said the state should make it clear that midwives are “independent professionals” who can provide abortions in the first trimester with adequate training.

“Even though we mostly do pregnancies, we should also participate when a women does want to go through that,” she said.


The New York Department of Health has previously said physician assistants can provide abortion care under a physician’s supervision, and the New York State Board for Nursing has recognized nurse practitioners can perform abortion procedures that don’t include surgery. Midwives, meanwhile, can prescribe and administer drugs in New York.

One of the law’s lead sponsors, Sen. Liz Krueger, a New York City Democrat, said before it passed that it would ensure that physician assistants, nurse practitioners and midwives can provide abortion care if their license allows it and they have the training.

“The goal of the legislation was to get out of the way and let the medical professionals determine who is qualified to provide any particular kind of abortion care,” Krueger told the AP in an email Friday.

Existing rules are less clear about whether nurse practitioners and midwives can perform certain abortion procedures without the oversight of a physician. Pregnancies can be aborted by taking medication, through the use of suction, or through a procedure called dilation and evacuation that involves both suction and the use of medical tools.

Health care practitioners can face penalties for professional misconduct if they perform a service that’s beyond the scope of their profession.


Groups that support expanded access to abortion — including the New York Civil Liberties Union and the state’s midwifery association — are pushing New York to clearly lay out which non-doctors can provide certain kinds of abortions.

“Part of improving access is ensuring that the providers who are qualified to provide care can actually provide care,” said Katharine Bodde, senior policy counsel at the New York Civil Liberties Union.

Stephen Ferrara, executive director of the statewide nurse practitioner association, said many nurse practitioners in New York have long provided abortion medication. But he said the lack of clarity on whether nurse practitioners can now provide abortions involving suction means New York’s new law hasn’t changed anything when it comes to who can provide abortions.

“It certainly can potentially delay women accessing abortion services because nurse practitioners and midwives are not explicitly permitted to do so,” he said. He said it’s open to interpretation whether such suction procedures count as surgery.

As some states and courts strike down physician-only abortion laws, it can be up to professional licensing boards to fill in the details about who exactly can provide abortion care, according to Elisabeth Smith, an attorney for the Center for Reproduction Rights.

“What has happened is that state governments have removed physician-only requirements, and not replaced them,” Smith said. “Which creates an area in which it would be possible to provide, but there aren’t affirmative protections, so it’s difficult to trace if it’s happening.”

Abortion opponents, including the Archdiocese of New York, have said that New York’s new law will harm women and children by allowing state regulators to decide which non-doctors can perform abortions involving suction.


A recent wave of abortion restrictions across the nation has led abortion rights groups including Planned Parenthood and several medical associations to call on states to allow more trained health practitioners to perform abortions.

Those groups are now targeting “physicians-only” abortion laws passed decades ago by states wanting to prohibit unscrupulous abortion providers. Midwives in roughly a dozen states have filed lawsuits to strike down those laws.

Nationwide, 34 states allow only physicians to perform medication abortions, according to the Guttmacher Institute, which supports expanded access to abortion rights.

A handful of states allow nurse practitioners, physician assistants and midwives who are also nurses to perform both medication and suction abortions.

A 2013 University of California San Francisco study found that those three types of providers can safely perform abortions by medication and vacuum just as safely as doctors.

Still, abortion opponents argue that allowing people other than doctors to perform the procedures lowers the standard of care for women.

The American Medical Association, which fought to ban abortion in the 1880s and later pushed to restrict midwives and nurse practitioners, reaffirmed in 2010 its stance that only doctors should perform abortions. The group didn’t respond to requests for comment.

“Abortion is a medical procedure and should be performed only by a duly licensed physician and surgeon in conformance with standards of good medical practice and the medical practice act of his state,” reads the group’s policy.

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