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Office of the Attorney General

Attorney General

Bob Ferguson

AGO 2019 No. 1 - Feb 1 2019
Attorney General

PROFESSIONAL REGULATION—PHYSICIANS—NURSES—ABORTIONS—Authority Of Advanced Registered Nurse Practitioners And Physician Assistants To Perform Pre-Viability Aspiration Abortions

The Reproductive Privacy Act (Initiative 120) allows physician assistants and advanced registered nurse practitioners to perform pre-viability aspiration abortions, so long as that procedure is otherwise within their training, certification, and scope of practice without a supervising physician being physically present.

February 1, 2019

The Honorable Eileen Cody
State Representative, District 34
PO Box 40600
Olympia, WA   98504-0600

Cite As:
AGO 2019 No. 1

Dear Representative Cody:

            You have requested our opinion on the following four questions:

1.   Does RCW 18.79.050 supersede the physician-only restriction in the Reproductive Privacy Act insofar as that restriction would prevent qualified advanced registered nurse practitioners from performing first trimester aspiration abortions?

2.   The plain language of the Reproductive Privacy Act permits health care professionals to perform abortions under the supervision of a licensed physician, and there is nothing in the Reproductive Privacy Act that requires this supervision to be in person. Does this mean that there is nothing in the Reproductive Privacy Act to prevent physician assistants from performing first trimester aspiration abortions?

3.   Assuming that the Reproductive Privacy Act does not prohibit qualified physician assistants whose scope of practice includes first trimester aspiration abortions from providing this service, does the Reproductive Privacy Act require in-person supervision from a physician?

4.   Does the application of the physician-only restriction in the Reproductive Privacy Act to advanced practice clinicians in Washington State otherwise violate state or federal law?

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BRIEF ANSWERS

            In response to your first question, we conclude that a court likely would hold that the Reproductive Privacy Act allows advanced registered nurse practitioners to perform pre-viability aspiration abortions, so long as that procedure is otherwise within an ARNP’s training, certification, and scope of practice.

            In response to your second and third questions, the statutes and regulations governing physician assistants allow them to perform procedures without in-person supervision from a physician if certain conditions are met. We conclude that it is likely a court would hold that the Reproductive Privacy Act allows physician assistants to perform aspiration abortions without a physician physically present, so long as the conditions of supervision are met.

            In response to your fourth question, we conclude that the Reproductive Privacy Act allows advanced registered nurse practitioners and physician assistants to perform aspiration abortions, so long as doing so is otherwise consistent with their training, certification, and scope of practice. Physician assistants must be supervised as required by the statutes governing their practice.

            As explained in more detail below, our answers to these questions are informed by and consistent with a formal opinion in our office issued on related questions in 2004. AGO 2004 No. 1. As also explained in more detail below, we reach these conclusions, in part, because we recognize that doing so avoids serious constitutional concerns raised by a contrary reading of the statutes.

FACTUAL BACKGROUND

            The National Academies of Sciences, Engineering, and Medicine (National Academies) conducted a comprehensive review of the science on the safety and quality of abortion services in the United States in 2018. Nat’l Academies of Sciences, Eng’g, & Med., The Safety and Quality of Abortion Care in the United States (Abortion Care) 159 (2018). There are four legal abortion methods performed in the United States today—medication abortion, aspiration abortion, dilation and evacuation, and induction. Abortion Care at 5. Aspiration abortion is the most common method, though its use is likely to decline as medication abortion increases. Id. at 5, 29. Medication abortion is performed up to ten weeks’ gestation, while aspiration procedures may be performed up to sixteen weeks’ gestation. Id. at 8. Nationwide, more than ninety percent of abortions occur before thirteen weeks’ gestation. Id. at 26.

            The National Academies found that complications are rare for legal abortions of all types performed in the United States. Id. at 10. Patient mortality associated with any type of legal abortion is “exceedingly rare” in the United States and is less common than mortality associated with colonoscopies, plastic surgery, dental procedures, or adult tonsillectomies. Id. at 74-75.

            Aspiration abortion is “minimally invasive [and] commonly used,” and rarely results in complications. Id. at 59-62. The procedure typically takes less than ten minutes and involves

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cervical dilation followed by vacuum aspiration to empty the uterus. Id. at 59, 101. Aspiration is also often used in cases of early miscarriage, and in those circumstances, the procedure and required skills are the same. Id. at 59, 101. The National Academies found that medication and aspiration abortions are routinely performed safely in office and clinic settings. See id.

            The National Academies concluded that all abortion procedures “require competent providers skilled in patient preparation[,] clinical assessment[,] pain management[,] identification and management of expected side effects and serious complications[,] and contraceptive counseling and provision.” Abortion Care at 13, 118. “To provide aspiration abortions, the clinician should also be skilled in the technical aspects of an aspiration procedure.” Id. at 13, 118. A health care provider need not be a physician to achieve these competencies. Id. at 14; see also id. at 79, 103-05, 165.

            California and Oregon allow advanced practice clinicians (APCs), including advanced registered nurse practitioners (ARNPs) and physician assistants (PAs), to independently provide both medication and aspiration abortions. Id. at 117. Extensive research on the safety of abortion care in the United States has analyzed “the outcomes of abortions provided by thousands of individual clinicians,” including those who are not physicians. Id. at 14. The National Academies identified systematic reviews, randomized control trials, and a variety of cohort studies assessing the outcomes of abortions and comparing the outcomes of abortions provided by physicians with those provided by nurse practitioners, certified nurse midwives, and/or physician assistants. Id. at 102-05. After careful review of these studies, the National Academies concluded: “Both trained physicians (OB/GYNs, family medicine physicians, and other physicians), and APCs (physician assistants, certified nurse-midwives, and nurse practitioners) can provide medication and aspiration abortions safely and effectively” when the health care provider has been properly trained. Id. at 14; see also id. at 79, 103-05, 165.

            The National Academies concluded that limits on who can provide abortions “are more burdensome for women who reside far from providers and/or who have limited resources.” Id. at 13.[1] Laws that make abortion less available may therefore disproportionately burden poor women, especially in rural areas.

ANALYSIS

            We consider your four questions together because they largely interrelate. Your first question concerns ARNPs, while your second and third questions raise a similar inquiry involving PAs. Your fourth question includes both PAs and ARNPs.

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Washington’s Reproductive Privacy Act

            In 1991, Washington’s voters adopted the Reproductive Privacy Act (RPA). Laws of 1992, ch. 1 (codified as RCW 9.02) (Initiative 120). The people declared that “every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.” RCW 9.02.100. The measure provided that every person has a fundamental right to choose or refuse birth control, every woman has a fundamental right to choose or refuse to have an abortion, and the state cannot interfere with these rights except as specifically limited in RCW 9.02. RCW 9.02.100(1)-(3).

            “A physician may terminate and a health care provider may assist a physician in terminating a pregnancy” as permitted by the RPA. RCW 9.02.110. For purposes of the Act, a “health care provider” is a physician “or a person acting under the general direction of a physician.” RCW 9.02.170(5). Any person who performs an unauthorized abortion is guilty of a Class C felony, but the good faith judgment of a physician as to the viability of the fetus or the risk to the life or health of the woman, and the good faith judgment of a health care provider as to the duration of the pregnancy, are defenses to prosecution. RCW 9.02.120, .130.

            At the time that the RPA was adopted, the voters likely understood the law to permit an abortion only if it was performed by a physician. The official ballot title read: “Shall state abortion laws be revised, including declaring a woman’s right to choose physician performed abortion prior to fetal viability?” 1991 Voters Pamphlet 14. The explanation of preexisting law stated that an abortion could only be performed by a physician, and the Voters Pamphlet did not indicate that the initiative would change that restriction. 1991 Voters Pamphlet 14-15. The “Statement For” in support of Initiative 120 emphasized that the new law would “[a]llow[] only physicians to perform abortions[.]” 1991 Voters Pamphlet 14. Thus, at the time Initiative 120 was adopted, only physicians were authorized to perform abortions, though other health care professionals could assist. RCW 9.02.110.

            The RPA prohibits the state from interfering with the right to terminate a pregnancy “prior to viability of the fetus, or to protect [the woman’s] life or health.” RCW 9.02.110. Under the Act, any state regulation relating to abortion is valid only if the regulation is medically necessary to protect the life or health of the woman, it is consistent with established medical practice, and it is the least restrictive alternative available. RCW 9.02.140. The state “shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.” RCW 9.02.100(4).

Physician Assistant and Advanced Registered Nurse Practitioner Authority Under RCW Title 18

            Since the Reproductive Privacy Act was adopted, Washington has recognized new categories of health professionals and has expanded their scope of practice in ways that overlap with the “practice of medicine” that was once reserved to licensed physicians. For example, the legislature has granted other health care professionals, including physician assistants and advanced registered nurse practitioners, the authority to perform certain minor surgical procedures within

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their certification and scope of practice. Physician assistants are regulated under RCW 18.71A and RCW 18.57A, while advanced registered nurse practitioners are regulated under RCW 18.79.

            Physician Assistants: A PA is a person who is licensed by the medical quality assurance commission to practice medicine to a limited extent under the supervision of a physician and who is “academically and clinically prepared to . . . perform diagnostic, therapeutic, preventative, and health maintenance services.” RCW 18.71A.010(1); see also RCW 18.57A.030. Surgery, including minor surgery, is included in the definition of the “practice of medicine.” RCW 18.71.011. The medical quality assurance commission must adopt rules governing the extent to which physician assistants may practice after successful completion of their training. RCW 18.71A 020(2)(a)(ii).

            The medical commission’s regulations “shall provide” that “each physician assistant shall practice medicine only under the supervision and control of a physician licensed in this state, but such supervision and control need not be construed to necessarily require the personal presence of the supervising physician or physicians at the place where the services are rendered.” RCW 18.71A.020(2)(b)(ii). The medical commission may grant authority for a PA to practice at a remote site under certain circumstances, including if there is a demonstrated need and certain safeguards are in place. RCW 18.71A.035; see also WAC 246-918-120.

            PAs are permitted by law to perform procedures, including surgical procedures, “as long as the practice is not beyond the supervising physician’s own scope of expertise and practice.” RCW 18.71A.030(2). The physician assistant statute did not expressly authorize PAs to perform surgical procedures until 2016. See Laws of 2016, ch. 155, § 23(2). “The supervising physician and the physician assistant shall determine which procedures may be performed and the degree of supervision under which the procedure is performed.” RCW 18.71A.030(2); see also Abortion Care at 114.

            The statute contains a specific list of health care services that PAs are not allowed to perform, but neither minor surgery nor pre-viability abortion appears on the list of prohibited services. RCW 18.71A.060. The medical commission has adopted regulations governing PA practice, but like the physician assistant statutes, the regulations contain no express prohibition on PAs performing aspiration abortions. See WAC 246-918.[2]

            Advanced Registered Nurse Practitioners: ARNPs are registered nurses with advanced education and training and are authorized by law to perform certain procedures independently. The legislature first authorized advanced registered nursing practice in 1994, three years after the people adopted the Reproductive Privacy Act. Laws of 1994, 1st Spec. Sess., ch. 9, § 405. The

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legislature has defined “advanced registered nursing practice” to mean “the performance of the acts of a registered nurse and the performance of an expanded role in providing health care services as recognized by the medical and nursing professions, the scope of which is defined by rule by the [Washington nursing care quality assurance] commission.” RCW 18.79.050. Washington recognizes four designations of ARNP: Nurse Practitioner (NP); Certified Nurse Midwives (CNM); Certified Registered Nurse Anesthetist (CRNA); and Clinical Nurse Specialist (CNS). WAC 246-840-302(1)(a)-(d). CNMs and some NPs specialize in women’s health care. Nat’l Council of State Bds. of Nursing, 2012 Model Act / 2012 Model Rules Comparison Chart, https://www.ncsbn.org/2012_APRN_Model_and_Rules.pdf; Nat’l Abortion Fed’n, Providing Abortion Care: A Professional Toolkit For Nurse-Midwives, Nurse Practitioners, And Physician Assistants 17-18, http://apctoolkit.org/wp-content/themes/apctoolkit/PDFs/APCToolkit_COMPL....

            By statute, ARNPs are expressly permitted to prescribe legend drugs and certain controlled substances. RCW 18.79.050, .250. ARNPs may not perform major surgery, but they may perform “such minor surgery as the commission may have specifically authorized by rule adopted in accordance with chapter 34.05 RCW.” RCW 18.79.240(1)(o). ARNPs may also “[p]erform specialized and advanced levels of nursing as recognized jointly by the medical and nursing professions, as defined by the commission[.]” RCW 18.79.250(1). This includes administering treatments “whether or not the severing or penetrating of tissues is involved and whether or not a degree of independent judgment” is required, so long as the acts are within the nurse’s scope of practice. RCW 18.79.260(2).

            The nursing care quality assurance commission has adopted regulations further defining the scope of practice of ARNPs. WAC 246-840-300 to -451. An ARNP may “[p]erform procedures or provide care services that are within the ARNP’s scope of practice according to the commission approved certifying body as defined in WAC 246-840-302.” WAC 246-840-300. In turn, WAC 246-840-302 identifies several certifying bodies, including for example, the American Academy of Nurse Practitioners, the American Nurses Credentialing Center, and the American Midwifery Certification Board. While training and certification in abortion care are difficult for ARNPs to access, training and certification are available and ARNPs with proper training perform aspiration abortions in California, for example. Abortion Care at 112-13; Cal. Bus. & Prof. Code § 2253(2).

            Thus, both PAs and ARNPs may perform minor surgeries that are within their certification so long as all of the conditions established in their authorizing statutes are met. You have asked whether the language in RCW 9.02.110 that states that “[a] physician may terminate and a healthcare provider may assist a physician in terminating a pregnancy” prohibits PAs and ARNPs from performing aspiration abortions. In other words, did the legislature intend the legislation expanding the professional practice of PAs and authorizing the practice of ARNPs to alter the physician-only restriction or make it inapplicable to these practitioners, thereby allowing them to perform aspiration abortions?

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Intersection of the Reproductive Privacy Act and the Laws Governing the Practice of Physician Assistants and Advanced Registered Nurse Practitioners

             The Attorney General’s Office issued an opinion regarding a similar question in 2004. AGO 2004 No. 1. Two prosecutors asked whether an ARNP may, when consistent with his or her professional license, lawfully furnish or prescribe a drug to a woman for the purpose of inducing an abortion where the drug may be lawfully prescribed and the woman seeks to terminate her pregnancy before the fetus is viable or for the purpose of preserving the woman’s life or health. AGO 2004 No. 1, at 1. We concluded that the Reproductive Privacy Act did not prohibit a health care provider, acting within the terms of his or her professional license, to perform acts or procedures that will have the effect of terminating a woman’s pregnancy where the purpose of the act or procedure is to exercise the woman’s constitutional or statutory right to terminate a pregnancy. AGO 2004 No. 1, at 1-2. We come to the same conclusion again today.

            In our 2004 opinion, we explained that the intersection between the RPA and the statutes governing the scope of practice for non-physician providers is a matter of statutory interpretation. AGO 2004 No. 1, at 3. Where possible, statutes should be read in harmony, rather than in conflict with each other. Lenander v. Dep’t of Ret. Sys., 186 Wn.2d 393, 412, 377 P.3d 199 (2016). They should be reconciled to give effect to each statute. Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000). While implied amendments are generally disfavored, the Supreme Court has recognized that “nearly every legislative act of a general nature changes or modifies some existing statute.” Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 643, 71 P.3d 644 (2003) (internal quotations omitted); see also, e.g., Misterek v. Washington Mineral Prods., Inc., 85 Wn.2d 166, 168, 531 P.2d 805 (1975) (implied amendment disfavored); State v. Manussier, 129 Wn.2d 652, 664-65, 921 P.2d 473 (1996) (upholding a statute that impliedly modified other criminal sentencing laws). Courts will, where necessary, give preference to the more specific and more recently enacted statute. Gorman v. Garlock, Inc., 155 Wn.2d 198, 210, 118 P.3d 311 (2005). Most importantly, when determining how to reconcile potentially conflicting statutes, Washington courts seek to carry out the intent of the voters and the legislature. See Lenander, 186 Wn.2d at 412. “A fundamental rule of statutory construction is that the court must interpret legislation consistently with its stated goals.” Tunstall, 141 Wn.2d at 211.

            There is more than one way to resolve the impact of the statutes relating to PAs and ARNPs on the Act. Arguably, one might reconcile the statutes by concluding that these practitioners can perform most minor surgeries and procedures, but they cannot perform aspiration abortions. This conclusion would be consistent with the assumption that the legislature knows of all existing statutes when it enacts new legislation. ATU Legislative Council v. State, 145 Wn.2d 544, 552, 40 P.3d 656 (2002). Alternatively, the statutes could be read in harmony to reflect legislative intent to allow any health care practitioner who the legislature and the regulating commissions have deemed able to perform minor surgical procedures safely within their certifications, to be authorized to perform aspiration abortions. This latter option would give preference to later-enacted statutes, interpreting them as limited exceptions to the Act’s general prohibition on non-physicians performing abortions. AGO 2004 No. 1, at 5 (“[A] later enactment may be deemed to be an exception to a general rule enunciated in the former statute.”); see also 3 Norman J. Singer,

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Sutherland on Statutes and Statutory Construction § 51.02, at 194 (6th ed. 2001). We think a Washington court would more likely adopt the latter construction.

            Interpreting the PA and ARNP authorizing statutes as limited exceptions to the physician-only provision would also be consistent with the Act’s prohibitions against interfering with a woman’s right to choose a pre-viability abortion and against singling out abortion for disparate treatment. RCW 9.02.100(4) (providing that the state “shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information”), .140. As we reasoned in our 2004 opinion, interpreting the RPA instead to permanently prohibit non-physician health care providers from performing first trimester abortions would be inconsistent with the rest of the Act, including the people’s stated purpose. When interpreting statutes, courts must consider “all that the Legislature has said in the statute and related statutes [that] disclose legislative intent about the provision in question.” Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 11, 43 P.3d 4 (2002). The RPA firmly established that the “state may not deny or interfere with a woman’s right to choose to have an abortion prior to viability of the fetus, or to protect her life or health.” RCW 9.02.110. The people declared it to be the public policy of the state that “[e]very woman has the fundamental right to choose or refuse to have an abortion[.]” RCW 9.02.100(2). Finally, when regulating abortions, the state must choose the available alternative that is the least restrictive on a woman’s right to have an abortion. RCW 9.02.140(3).

            Reading the Act in its entirety, we conclude that the voters intended to protect the health of women by insisting that abortions be performed only by qualified health care providers licensed to provide them (who happened to be only physicians at the time), not to unnecessarily limit women’s access to pre-viability abortions. As we explained in 2004, while one purpose of Initiative 120 was undoubtedly to ensure that only properly trained and licensed professionals were permitted to perform abortion procedures, a court would likely conclude that in establishing and expanding the professional practice of PAs and ARNPs, the legislature intended to create exceptions to the physician-only rule. AGO 2004 No. 1, at 5. Reading the statutes to limit access to safe, pre-viability abortions would undermine the express purpose of the RPA, interfering with the clear intent of the voters. See American Legion Post 149 v. Dep’t of Health, 164 Wn.2d 570, 589, 192 P.3d 306 (2008) (relying on the obvious purpose of an initiative when reconciling it with another statute). See generally AGO 2004 No. 1.

            In addition, your question involves a potential for criminal liability. As we noted in our 2004 opinion, to the extent that there is still ambiguity after these principles of statutory construction have been applied, courts will apply the rule of lenity to interpret the statutory scheme in favor of a criminal defendant. AGO 2004 No. 1, at 6 (citing State v. Lively, 130 Wn.2d 1, 921 P.2d 1035 (1996)); see, e.g., City of Seattle v. Winebrenner, 167 Wn.2d 451, 462, 219 P.3d 686 (2009). In light of this well-settled rule, a court would not be likely to conclude that a PA or ARNP who performed an aspiration abortion had committed a crime, even if the court found the statutory scheme ambiguous.

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            Finally, when evaluating competing statutory interpretations, courts will adopt the reading that avoids constitutional concerns. See State ex rel. Dawes v. State Highway Comm’n, 63 Wn.2d 34, 38, 385 P.2d 376 (1963) (“If a statute is subject to two interpretations, one rendering it constitutional and the other unconstitutional, the legislature will be presumed to have intended a meaning consistent with the constitutionality of its enactment.”).

            The United States Supreme Court has held that restricting the performance of abortion to physicians does not per se violate the United States Constitution. See Mazurek v. Armstrong, 520 U.S. 968, 974-75, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997). More recently, however, the Court has reemphasized that under the Fourteenth Amendment, a state restriction on abortion access must confer “medical benefits sufficient to justify the burdens upon access that [the regulation] imposes.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300, 195 L. Ed. 2d 665 (2016). The Whole Woman’s Health Court looked to other regulations governing arguably more dangerous procedures to determine whether a regulation requiring abortions to occur only in surgical centers was reasonably related to preserving a woman’s health. Id. at 2315 (comparing midwife-attended childbirth, colonoscopies, and treatment for incomplete miscarriages, all of which were not as strictly regulated). The Court explained that a regulation that “places a substantial obstacle in the path of women seeking a previability abortion” or that places an “undue burden on abortion access” violates the Fourteenth Amendment. Id. at 2300. Where evidence shows a pre-viability abortion procedure is safe absent the regulation in question, and the regulation does not appreciably lower risks for patients or result in more frequent positive outcomes, then there is no significant problem that the restriction can legitimately cure. See id. at 2311, 2315. The Court reasoned that forcing women to travel long distances to obtain abortion care in centralized facilities can be “harmful to, not supportive of, women’s health.” Id. at 2318.

            The United States Supreme Court’s Fourteenth Amendment undue burden analysis is necessarily evidence-specific and the National Academies’ review of peer-reviewed studies concluded that prohibiting PAs and ARNPs from performing aspiration abortions is not necessary to protect the safety of women choosing abortion. Abortion Care at 14; see also id. at 79, 103-05, 165. A court could conclude that reading the RPA to continue to impose a physician-only restriction would achieve no additional health benefit for women, while unnecessarily restricting access to abortions in rural areas in Washington. At the very least, we think it is unclear whether a physician-only requirement would survive a Fourteenth Amendment challenge in light of Whole Woman’s Health and the National Academies’ recent conclusions that non-physicians can safely and effectively provide medication and aspiration abortions.

            Even if there were no federal constitutional concerns, we believe there is a significant risk that a Washington court would find that interpreting the relevant statutes to maintain a physician-only restriction on aspiration abortion care violates the Washington Constitution’s independent privacy protection. State v. Koome, 84 Wn.2d 901, 904, 530 P.2d 260 (1975) (recognizing a woman’s fundamental right of privacy also arises from article I, section 3 of the Washington Constitution and striking down a parental consent requirement imposed as a precondition to abortion care). A Washington court could well invoke reasoning similar to the Montana Supreme

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Court’s analysis striking down Montana’s physician-only requirement for abortion care on state constitutional grounds. Armstrong v. State, 296 Mont. 361, 989 P.2d 364 (1999).

            In Armstrong, the Montana Supreme Court concluded that the Montana Constitution protects “a woman’s right of procreative autonomy—i.e., here, the right to seek and to obtain a specific lawful medical procedure, a pre-viability abortion, from a health care provider of her choice.” Id. at 367. The Montana Constitution affords significantly broader protection than does the federal constitution. Id. at 375. Legislation infringing on the fundamental right of privacy established in the state constitution must be narrowly tailored to effectuate only an identified compelling state interest justifying the restriction. Id. at 374. If the medical community has concluded that a health care provider is competent to safely and effectively provide a medical procedure, then the state has no interest, certainly no compelling interest, in interfering with a woman’s fundamental privacy right to obtain the medical procedure from the licensed and qualified provider of her choice. See id. at 385. If faced with the issue, we believe Washington courts might well apply a similar analysis and conclude that the state has no compelling interest in criminalizing a medical procedure that research shows is safe and effective when performed by PAs and ARNPs.

            Further, Washington has adopted the Equal Rights Amendment, Const. art. XXXI, § 1, which provides: “Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.” The ERA provides greater protection against discrimination based on sex than the equal protection clause of the United States Constitution. See Sw. Washington Chapter, Nat’l Elec. Contractors Ass’n v. Pierce Cty., 100 Wn.2d 109, 127, 667 P.2d 1092 (1983) (“The ERA absolutely prohibits discrimination on the basis of sex and is not subject to even the narrow exceptions permitted under traditional ‘strict scrutiny.’”). Because only women can become pregnant or need abortion care, singling out abortion for stricter regulation than is imposed for other, more dangerous procedures, like colonoscopies, likely cannot survive the level of scrutiny that the ERA requires. Other state courts have adopted this approach, concluding that their Equal Rights Amendments protect reproductive rights where a law singles out for less-favorable treatment a gender-linked condition that is unique to women or where the state fails to comparably restrict men from accessing procedures unique to male anatomy. See New Mexico Right to Choose/NARAL v. Johnson, 126 N.M. 788, 975 P.2d 841, 855-56 (1998); Doe v. Maher, 40 Conn. Super. Ct. 394, 515 A.2d 134 (1986).

            Avoiding these potential constitutional problems is another reason to reconcile the Act and the PA and ARNP statutes to permit qualified PAs and ARNPs to provide aspiration abortion care.

            In sum, we conclude, consistent with our prior opinion, that the most sensible, comprehensive reading of the PA, ARNP, and reproductive privacy statutes is that the RPA does not prohibit these practitioners from performing aspiration abortions, so long as doing so is consistent with commission regulations, as well as their training and certification. For PAs, abortion care must be covered under the physician assistant’s agreement with their supervising physician, and supervision must comply with ordinary statutory and regulatory restrictions.

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            Finally, we would note that because your question involves an issue of criminal liability, and because there is some ambiguity in the statutory scheme, a statutory clarification that removes any doubt about the authority of PAs and ARNPs would be ideal, despite the analysis provided above.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON<
Attorney General

JEFFREY T. EVEN
Deputy Solicitor General

wros


[1] Nationwide, the number of facilities providing abortions is declining, and an estimated seventeen percent of women travel more than fifty miles to obtain an abortion. Abortion Care at 6, 13. This trend appears not to hold in Washington, where the number of abortion-providing facilities increased from forty-five to fifty from 2011 to 2014. Guttmacher Inst., State Facts About Abortion: Washington 2 (May 2018), https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-washington.

[2] WAC 246-918-250 and -260 specifically govern physician assistant-surgical assistants who are not eligible to take the NCCPA certifying exam. These regulations, by their express terms, do not limit the practice of physician assistants who have taken the certifying exam.