BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1338 (Kehoe) 8
As Amended April 9, 2012
Hearing date: April 24, 2012
Business and Professions Code
MK:mc
ABORTION
HISTORY
Source:ACCESS Women's Health Justice; American Civil Liberties
Union of California;
NARAL Pro-Choice California; Planned Parenthood
Affiliates of California
Prior Legislation: SB 1009 (Benoit) - failed Assembly Health,
2007
SB 1487 (Hollingsworth) - failed Senate Health
Committee, 2006
AB 2512 (Sharon Runner) - filed Assembly Health
Committee, 2006
SB 147 (Runner) - not heard Senate Health
Committee, 2005
AB 669 (La Suer) - failed Senate BP&ED, 2006
AB 1427 (Mountjoy) - failed Assembly Public Safety
Committee, 2005
AJR 3 (Cohn) - Chapter 83, 2005
AJR 2 (Jackson) - Chapter 63, 2003
SB 1050 (Figueroa) - Chapter 1085, Stats. 2002
SB 1301 (Kuehl) - Chapter 385, Stats. 2002
SB 370 (Burton) - Chapter 692, Stats. 2000
Support: ACT for Women and Girls; American Nurses Association
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of California; California Academy of Family Physicians
(if amended); 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; 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 Mar Monte; Planned Parenthood of
Pasadena and San Gabriel Valley, Inc.; Planned
Parenthood Shasta Pacific Action Fund; Santa Cruz
Mujeres Women's Health Center; Service Employees
International Union; Six Rivers Planned Parenthood;
Women's Community Clinic; a number of individuals
Opposition:California Nurses Association; Life Legal Defense
Foundation; California Catholic Conference; Right to
Life Committee; an individual
KEY ISSUE
SHOULD THE LAW CLEARLY AUTHORIZE LICENSED OR CERTIFIED NURSE
PRACTITIONERS, NURSE MIDWIFES OR PHYSICIAN ASSISTANTS TO PERFORM AN
ABORTION BY MEDICATION OR ASPIRATION, THUS ELIMINATING THEIR
POTENTIAL CRIMINAL LIABILIY?
PURPOSE
The purpose of this bill is to clearly provide that nurse
practitioners, nurse midwifes or physician assistants will not
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be subject to criminal liability for performing an abortion by
medication or aspiration.
Existing law , the Reproductive Privacy Act (Act), makes the
legislative findings that every individual possesses a
fundamental right of privacy with respect to personal
reproductive decisions. Accordingly, it specifies that it is
the public policy of the State of California that:
Every individual has the fundamental right to choose or refuse
birth control.
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.
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
Act. (Health and Safety Code § 123462.)
Existing law provides for the following definitions:
"Abortion" means any medical treatment intended to induce the
termination of a pregnancy except for the purpose of producing
a live birth.
"Pregnancy" means the human reproductive process, beginning
with the implantation of an embryo.
"State" means the State of California, and every county, city,
town and municipal corporation, and quasi-municipal
corporation in the state.
"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.
(Health and Safety Code § 123464.)
Existing law 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
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protect the life or health of the woman. (Health and Safety
Code § 123466.)
Existing law provides that any person who practices or attempts
to practice, or who advertises or holds himself or herself out
as practicing, any system or mode of treating the sick or
afflicted in this state, or who diagnoses, treats, operates for,
or prescribes for any ailment, blemish, deformity, disease,
disfigurement, disorder, injury, or other physical or mental
condition of any person, without having at the time of so doing
a valid, unrevoked, or unsuspended certificate as provided in
this chapter or without being authorized to perform the act
pursuant to a certificate obtained in accordance with some other
provision of law is guilty of a wobbler. (Business and
Professions Code § 2052.)
Existing law specifies that the performance of an abortion is
unauthorized if either of the following is true:
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.
The abortion is performed on a viable fetus, and both of the
following are established:
a) In the good faith medical judgment of the physician, the
fetus was viable.
b) In the good faith medical judgment of the physician,
continuation of the pregnancy posed no risk to life or
health of the pregnant woman. (Health and Safety Code §
123468.)
Existing law 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.
(Business and Professions Code § 2253 (a).)
Existing law provides that "nonsurgical abortion" includes the
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termination of pregnancy through the use of pharmacological
agents. (Business and Professions Code § 2253 (c).)
Existing law 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.
Existing law 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. (Business and Professions Code § 2735
(b) (2).)
Existing law provides that the practice of nursing may be
performed under "standardized procedures," as defined, for
specified functions, treatments and procedures. (Business and
Professions Code § 2725.)
Existing law 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 surgeon supervision; and is
in accordance with standardized procedures or protocols as
specified. (Business and Professions Code § 2746.51.)
Existing law 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. (Business and Professions Code §
2836.1.)
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Existing law 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. (Business and
Professions Code § 2836.2.)
Existing law 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.
Existing law 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. (Business and Professions Code §
3502.)
Existing law 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. (Business and Professions
Code § 3502.1.)
Existing law makes it wobbler, 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.
(Business and Professions Code § 2253 (b) (1).)
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This bill provides instead that a person is subject to the
criminal penalties if he or she performs an abortion, and at the
time of so doing does not have a valid, unrevoked, an
unsuspended license to practice as a physician and surgeon or if
he or she assists in performing an abortion and does not have a
valid, unrevoked and unsuspended license or certificate obtained
in accordance with law that authorizes him or her to perform the
functions necessary to assist in performing an abortion.
Existing law makes it a wobbler 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. (Business and Professions Code § 2253 (b)
(2).)
This bill provides instead that a person is subject to the
criminal penalties if he or she performs an abortion by
medication or aspiration techniques, and at the time of so
doing, does not have a valid, unrevoked and unsuspended license
or certificate to practice as a nurse practitioner, a certified
nurse-midwife, or a physician assistant that authorizes him or
her to perform the functions necessary for an abortion by
medication or aspiration.
This bill sets forth training requirements for nurse
practitioners, certified nurse-midwifes or physician assistants
to perform an abortion by aspiration techniques.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
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three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
The author has been informed that this bill does not aggravate
the prison overcrowding crisis described above under ROCA.
COMMENTS
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1. Need for This Bill
According to the author:
Existing law, Business and Professions code section
2253, authorizes NPs, CNMs and PAs to perform
"nonsurgical" abortions including the use of
pharmacological agents (i.e., medication abortions).
SB 1338 is necessary due to the lack of clarity
contained in statute. Existing law
(B & P 2253) specifies that medication abortion may
legally be performed by NPs, CNMs and PAs. There is a
lack of consensus regarding other "nonsurgical"
procedures that would fall within the law. Due to this
lack of clarity, regulatory boards have limited the
authorization to perform procedures to medication. SB
1338 is necessary to clarify that NPs, CNMs and PAs are
also authorized to perform aspiration procedures. This
is not a scope of practice debate because NPs, CNMs and
PAs already possess professional skills and
occupational scopes necessary to perform aspirations;
however, they lack the authority to perform aspirations
due to the lack of clarity under the law, which SB 1338
would rectify.
Through HWPP #171, NPs, CNMs and PAs received temporary
authority to perform aspiration abortions under the
UCSF research study that shows that these three types
of 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 will not be
able to perform aspirations in the safe manner
indicative of HWPP #171.
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Legislative history provides precedence and public
value for approving legislation based on favorable
findings from strong and reliable study data associated
with an ongoing HWPP, such as HWPP #171. One bill that
intended to enact legislation with respect to HWPPs
that had not been completed is:
Assembly Bill No. 560 (Perata) was introduced February
25, 1997, enrolled September 12, 1997, and chaptered on
October 7, 1997.
AB 560 was associated with Health Manpower Pilot
Project #155. This pilot project dealt with Dentistry:
Registered Dental Hygienist in Alternative Practice.
HMPP #155 was approved by OSHPD August 3, 1990 and
closed January 1, 1998.
2. 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
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for the passage of this Act was the concern that the Unites
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.
3. Aspiration Technique and Procedure
a. 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 used to refer
to distinct procedures.
b. 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 Drs. 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 Karnen in the United States refined the
technique 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
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risks of puncturing the uterus.
c. 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.
d. 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
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observation in a recovery area and a follow-up appointment
approximately two weeks later.
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4. Health Workforce Pilot Project Study #171
In an effort to expand the pool of educated, 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 Health Workforce Pilot Project
(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 for a total of
approximately 16,000 procedures. The data show 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.)
5. Public Safety Portion of the Bill
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This bill is double referred to Senate Business, Professions and
Economic Development Committee. That Committee will address the
policy issues dealing with scope of practice. The jurisdiction
of this Committee is solely the criminal liability in the
section amended by this bill.
Existing law makes providing a surgical or nonsurgical abortion
without the proper license or certification a wobbler. There
appears to be a disagreement among advocates whether or not an
abortion by medication or aspiration is considered surgical or
nonsurgical and thus whether or not specified nurses can perform
them. This bill clearly specifies that a certified nurse
practitioner, a licensed or certified, nurse-midwife or
physician assistant may perform an abortion by medical or
aspiration techniques. If this is current law, as some
advocates argue, this bill would clarify and make no change in
the current criminal penalties. If this is not current law, as
the majority of the advocates are asserting, this bill would
reduce the scope of the law by providing that the specified
nurse practitioners, certified nurse-midwifes or physician
assistants will no longer be subject to the current criminal
penalties for performing abortions by medication or aspiration.
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