BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2011-2012 Regular Session B 1 3 3 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 (More) SB 1338 (Kehoe) Page 2 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 (More) SB 1338 (Kehoe) Page 3 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 (More) SB 1338 (Kehoe) Page 4 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 (More) SB 1338 (Kehoe) Page 5 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.) (More) SB 1338 (Kehoe) Page 6 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).) (More) SB 1338 (Kehoe) Page 7 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 (More) SB 1338 (Kehoe) Page 8 ("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 (More) SB 1338 (Kehoe) Page 9 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 (More) SB 1338 (Kehoe) Page 10 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. (More) SB 1338 (Kehoe) Page 11 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 (More) SB 1338 (Kehoe) Page 12 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 (More) SB 1338 (Kehoe) Page 13 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 (More) SB 1338 (Kehoe) Page 14 observation in a recovery area and a follow-up appointment approximately two weeks later. (More) 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 (More) SB 1338 (Kehoe) Page 16 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. ***************