BILL ANALYSIS                                                                                                                                                                                                    







                      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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