Opening Doors for New Abortion Providers: Overcoming Barriers and Misconceptions

1. Opening Doors for New Abortion Providers: Overcoming Barriers and Misconceptions NCAP/ACP Annual Meeting 2008 Linda Prine, M.D., Suzanne Stolz, & Stephanie Toti May 18, 2008

2. Abortion Provider Shortage • A significant shortage of abortion providers exists in the United States, and this has increasingly worsened in the past two decades. • Approximately 86% of the counties in the United States have no abortion facilities and approximately 32% of women aged 15 to 44 live in counties with no abortion provider. • This portion of the presentation addresses specific legal obstacles facing prospective abortion providers and some challenges that have been brought against those legal barriers.

3. Legal Barriers for Prospective Providers • Laws Affecting Abortion Providers, including: • Physician Only Laws • OB/GYN Only Requirements • Targeted Regulation of Abortion Providers (TRAP laws) • Effect on Physicians’ Office Based Practices • Hospital Credentialing Problems and Mandatory Affiliations or Admitting Privileges • Barriers to Obtaining Liability Insurance

4. Physician Only Laws • 43 states and the District of Columbia have laws prohibiting abortion except when performed by a physician licensed to practice medicine. • Only seven states do not have laws limiting the performance of abortions to physicians. • The Supreme Court upheld Montana’s physician only law against a constitutional challenge in Mazurek v. Armstrong, 520 U.S. 968 (1997).

5. Targeted Regulation of Abortion Providers (TRAP Laws) • “TRAP” laws target the medical practices of doctors who provide abortions and impose on them burdensome requirements which are different and more stringent than the requirements imposed on other medical practices. • TRAP laws mainly fall into four broad categories: • Health Facility Licensing Schemes • Hospitalization Requirements • Ambulatory Surgical Center Requirements • Hospital Credentialing and Mandatory Affiliations or Admitting Privileges

6. Targeted Regulation of Abortion Providers (TRAP Laws) • Health Facility Licensing Schemes: • Impose licensing requirements on abortion providers that are not imposed on providers of comparable services. • Examples of licensing requirements are: physical construction specifications, warrantless searches, personnel requirements, onerous administrative policies, and expensive licensing fees. • Hospitalization Requirements: • Mandate that abortions after a specified gestational age be performed in a hospital. • Many states have such laws on the books, but the vast majority have been declared unenforceable.

7. Effect of Ambulatory Surgical Center Requirements on Physicians’ Office Based Practices • Ambulatory Surgical Center Requirements mandate that abortion providers become licensed as ASCs and meet all the requirements for ASCs, including stringent physical construction standards that go far beyond the recommendations of recognized medical guidelines. • The physical construction standards for ASCs generally cannot be met by outpatient clinics or doctors who provide abortions at their private offices. • As a result, ASC requirements can effectively prevent doctors from providing, and women from being able to obtain, abortions in a private office setting despite the fact that performing abortions in a physician’s office falls within the applicable standards of care.

8. Hospital Credentialing Problems and Mandatory Affiliations or Admitting Privileges • TRAP laws often require that abortion providers have admitting privileges at a local hospital or have a written transfer agreement with a local hospital. • Recently, Dr. Martin Haskell, a family practice doctor who operates an abortion clinic in Dayton, Ohio, has been targeted by the Ohio Health Department for failure to comply with the State’s hospital transfer agreement requirement. • Dr. Haskell has now filed a lawsuit against the State, asserting that the written transfer agreement requirement is unconstitutional. The lawsuit is ongoing.

9. OB/GYN Only Requirements • While Physician Only laws are prevalent, a few attempts have been made to further restrict abortion access by requiring providers to be OB/GYNs. • Several legal challenges to OB/GYN only requirements have been successful. • Some states require that non-OB/GYN abortion providers consult with OB/GYNs about certain procedures. • For example, Oklahoma law requires that if an abortion provider is not a Board-certified or Board-eligible OB/GYN, then the facility where the provider works must have “protocols in place to assure consultation from a physician with these qualifications when required.”

10. Legal Challenges to OB/GYN Requirements • In 2006, the Louisiana State Board of Medical Examiners instituted disciplinary proceedings against an abortion provider and threatened to suspend her medical license for performing first-trimester abortions without having completed an OB/GYN residency. • The LSBME took the position that performing first-trimester abortions without completing an OB/GYN residency constituted “professional or medical incompetency,” “unprofessional conduct,” and failure to “satisfy the prevailing and usually accepted standards of medical practice.”

11. Legal Challenges to OB/GYN Requirements • In 2008, the Center for Reproductive Rights negotiated a settlement with the LSBME in Hope Medical Group for Women v. LeBlanc. • In the settlement, the LSBME agreed to drop all disciplinary charges against the abortion provider and also agreed to issue an advisory opinion detailing the minimum training requirements for first-trimester abortion providers. • The LSBME must issue the advisory opinion by July 2008.

12. Barriers to Obtaining Liability Coverage • Some insurers will not cover abortion providers at all. • Some insurers will not cover non-OB/GYN abortion providers. • Some insurers fail to recognize first-trimester abortion as within the scope of practice for family physicians. • In Louisiana, the Center for Reproductive Rights is challenging the refusal of a State-run insurance plan to cover abortion providers. It is difficult, however, to challenge the refusal of private insurers to cover abortion providers.

13. The NIA Group, LLC One Executive Drive Somerset, NJ 08873 Main Line: (732) 469-3000 Fax: (866) 795-0981 www.niagroup.com Thomas F. Hawkins Director, Med. Mal. Services (732) 941-3121 thawkins@niagroup.com Rockbridge Underwriting Agency 3700 Buffalo Speedway, Suite 300 Houston, TX 77098 Main Line: (713) 874-8800 Fax: (713) 874-8899 http://rockbridgeins.com Paula Dorman Senior Underwriter (713) 874-8806 pdorman@rockbridgeins.com Malpractice Insurance ResourcesThese insurers have demonstrated a willingness to work with abortion providers:

14. Laws That Affect Abortion Providers • Provider Qualification Requirements • Informed Consent Laws / Mandatory Waiting Periods • Parental Notification or Consent Laws • TRAP Laws—concerning facilities, personnel, hospital affiliation, inspections • Regulation of Mifepristone • Procedure Bans • Hyde Amendment / Public Funding Restrictions • Domestic Gag Rule • Private Insurance Restrictions • Conscientious Refusal Laws These laws and rules come from a variety of sources, including Congress, the U.S. Food and Drug Administration, State Legislatures, State Departments of Health, and Professional Licensing Boards (e.g., State Boards of Medical Examiners, State Boards of Nursing).

15. Legal Resources The Center for Reproductive Rights 120 Wall Street, 14th Floor New York, NY 10005 Main Line/Intake: (917) 637-3600 Fax: (917) 637-3666 www.reproductiverights.org