Alaska judge strikes down requirement that only licensed physicians provide abortions

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Abortion-rights advocates start a march along several downtown blocks to protest the U.S. Supreme Court ruling's June 24, 2022, ruling overturning Roe v. Wade. An Alaska judge has ruled that a longstanding provision in state law specifying that licensed physicians are the only medical professionals allowed to provide abortion services violates the Alaska constitution's equal-protection and privacy guarantees. (Photo by Yereth Rosen/Alaska Beacon)

An Alaska law prohibiting anyone other than a licensed physician from performing abortions violates the state constitution’s equal protection and privacy guarantees, a state Superior Court judge ruled on Wednesday.

There is “no medical reason” why abortions cannot be provided by advanced practice clinicians, or APCs, such as nurse practitioners and physician assistants, said the ruling issued by Superior Court Judge Josie Garton.

Limiting abortion services to state-licensed physicians violates the equal protection guarantee because other pregnancy-related services may be provided by advanced clinicians, Garton said in her ruling. And the restriction “imposes a substantial burden on patients’ fundamental privacy rights to make reproductive decisions and access abortion care,” she said.

Her ruling bars the state from preventing “otherwise qualified medical clinicians” from providing abortions.

The decision came in a lawsuit filed on Dec. 12, 2019, by Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky.

The lawsuit targeted the physician-only provision, which is identified as Alaska Statutes 18.16.010(a)(1). It dates to Alaska’s 1970 law that legalized abortion. It also targeted an Alaska Board of Nursing rule, based on the legal provision, that barred nurse practitioners from prescribing abortion medication.

In the decades since that law was passed, medical technology and services have changed, with more treatment provided by advanced practitioners. In its 2019 lawsuit, Planned Parenthood argued that the restriction of abortion services to physicians has become obsolete and results in unfair obstacles in a state facing a shortage of doctors and increasingly reliant on non-physicians such as nurse practitioners and physician assistants.

Garton, in her ruling, agreed with that argument.

“When APCs are barred from providing abortion, there are fewer available providers, fewer appointments, and potential for greater delay. Given the time-sensitivity of accessing abortion care and the way the service is delivered state-wide through three health centers many patients must travel significant distances to reach a health center,” she said in her ruling.

Shortly after the lawsuit was filed, the COVID-19 pandemic started, slowing legal procedures statewide. In 2021, Garton issued a preliminary injunction that barred enforcement of part of the restriction. Her injunction allowed clinical providers to provide medication abortions. After some delays, there was a nonjury trial last November in Anchorage.

The Alaska Department of Law is considering its next steps, said Chief Assistant Attorney General Chris Robinson. He cited a lack of information about how many patients were affected by the prohibition.

“Although we are still reviewing the decision, the court’s ruling contains several notable findings, including: ‘The number of patients who experience significant adverse impacts as a result of AS 18.16.010(a)(1) is low, likely very low, compared to the overall number of abortion patients who receive care at Planned Parenthood,’” he said by email. “It also found: ‘The evidence was not sufficient for the court to quantify, even roughly, the number of patients who, as a result of AS 18.16.010(a)(1), were delayed in accessing care, were unable to obtain a medication abortion or aspiration abortion due to gestational age as a result of the physician requirement, had to leave the state, or were unable to access care at all.’”

Given the findings, it is unclear how the prohibition “substantially burdens a fundamental right,” he said. “The statute was enacted to ensure medical safety, and those types of judgments are more appropriately made by the Legislative or Executive branches of government. The Department will continue to evaluate the court’s decision and take steps it deems appropriate at a future date.”

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