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Introduction

Virginia’s physician-only law was a narrow exemption from Virginia’s general criminal ban on abortion. The general criminal ban on abortion prohibits “any person” from “produc[ing] [an] abortion or miscarriage,” and violation of this prohibition is a Class 4 felony with an “authorized punishment” of “imprisonment of not less than two years nor more than 10 years, and . . . a fine of not more than $100,000.” The physician-only law allowed for first-trimester abortions to be provided by physicians licensed by the Virginia Board of Medicine. Non-physicians, regardless of medical training, were not exempted from the general criminal ban on abortion; therefore, they were prohibited from providing abortions. In May 2019, the Eastern District of Virginia considered the constitutionality of the physician-only law in Falls Church Medical Center, LLC v. Oliver. In Falls Church Medical Center, four elective abortion providers challenged the physician-only law on the basis that it “unjustifiably limits ‘the pool of abortion providers, even while advanced practice clinicians . . . safely and routinely provide abortion care, including medication and aspiration abortion, in other states throughout the country.’” While the court initially granted the Plaintiffs’ Motion for Partial Summary Judgment, finding that “there is no genuine issue of material fact as to whether the Physician-Only Law poses a substantial burden on a woman’s access to first trimester abortion care,” just over a week later, the court vacated this decision to “facilitate the development of a full factual record that will enable the Court to better address this question.” Ultimately, while the court found that the evidence is “compelling” that advanced practice clinicians (“APCs”) can safely provide abortions, the court determined, based off tangentially related precedent, that the physician-only law was only a mere “inconvenien[ce] for some individuals,” not an undue burden. This physician-only law was purported to serve the state interest of protecting maternal health; however, a substantial body of peer-reviewed research shows there is no medical benefit to a physician providing the abortion service instead of a trained APC, such as a nurse practitioner, physician assistant, or certified nurse-midwife. While the limitation provided no medical benefit, it created a substantial burden to access to first-trimester abortions. The requirement arbitrarily and artificially reduced the field of abortion providers, which reduced access by increasing the logistical and actual cost of abortions and increasing wait time. Therefore, the physician-only law was an undue burden on abortion access. Following the decision, the Virginia General Assembly amended the physician-only law to extend the exemption to “any person jointly licensed by the Boards of Medicine and Nursing as a nurse practitioner.” The amended law expands the field of abortion providers; however, it still artificially and arbitrarily limits providers to only physicians and nurse practitioners. Thus, while the law as amended is less burdensome, it is still more burdensome than necessary to protect the health of persons seeking first-trimester abortions. Alternatively, in order to ensure only medical professionals with adequate training and experience are providing abortion services, the Virginia General Assembly should appeal the general criminal ban on abortion and instead rely on the existing scope of practice laws, which prohibit APCs from providing medical care outside their training.

This Comment seeks to critique the Falls Church Medical Center’s holding that Virginia’s first-trimester physician-only law is not an undue burden on the right to abortion. Part I is an overview of the physician-only law, discussing the historical roots of the law, the impacts of the law on access to first-trimester abortion, related laws in other jurisdictions, and a survey of research conducted on the overall safety and effectiveness of APCs as abortion providers. Part II is an overview of the Falls Church Medical Center’s three decisions. Part III is an undue burden analysis of the physician-only law, which shows, in light of the lack of health benefits of the physician-only law and the substantial burden to access it creates, the law should be found unconstitutional. Part IV analyzes the physician-only law as amended to include licensed nurse practitioners. Part V looks to Virginia’s scope of practice laws for APCs as an assurance that only medically trained persons with education, knowledge, and experience to provide first-trimester abortions will provide these abortions.

 

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