UC Irvine Law Review

In 2020, women in South Dakota were deprived of an abortion provider in their state for seven months because the pandemic prevented out-of-state physicians from traveling. And as of late 2021, multiple states had only one abortion provider: if just one physician left, entire states or regions would be cut off from abortion access. The dearth of abortion care is not just caused by the pandemic or the escalating state-imposed restrictions on clinics that force them to close: it is the fact that laws in thirty-six states limiting the provision of abortion to physicians exclude an entire group of practitioners willing and able to safely administer early-term abortions. Including advanced practice clinicians (APCs)—who hold master’s or doctoral degrees—in the provision of first-trimester abortion will ameliorate the United States’ abortion provider shortage, especially for marginalized women.

Excluding APCs from abortion care is not just impractical: it is also unconstitutional. Since the Supreme Court made clear in Whole Woman’s Health v. Hellerstedt that medical evidence must support a state’s health-motivated abortion restriction, physician-only laws cannot pass constitutional muster. It is well established that there is no difference in health outcomes between APC and physician-administered first trimester abortions. But the Supreme Court overturning Roe. v. Wade signals an unwillingness to appropriately follow bedrock abortion precedent, meaning that federal and state legislatures must also repeal physician-only laws in the case that the Supreme Court continues to disregard long-standing precedent.