Providers

Who May Provide and Who May Refuse to Provide Abortions

A.   Who May Provide Abortions

1.   Aspiration Abortion:  Physicians and other clinicians who hold “a valid, unrevoked, and unsuspended license or certificate … that authorizes him or her to perform the functions necessary for an abortion by medication or aspiration techniques.” (i.e. nurse practitioners, certified nurse-midwives, and physician assistants) are lawfully authorized to perform “nonsurgical abortions” in California.[1]

2.   Surgical Abortion:  A “surgical abortion” may only be performed by a person with “a valid, unrevoked, and unsuspended license to practice as a physician and surgeon”[2] or by a clinician “if he or she performs an abortion by . . . aspiration techniques in the first trimester of pregnancy” and “has a valid unrevoked, and unsuspended license or certificate obtained in accordance with the Nursing Practice Act . . . or the Physician Assistant Practice Act.” [3] A certified nurse practitioner or certified nurse-midwife must complete training recognized by the Board of Registered Nursing. [4] Additionally, nurse practitioners and nurse-midwives must adhere to standardized developed in compliance with §2725(c), and he or she must achieve clinical competency. [5] A physician assistant must “complete training either through training programs approved by the board . . . or by training to perform medical services which augment his or her current areas of competency[.]” [6] Additionally, to be authorized to perform an abortion, physician assistants must comply with protocols developed in compliance with §3502. [7]

B.   Institutional Refusals

1.   Religiously Affiliated Hospitals:  A nonprofit hospital or other facility or clinic that is organized or operated by a religious corporation is not required to perform or permit the performance of an abortion on its premises.  The failure or refusal of any such corporation, unincorporated association, or individual to perform or permit the performance of a medical procedure shall not be the basis for disciplinary action.[8]  This does not apply in the case of a medical emergency situation and spontaneous abortion.[9]

Any such facility or clinic that does not permit the performance of abortions on its premises shall post notice of that proscription in an area of the facility that is open to patients and prospective admittees.[10]

2.   Protection for Employees Performing Abortions in Outside Hospital, Facility, or Clinic

A hospital, facility or clinic that does not permit the performance of abortions may not subject an employee or person with staff privileges to any penalty or discipline based on the person’s participation in the performance of an abortion in another hospital, facility or clinic.[11]

3.    Religiously-Affiliated Medicaid Managed Care Organizations:  A Medicaid (Medi-Cal in California) Managed Care Organization (MCO) may refuse to reimburse its providers for or provide enrollee coverage of counseling or referral to abortion, or any other service to which it has a moral or religious objection. [12]

 

C.   Individual’s Right to Decline to Provide or Participate in Abortion Care

1.   Current Employees:  No employer or other person shall require health care providers or staff to directly participate in the performance of an abortion, if the employee or other person has filed a written statement with the employer or the hospital, facility, or clinic indicating a moral, ethical, or religious basis for refusal to participate in the abortion.  An employer may not discipline an employee based on her refusal to participate in an abortion.[13]

2.   Hiring:  No employer shall refuse to employ any person because of the person’s refusal to participate in an abortion, unless the person would be assigned in the normal course of business to work in those parts of the hospital, facility, or clinic where abortion patients are cared for. No provision of this article prohibits any hospital, facility, or clinic that provides abortions from inquiring whether an employee or prospective employee would refuse to participate in an abortion before hiring or assigning that person to that part of a hospital, facility, or clinic where abortion patients are cared for.[14]

3.    Residency Education:  All residency programs in obstetrics and gynecology shall be geared toward the development of competence in the provision of ambulatory primary health care services for women, including, but not limited to, training in abortion.[15]

4.   Conscience-Based Objections

a.    Students:  No medical school or other facility which trains physicians, nurses, or other medical personnel shall refuse admission to or penalize a person because they are unwilling to participate in the performance of an abortion based on a moral, ethical or religious reason.[16]

b.   Physicians:  No hospital, facility, or clinic shall refuse staff privileges to a physician because they are unwilling to participate in the performance of an abortion for moral, ethical, or religious reasons.[17]

5.   Federal Refusal Laws:  In addition to California provisions, Congress has enacted three federal refusal laws, commonly known as the Church Amendments, the Coats Amendment, and the Weldon Amendment.[18]  Under certain circumstances these laws give individuals and institutions the ability to refuse to provide, and to prohibit requiring the performance of, or participation in, abortion and sterilization services.[19]

a.    The Church Amendments:  The Church Amendments clarify that receipt of certain federal funds does not require:

(i)  any individual to perform or assist in the performance of any sterilization procedure or abortion if it would be contrary to his religious beliefs or moral convictions; or

(ii)  any entity to make its facilities available for the performance of any sterilization procedure or abortion if it is prohibited by the entity on the basis of religious beliefs or moral convictions.[20]

b.    The Coats Amendment:  The Coats Amendment prohibits federal, state, and local government from discriminating against any individual who refuses to undergo training in abortion or against any entity that refuses to require or provide training for abortion.[21]

c.    The Weldon Amendment:  No federal funds may be made available to any federal, state or local government entity that subjects any health care professional, health care facility, organization, HMO, or health insurance company to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.[22]  Since 2005, Congress has passed this provision each year as part of the appropriations process.[23]

 


[1]  Cal. Bus. & Prof. Code 2253 (2014).

[2]   Id. § 2253(b)(1).  A note on California’s Health Workforce Pilot Project #171: On March 31, 2007, the California Office of Statewide Health Planning and Development (“OSHPD”) approved Health Workforce Pilot Project (“HWPP”) #171, sponsored by the University of California, San Francisco. Nurse practitioners, certified nurse-midwives, and physician assistants participating in HWPP #171 may provide first-trimester aspiration abortion under a legal waiver of the following provisions: (1) section 2253 of California Business and Professions Code, (2) section 75043 of title 22 of the California Code of Regulations, and (3) section 1399.541 of title 16 of the California Code of Regulations. This waiver applies only to identified health care providers working at demonstration sites participating in HWPP #171 for the duration of the project.

[3]  Cal. Bus. & Prof. Code §2725.4(a) (2014).

[4]  The standardized procedures specify the following:

  • The extent of supervision by a physician and surgeon with relevant training and expertise.
  • Procedures for transferring patients to the care of the physician and surgeon or a hospital.
  • Procedures for obtaining assistance and consultation from a physician and surgeon.
  • Procedures for providing emergency care until physician assistance and consultation are available.
  • The method of periodic review of the provisions of the standardized procedures.

These 5 standardized procedures listed above also apply to physician assistants under Cal. Bus. & Prof. Code §3502.4(b).

[5]  Cal. Bus. & Prof. Code §§2725.4(b),  2725.4(c) (2014).

[6] Cal. Bus. & Prof. Code §3502.4(a) (2014).

[7] Cal. Bus. & Prof. Code §3502.4(b)(1) – (5) (2014). These procedures are the same as those listed above for nurse practitioners and nurse-midwives.

[8]   Cal. Health & Safety Code § 123420(c) (2011).

[9]   Id. § 123420(d).

[10]   Id. § 123420(c).

[11]   Id. § 123420(a); 42 U.S.C. § 300a-7 (2011).

[12]    42 U.S.C § 1396u-2 (2011).

[13]   Cal. Health & Safety Code § 123420(a) (2011).

[14]   Id.

[15]   Id. § 123418.  This provision complies with the program requirements for residency education in obstetrics and gynecology of the Accreditation Council for Graduate Medical Education.  See also ACGME Program Requirements for Graduate Medical Education IV.A.2.d. (Jan. 1, 2008); the Coats Amendment, 42 U.S.C. § 238n (1996) (prohibiting federal, state, and local government from discriminating against any individual who refuses to undergo training in abortion or against any entity that refuses to require or provide training for abortion).

[16]   Cal. Health & Safety Code § 123420(b) (2011).

[17]   Id.

[18]   See also Regulation for the Enforcement of Federal Healthcare Provider Conscience Protection Statutes, 76 Fed. Reg. 9976 (Feb. 23, 2011) (to be codified at 45 C.F.R. pt. 88).  On December 19, 2008, the Bush Administration published a final regulation intending to give individuals and institutions the ability to refuse to perform and to prohibit requiring the performance of, or participation in, health care services which those persons or entities may object to for religious, moral, ethical, or other reasons.  This regulation was titled, “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law.” This rule went into effect on January 20, 2009.  On March 10, 2009, the Department of Health and Human Services (“DHHS”) published a “Rescission Proposal,” which proposed to fully rescind it.  On February 23, 2011, the DHHS published revised regulations, rescinding in part and revising in part the December 19, 2008 Bush Conscience Regulations.

[19]   42 U.S.C. §§ 238n (1996), 300a-7 (2000); Consolidated Appropriations Act, 2010, Pub. L. No. 111-117 § 508(d)(1), 123 Stat 3034 (2009).

[20]   42 U.S.C. § 300a-7 (2000).

[21]    Id. § 238n.

[22]   Consolidated Appropriations Act, 2010, Pub. L. No. 111-117 § 508(d)(1), 123 Stat 3034 (2009).

[23]   Consolidated Appropriations Act, 2005, Pub. L. No. 108-447 § 508(d)(1), 118 Stat 2809 (2004); Departments of Labor, Health & Human Services, and Education, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-149 § 508(d)(1), 119 Stat 2833 (2005); Consolidated Appropriations Act, 2008, Pub. L. No. 110-161 § 508(d)(1), 121 Stat 1844 (2007); Omnibus Appropriations Act, 2009, Pub. L. No. 111-8 § 508(d)(1), 123 Stat 524 (2009).