Whitefish, Mont., population 7,600, sits as a gateway to the icy mountains that connect the United States to Canada across Glacier National Park. Despite the town’s small size, it is downright urban compared to much of Montana’s Flathead Valley, where hundreds of miles of national forest, lakes and ranches stretch in nearly every direction. Many women looking for reproductive health care — and in particular, for abortion care — had to drive over 100 miles to find it.
Until the arrival of Helen Weems.
Weems, 50, has been working as an advanced practice nurse for two decades. She moved to Whitefish and reopened All Families Healthcare, a primary care clinic specialized in sexual and reproductive health care, in February 2018. The original All Families Healthcare closed in 2014, after a local resident broke in, destroying nearly everything of value.
When Weems reopened the clinic, she wanted to make sure that she could provide women the full spectrum of reproductive health care, from contraceptive implants to abortion care. But the state of Montana prevents advanced practice nurses —a nurse with post-graduate education in nursing — from performing abortions.
Now, Weems, who is being represented by the American Civil Liberties Union and the Center for Reproductive Rights, is challenging that law.
Montana is one of 10 states (in addition to Kansas, Idaho, Indiana, Louisiana, Maine, Mississippi, Texas, Virginia and Wisconsin) that have seen similar lawsuits in the past year challenging physician-only abortion rules.
In many states, advanced clinicians like Weems serve as the primary care provider for their patients and are allowed to perform duties that many view as more complicated, including endometrial biopsies and managing opioid pain medicines — but they are barred from performing abortions. As access to abortion has been sharply restricted over the past decade, women’s rights groups are pushing to expand the definition of abortion providers.
Most of the physician-only rules have been on the books since the Roe v. Wade ruling in 1973. The initial rules aimed to ensure that women were receiving care from qualified providers, and advanced practice clinicians didn’t exist in the way they do now, according to Elizabeth Nash, a policy analyst at the Guttmacher Institute, a reproductive rights organization.
Nash says the rules haven’t kept up with the evolution of health care — in particular following the Food and Drug Administration’s approval in 2000 of the so-called abortion pill. The abortion pill (a misnomer as it’s actually two separate drugs) is a way of terminating a pregnancy in the first trimester through medication alone, with two pills usually taken over the course of two days. Advanced nurse practitioners who can administer other medications, including opioid pain medications, have argued that the exclusion of these drugs from their scope of practice is illogical and unjust.
The American Congress of Obstetricians and Gynecologists agrees, supporting advanced clinicians’ ability to perform abortions to the level they’ve been trained. The American Medical Association disagrees, and in a statement said, “Abortion is a medical procedure and should be performed only by a duly licensed physician and surgeon in conformance with standards of good medical practice.”
Those challenging the current laws have argued that physician-only rules are part of a mass of restrictions that create a severe burden on both patients and providers. Many of the states seeing these lawsuits are areas that already face a combination of large rural areas and a shortage of physicians. In Texas, for example, physician-only laws exist on top of a waiting period, state-directed counseling designed to discourage abortion, restriction of funding on both state and private health insurance, and a mandated ultrasound where the provider must show and describe the image to a woman seeking abortion.
Roe v. Wade, and subsequent landmark rulings such as Planned Parenthood v. Casey, guaranteed women not just the right to abortion but to an abortion without “undue burden.” As new conservative appointees take their seats on the Supreme Court bench, abortion rights advocates are focusing even more energy on the state level.
“Every year there has been one or two more restrictions to the point at which now it’s just a maze, and you’re lucky if you can get access to care,” says Rupali Sharma, an attorney at the Lawyering Project who has worked on cases challenging physician-only laws in Texas and Indiana. “If you have to sleep in your car because of a waiting period or pawn your wedding ring, then you’re not really enjoying the right to abortion, even if you were able to get your procedure at the end of the day,” she adds.
In Maine, Planned Parenthood of Northern New England, the Family Planning Association of Maine and several advanced practice registered nurses filed a lawsuit challenging the state’s physician-only rule. As reported in the Wall Street Journal, lawyers for Maine argue that preventing advanced clinicians from performing abortion doesn’t constitute undue burden. In a brief, lawyers for the state wrote: “The plaintiffs are challenging a statute regulating abortion that has been in effect for nearly 40 years — essentially since the time that abortions first became legal in Maine. There is, therefore, no ‘before and after’ comparison that can be made here.”
As the lawsuits continue to unfold, Weems received an injunction from the state of Montana that has allowed her to provide abortions since April. She hopes that her lawsuit will make that freedom permanent.
“Advanced practice clinicians are really poised to fill this very real need. Maybe this case could be a really important precedent for other states. It’s so good for patient access, for patient care,” she says.
