A federal judge heard arguments Monday in a lawsuit over a Maine law that prohibits nurse practitioners and nurse midwives from performing abortions.
In addition to expanding access to abortion services in the state, the case could set a national precedent. At the center of the case is the 1979 law requiring that abortions be performed only by doctors.
Maine is one of 42 states with a similar restriction on abortion providers, according to the Guttmacher Institute, a reproductive health and rights research organization. If the judge rules that Maine’s law is unconstitutional, the case could be used to mount similar legal battles in other states. “Because Maine is a large rural state, and travel is difficult, and poverty rates are high, laws like this fall particularly harshly on people in Maine who are seeking abortions,” said Zachary Heiden, legal director for the American Civil Liberties Union of Maine. “So we believe this law is unconstitutional everywhere.”
Planned Parenthood of Northern New England, along with the national and state American Civil Liberties Unions, filed the lawsuit in U.S. District Court in Portland in 2017. The state’s attorneys are in the unique position of defending a law the new governor is actively trying to change.
Gov. Janet Mills introduced a bill this month that would allow physician assistants, nurse practitioners and nurse midwives to perform abortions. She offered a similar bill last year when she was the state’s attorney general, but it failed to gain traction with the administration of Republican former Gov. Paul LePage and in the Legislature. But its chances for success are higher with new Democratic majorities in both the Maine House and Senate. A spokesman for the Attorney General’s Office declined to comment Monday, citing both the pending lawsuit and legislation.
District Judge Nancy Torresen asked the plaintiff’s attorney whether she should wait to rule while the Legislature considered the proposed legislation.
“A court ruling would make this clear that this is a right, not just a public policy subject to the whims of the Legislature that could be repealed,” said attorney Julia Kaye, who argued the case Monday from the national American Civil Liberties Union.
Overall, abortion rates have declined dramatically in the U.S. and Maine, a change experts attribute to improved methods of birth control. Despite Maine’s relatively stable population, 1,959 abortions were performed in the state in 2017, compared with 2,689 in 2007, according to the Maine Center for Disease Control and Prevention. Most abortions in Maine are done at three women’s health centers – Planned Parenthood in Portland and other clinics in Augusta and Bangor.
The plaintiffs include nurse practitioners Julie Jenkins of Belfast, Alison Bates of Portland, Stephanie Small of Topsham, and Maine Family Planning, the health care provider in Augusta that offers abortion services. The defendants are the Maine Attorney General’s Office and district attorneys in the state’s 16 counties.
The state has asked the judge to rule in its favor without a trial, and the hearing Monday was related to that motion.
Assistant Attorney General Chris Taub, who represented the state and the other defendants during Monday’s hearing, said the law was initially intended to protect women’s health and prevent dangerous abortions by people without the proper medical training. But he said the courts allow states to place restrictions on who can perform abortions, and there is no evidence the existing law is preventing women from accessing the procedure.
“It certainly is true that now it would expand access to abortion, but there’s no evidence that requiring physicians to perform them is an undue burden,” Taub said.
Kaye, the attorney for the plaintiffs, argued Monday that nurse practitioners and nurse midwives are capable of performing both medical and surgical abortions. She also said women who need surgical abortions must travel to the clinic locations in either Augusta, Bangor or Portland — a financial burden for many women in a largely rural state.
“It is undisputed that the doctor-only law delays access to care,” Kaye said. “It poses severe financial burdens on low-income women in Maine, and it jeopardizes the confidentiality of women’s abortion decisions.”
There is no timetable for Torresen to make her decision on the state’s motion for summary judgment. If she rules in favor of the state, the case will be closed. If she rules in favor of the plaintiffs, the case would remain on track for a trial.