PHOENIX — Another challenge has been filed against the legality of Arizona abortion restrictions in the wake of voter approval in 2024 of Proposition 139, this one over laws that say the procedure can be performed only by physicians.
The lawsuit filed in Maricopa County Superior Court contends that the Arizona Abortion Access Act bars the state from keeping certain "advanced practice clinicians'' like specially trained nurse practitioners, from providing abortion services. Attorneys for the challengers, represented by the American Civil Liberties Union, say the restrictions are an unnecessary — and illegal — barrier to women getting abortions, particularly in rural areas.
And what makes that important, according to Lauren Beall, staff attorney at the ACLU of Arizona, is that the initiative bars the state from doing anything that interferes with the "fundamental right of abortion'' prior to fetal viability.
The only exception in Prop. 139, approved by a 3-2 margin, is when there is a "compelling state interest that is achieved by the least restrictive means.'' That, the team of attorneys handling the challenge say, cannot be the case — especially since these clinicians were performing abortions themselves, or providing ancillary services until state lawmakers changed the law.
"The fundamental right to abortion means little when Arizonans cannot get care from a trusted and skilled provider in their own community,'' said Beall. "Overturning senseless restrictions that tie the hands of advance practice clinicians is the next step to fulfill the promise of the Arizona Abortion Access Act.''
The new filing comes as another Maricopa County Superior Court judge is weighing the legality of other restrictions that were on the books prior to the 2024 ballot measure. These include things like a 24-hour waiting period and a ban on telemedicine to prescribe pills that can induce an abortion.
A ruling on that case could come later this month.
Central to the new lawsuit is the fact that the state Board of Nursing, which regulates advanced practice nurses, concluded in 2008 that they can safely perform first-trimester abortions.
The legislature responded with a measure stripping the board of its power to decide who can perform the procedure. Attorneys for the practitioners said there is no legitimate reason for that, noting that two-thirds of the states that allow first-trimester abortions allow the procedure to be performed by advanced practice clinicians.
"In fact, APCs often train residents in abortion care,'' the lawsuit states.
Backing that up is a statement from the American College of Obstetricians and Gynecologists saying that bans like the ones in Arizona "are not based in science, improperly regulate medical practice, and impede patients' access to quality, evidence-based health care.''
And the federal Food and Drug Administration, in approving the drugs used in medication abortions, have authorized advanced clinicians to provide medication abortions.
The change in law has had an effect.
One of the plaintiffs is Greta Gill, who is a board-certified midwife, a type of advanced practice nurse with specialized training and certification. She is the medical director of Midwifery, which practices in southern Arizona and has admitting privileges at Tucson Medical Center.
According to the lawsuit, she used to provide second-trimester abortions, with her privileges authorizing her to induce labor where a patient would inevitably miscarry, but fetal demise had not yet occurred.
With the ban, she lost those privileges, the legal papers state. That means she has to transfer the patient to a physician who can legally induce labor, "even though the transfer is medically unnecessary and often distressing for the patient.''
A separate question goes to continuity of care for patients who chose advanced practice clinicians for their primary or sexual health care.
"By requiring these patients to seek out another provider for their abortion care, even though their established provider may be able and willing to provide that care, the APC Ban interferes with the provider-patient relationship at a time when patients may feel particularly vulnerable, disrupts continuity of care, and delays that care,'' the lawsuit states.
Then there's the argument that Arizona has a shortage of physicians, particularly in rural and tribal areas.
The lawsuit says that since the ban took effect, abortion has only been consistently available in Pima and Maricopa counties, with "interrupted and limited services'' at a single clinic in Coconino County. The requirement that only doctors can provide abortions, the challengers argue, means patients often have to drive for hours.
"In present and past positions as safety net providers treating patients with limited resources, plaintiffs have also encountered patients who had to travel to Tucson from elsewhere in Southern Arizona just to access health care,'' the lawsuit states. And if they find they are pregnant and want an abortion,"they have to figure out how to either stay in Tucson and wait until a physician can see them or leave and travel back.''
That delay, according to challengers, increases medical risk.
"Delays also can push patients past the gestational point at which medication abortion is available, requiring them to instead undergo a more invasive procedure,'' the lawsuit says.
But the ultimate argument that could decide the case is the scope of Proposition 139 with its language saying the state cannot adopt any law, regulation, policy or practice that "denies, restricts or interferes with'' the fundamental right of women to terminate a pregnancy prior to fetal viability. That is generally considered to be between 22 and 24 weeks. The attorneys say the restrictions run afoul of that ban.
"It forces plaintiffs to turn away patients seeking this care and decreases access to abortion by restricting the pool and geographic distribution of available providers in the state,'' they said.
Another provision spells out that the state cannot infringe on that individual's autonomous decision-making.'' The lawsuit says the regulations interfere with the ability of a woman to choose a health care provider who is medically qualified to perform the services.
"People choose their health care provider, whether a physician or an APC, for various reasons, some deeply personal,'' the lawsuit states. "Particularly when it comes to abortion care, they may have a strong preference for a trusted provider they have seen for other primary or reproductive health care.''
And sometimes, the lawsuit says, it can be as simple as people preferring a clinician to a doctor, wanting someone who can see them quicker, or even is closer to home.
"By overriding people's choice or provider, for no medical reason, the APC ban violates their autonomy.''
Other plaintiffs in the case include Janna Stefank, a nurse midwife who practices with Gill, and nurse practitioners Erin Bottai and Denei Dolman.
No date has been set for a hearing.
