Recent cases striking down state provisions barring mid-level clinicians—such as advanced practice nurse practitioners, physician assistants, and certified nurse midwives—from performing abortions have opened a new path to expanding access for people seeking to terminate pregnancies.
Suits challenging physician-only abortion laws could succeed in states with other protections for reproductive rights, said Rachel Rebouché, a nationally known expert in abortion law who teaches at the University of Texas School of Law. According to independent health research and policy organization KFF, access to abortion up to viability is protected in 26 states and DC.
Those that have already succeeded generally followed two paths: one citing state constitutional amendments added after the US Supreme Court overruled Roe v. Wade, and another applying already protected privacy rights.
Such measures originally were adopted for the “benign” purpose of ensuring patient safety during the early days of legalized abortion, but have since been applied to virtually eliminate access, Peyton Humphreville, a senior staff attorney at Planned Parenthood Federation of America, said.
Ending them would mean a wider array of certified healthcare professionals could provide abortions, expanding access to the procedure and relieving some of the pressure posed by nationwide doctor shortages and healthcare deserts.
But mid-level clinicians don’t receive the type of training needed to be able to quickly recognize and address complications, according to Christina Francis, a physician and CEO of the American Association of Pro-Life Obstetricians and Gynecologists. “Surgical and chemical abortions often result in life-threatening adverse events that require physician-level training to treat,” according to Gavin Oxley, a spokesman for Americans United for Life.
Voter Action
According to Rebouché, a lawsuit recently filed in Arizona stands out as an example of the first type of challenge. Although the case hasn’t yet been decided, it rests on a 2024 state constitutional amendment that prohibits Arizona from enacting, adopting, or enforcing any law, regulation, policy, or practice that restricts the right to end a pregnancy before viability absent a compelling state interest.
A series of statutes enacted between 2009 and 2011—banning APCs from providing abortions, requiring doctors to be present, and imposing penalties ranging from licensure loss to civil and criminal sanctions on APCs and their employers—conflict with the amendment, a complaint filed Feb. 4 in the Arizona Superior Court, Maricopa County said.
There’s no medical justification for these measures, which severely reduced the number of clinics able to provide abortion care in the state, the APCs said.
In Ohio, a trial judge relied on similar reasoning to block laws imposing licensing sanctions on APCs who provide abortion medications. The court said the provisions likely couldn’t stand after voters added abortion protections to the state constitution in 2023.
Patient health is the only state interest that an abortion regulation can constitutionally advance, and these restrictions weren’t narrowly tailored to or the most restrictive means of advancing that interest, the judge said. Additionally, the provisions discriminated against APCs who provided only abortion care because Ohio allows other APCs to prescribe the same drugs for other purposes, including miscarriage management, she said.
A bench trial in that case is scheduled for March 15, 2027.
It’s possible decisions favoring APCs could be reversed, UT’s Rebouché said. So far, the Ohio Supreme Court’s elected justices have struck down other anti-abortion laws based on the constitutional amendment, but lawmakers keep adding new ones, and it’s difficult to predict whether the Republican-dominated court will disfavor provisions that don’t directly ban abortion.
Privacy Rights
The Alaska and Montana top courts have taken a different route, interpreting existing provisions in their state constitutions as protecting a right to abortion, including ones provided by non-physicians.
An Alaska trial judge struck down physician-only measures in September 2024, citing an earlier Alaska Supreme Court ruling that the state constitution’s fundamental right to privacy encompasses reproductive rights, including abortion. She also said the provisions violated the APCs’ constitutionally protected equal protection rights because they treat APCs who provide abortion care differently from APCs who provide other treatments.
The Alaska Supreme Court heard oral arguments in the case last October. Julia Marks of Legal Voice, which represents the plaintiffs, is optimistic the top court will uphold the trial judge’s decision.
Alaska law allows APCs to provide care for miscarriages, including prescribing mifepristone, Marks said. The only carve-out is for abortions. Additionally, the rate of medical complications hasn’t increased since the 2021 injunction, which applied only to the provision blocking APCs from providing medication abortions, and no complications have required hospitalization.
The evidence for upholding the injunction “is so clear in this case,” Marks said.
And the Montana Supreme Court in 2023 struck down a measure prohibiting APRNs from performing abortions, applying its reasoning from a 1999 case, saying a similar measure applicable to PAs violated the state constitution’s privacy guarantee.
The court observed in a 2025 decision striking down a 20-week gestational age ban and other anti-abortion measures that treating similarly situated providers as separate classes based only on the purpose for which they offered care likely is unconstitutional.
Montana officials, like the Ohio ones, keep adding new restrictions, but the state’s top court has consistently rejected their attempts to narrow abortion access.
The court is divided, however, with two of its seven elected justices dissenting from an April 1 opinion upholding an injunction against an abortion clinic licensing provision.
Planned Parenthood’s Humphreville chalked this up to a “mismatch” between lawmakers attempting to rollback abortion protections and voter-led efforts to protect access.
Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
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