Alaska law saying only doctors can provide abortions is unconstitutional, judge rules

ANCHORAGE, Alaska — An Alaska judge struck down Wednesday a decades-old state law that restricted who could perform abortions in the state.

The decision comes out of a 2019 lawsuit brought by Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, which challenged the law that says only a doctor licensed by the State Medical Board can perform an abortion in Alaska.

Alaska Superior Court Judge Josie Garton in 2021 granted the group’s request to allow advanced practice clinicians to provide medication abortion pending her decision in the underlying case. Garton at that time said the organization was likely to succeed in its lawsuit challenging the law as unconstitutional.

Planned Parenthood in its lawsuit argued there was no medical justification for the restriction and noted that advanced practice clinicians — which include advanced practice registered nurses and physician assistants — provide services that are “comparably or more complex” than medication abortion or aspiration, such as delivering babies and removing and inserting intrauterine contraceptive devices. Those care providers help fill a void in the largely rural state where some communities lack regular access to doctors, according to the group’s lawsuit.

Planned Parenthood also asked that an Alaska Board of Nursing policy that it said prevented advanced practice registered nurses from using aspiration in caring for women who suffered miscarriages be struck down as unconstitutional.

The Alaska Supreme Court has interpreted the right to privacy in the state’s constitution as encompassing abortion rights.

Women, particularly in rural Alaska, have to fly to larger cities, such as Anchorage, Juneau or even Seattle, for abortion care because of the limited availability of doctors who can provide the service in the state, or sometimes women wait weeks before they’re seen by a doctor, according to the lawsuit.

Delays increase medical risk and cost and “make it impossible for many women to access medication abortion care, which is only available in the first 10 weeks of pregnancy,” the lawsuit states.

Attorneys for the state, however, argued Garton’s 2021 decision allowing advanced practice clinicians to provide medication abortion while the case played out had no real effect on the total number of women who received abortions from Planned Parenthood.

“The quantitative evidence does not suggest that patients are delayed or prevented from obtaining abortion care in Alaska,” Alaska Department of Law attorneys Margaret Paton Walsh and Christopher Robison wrote in a court filing.

Planned Parenthood attorneys said that since the 2021 order, medication abortion has been available every day that advanced practice clinicians have been in the organization’s clinics. An annual state report on abortions in Alaska shows that while overall abortion numbers have been comparable between 2021 and 2023, the number of medication abortions have jumped.

Advanced practice clinicians can provide abortion care in about 20 states, according to the Guttmacher Institute, a research group that supports abortion rights. In two of those states — New Mexico and Rhode Island — the care is limited to medication abortions. In California, certain conditions must be met, such as the clinician providing care during the first trimester, under a doctor’s supervision and after undergoing training, according to the organization.