Abortion Statutory Interpretation –Whether Section 20-208 of the Health-General Article Prohibits Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants from Providing Medication Abortions – Whether the Same Statute Prohibits Physician Assistants from Performing Surgical Abortions

ABORTION

STATUTORY INTERPRETATION – WHETHER SECTION 20-208 OF

THE HEALTH-GENERAL ARTICLE PROHIBITS NURSE

PRACTITIONERS, CERTIFIED NURSE MIDWIVES, AND

PHYSICIAN ASSISTANTS FROM PROVIDING MEDICATION

ABORTIONS – WHETHER THE SAME STATUTE PROHIBITS

PHYSICIAN ASSISTANTS FROM PERFORMING SURGICAL

ABORTIONS

January 10, 2020

The Honorable Ariana Kelly

Maryland House of Delegates

You have requested our opinion on two questions about the

requirement in State law that “[a]n abortion must be performed by

a licensed physician.” Md. Code Ann., Health-Gen. (“HG”) § 20-

208. First, you ask whether that “physicians-only” statute prohibits

nurse practitioners, certified nurse midwives, and physician

assistants from prescribing and providing to a patient the necessary

drugs to produce a medication abortion, i.e., a regimen of two

prescription drugs that a patient can take to terminate a pregnancy.

Second, you ask whether the statute prohibits a physician assistant

from performing a surgical abortion under a delegation agreement

with a supervising physician. In our opinion, a Maryland court

would likely conclude, as to your first question, that nurse

practitioners, certified nurse midwives, and physician assistants

may provide medication abortions but that, as to your second

question, only physicians, not physician assistants, may perform

surgical abortions.

As to medication abortions—which were not yet available in

the United States when HG § 20-208 was enacted—the statute’s

text is ambiguous. Although the word “abortion” in isolation may

be most often understood to include all methods of inducing the

termination of a pregnancy, the phrase “an abortion must be

performed,” when read as a whole and in context, seems to have a

narrower surgical connotation. After all, one would not ordinarily

say that a health care practitioner has “performed” an abortion

merely by prescribing drugs that the patient then chooses to take

herself. At the very least, there is some ambiguity about whether

the language of the statute should be read to apply to medication

abortions, such that a Maryland court would likely turn to other

indicia of the General Assembly’s intent, including the legislative

history, the historical context, and the legislative purpose to

determine the meaning of the statute. And here all of those indicia

3

4 [105 Op. Att’y

suggest that the Legislature intended HG § 20-208 to apply only to

surgical abortions—the only safe abortion method available in

Maryland at the time—not to erect barriers for women to access

future abortion methods that could be safely and effectively

provided by health care practitioners other than physicians. In fact,

reading the ambiguous language of HG § 20-208 to extend to

medication abortions seems inconsistent with the overall goal of

Maryland’s abortion statute to protect access to safe abortions, see

HG § 20-209, and might even raise constitutional questions about

whether the statute imposes an undue burden on abortion access—

questions that a Maryland court would likely interpret the statute to

avoid. Thus, although the answer is not free from doubt, we think

a Maryland court would likely find that HG § 20-208 does not

apply to medication abortions.

As to surgical abortions, however, the language of the statute

is clear that they “must be performed by a licensed physician” and

that the definition of “physician” for purposes of that requirement

does not include a physician assistant. See HG § 20-207 (defining

“physician”). Although physicians may generally delegate certain

medical acts to physician assistants, that does not transform the

physician assistant into a physician as defined under the statute. To

the contrary, as the Court of Special Appeals has held, the authority

of physicians to delegate medical acts that they may perform under

Title 14 of the Health Occupations Article generally does not

negate the plain language of a statute located outside of Title 14

that expressly requires a physician to perform a particular act. See

Rideout v. Department of Pub. Safety & Corr. Servs., 149 Md. App.

649, 657-58 (2003). Given Rideout and the express language of

the physicians-only statute, we think a Maryland court would likely

hold that HG § 20-208 prohibits a physician assistant from

performing a surgical abortion. The statute would not, however,

prohibit a physician assistant from performing certain tasks under

a delegation agreement during a surgical abortion in which a

physician is personally involved.

I

Background

A. Maryland’s Abortion Statute

In 1867, the General Assembly first made it a crime “to

produce abortion at any stage of pregnancy, by prescribing

medicines, or by any other means,” but exempted “the production

of abortion by a regular practitioner when deemed necessary for the

Gen. 3] 5

safety of the mother.” 1 1867 Md. Laws, ch. 185, § 11. That statute

was repealed and re-enacted the following year, making it a crime

to publicize, sell, or use “for the purpose of producing abortion . . .

any poison, drug, mixture, preparation, medicine or noxious thing

or instrument of any kind whatever.” 1868 Md. Laws, ch. 179.

Exempted, again, was “the production of abortion by a regular

practitioner when, after consulting with one or more respectable

physicians, he shall be satisfied that the fetus is dead, or that no

other method will secure the safety of the mother.” Id. Thus, under

that scheme, abortion of a live fetus by any means was illegal, and

physicians could intervene only as a last resort for the safety of the

mother.

A century later, in 1968, the Legislature relaxed the law’s

requirements at least somewhat to permit a licensed physician to

“terminate a human pregnancy” under additional circumstances.

1968 Md. Laws, ch. 470. More specifically, a physician could

terminate a pregnancy if the termination took place in an accredited

and licensed hospital and one or more of the following conditions

existed:

(1) Continuation of the pregnancy is likely to

result in the death of the mother;

(2) There is a substantial risk that continuation

of the pregnancy would gravely impair the

physical or mental health of the mother;

(3) There is substantial risk of the birth of the

child with grave and permanent physical

deformity or mental retardation;

(4) The pregnancy resulted from a rape

committed as a result of force or bodily

harm or threat of force or bodily harm and

the states’ attorney [in the jurisdiction] in

which the rape occurred has informed the

hospital abortion review authority in

writing over his signature that there is

1

Although this enactment referred to a “regular practitioner,” it

appears that the Legislature was referring to what we would now call a

physician. In fact, as part of the same enactment, the Legislature created

an early licensing scheme for physicians, responding to concerns that

“mere imposters” were practicing medicine without proper education.

1867 Md. Laws, ch. 185.

6 [105 Op. Att’y

probable cause to believe that the alleged

rape did occur.

Id. But, even then, a physician could terminate a pregnancy only

before 26 weeks of gestation and only if authorization had been

granted in writing by an abortion review authority appointed by the

hospital. Id. It also remained a misdemeanor to sell or give “any

drug, medicine, preparation, instrument, or device for the purpose

of causing, inducing, or obtaining a termination of human

pregnancy” other than by a licensed physician in a hospital. Id.

The legal landscape changed again in 1973 when the Supreme

Court issued its landmark decision in Roe v. Wade, 410 U.S. 113

(1973). In Roe, the Court found unconstitutional a statute that had

prohibited abortions at any stage of pregnancy except to save the

life of the mother. Id. at 164. The Court explained that the

constitutional right of privacy was “broad enough to encompass a

woman’s decision whether or not to terminate her pregnancy.” Id.

at 153. At the same time, however, the Court recognized the State’s

interests “in safeguarding health, in maintaining medical standards,

and in protecting potential life.” Id. at 154. In sum, the Court held

that, until the fetus is viable, “the abortion decision and its

effectuation must be left to the medical judgment of the pregnant

woman’s attending physician,” while the State, “if it chooses,

[may] regulate the abortion procedure in ways that are reasonably

related to maternal health.” Id. at 164. Once the fetus is viable,

however, the Court held that the State may proscribe abortion

“except where it is necessary, in appropriate medical judgment, for

the preservation of the life or health of the mother.” Id. at 164-65. 2

The Court also held that the State could “proscribe any abortion by

a person who is not a physician” and could define the term

“‘physician’ . . . to mean only a physician currently licensed by the

State.” Id. at 165. Based on Roe, lower courts struck down much

of Maryland’s abortion statute that same year. See Vuitch v. Hardy,

473 F.2d 1370 (4th Cir. 1973); State v. Ingel, 18 Md. App. 514

(1973). But the statute was not amended at the time to repeal the

unconstitutional provisions.

2

Although Roe established a “trimester framework” for evaluating

abortion restrictions, the Supreme Court later rejected that precise

approach without disturbing Roe’s essential holding. Planned

Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 872-73 (1992)

(opinion of O’Connor, Kennedy, and Souter, JJ.). Now, when evaluating

whether an abortion restriction violates the federal Constitution, the

Court uses an “undue burden analysis” that asks whether the abortion

restriction has “the purpose or effect of presenting a substantial obstacle

to a woman seeking an abortion.” Id. at 878.

Gen. 3] 7

In 1991, the General Assembly enacted the current abortion

statute, which both repealed the provisions that had been rendered

unconstitutional by Roe and in large part codified the Roe decision.

See 1991 Md. Laws, ch. 1. In doing so, the Legislature declared

that, “[e]xcept as otherwise provided in this subtitle, the State may

not interfere with the decision of a woman to terminate a

pregnancy” either before “the fetus is viable” or, even after

viability, if (1) “[t]he termination procedure is necessary to protect

the life or health of the woman” or (2) “[t]he fetus is affected by

genetic defect or serious deformity or abnormality.” HG § 20-

209(b). The statute also provides that the Maryland Department of

Health may adopt regulations governing abortion only to the extent

that those regulations are “both necessary and the least intrusive

method to protect the life or health of the woman” and “not

inconsistent with established medical practice.” HG § 20-209(c).

However, consistent with the Supreme Court’s statement in Roe

that states could permissibly provide that only physicians may

perform abortions, 410 U.S. at 165, the statute requires that “[a]n

abortion must be performed by a licensed physician.” HG § 20-

208. The statute also specifically defines “physician” for purposes

of that requirement as “any person, including a doctor of

osteopathy, licensed to practice medicine in the State of Maryland

in compliance with the provisions of Title 14 of the Health

Occupations Article.” HG § 20-207.

In addition to the physicians-only requirement at issue,

Maryland’s abortion statute contains two other provisions that may

be relevant to your inquiry. First, a physician “is not liable for civil

damages or subject to criminal liability for a decision to perform

an abortion under [HG § 20-209] made in good faith and in the

physician’s best medical judgment in accordance with accepted

standards of medical practice.” HG § 20-209(d) (emphasis

added). 3 Second, “a physician may not perform an abortion on an

3

Our Office has previously questioned the practical effect of this

provision. See Bill Review Letter for S.B. 162 at n.3 (Feb. 18, 1991).

Because there is no longer any criminal penalty for abortion, this

provision appears to apply, if at all, only in the civil context. Id. And

even then, the provision provides immunity only in cases where a

physician has made the decision to perform an abortion “in accordance

with accepted standards of medical practice”—similar to the medical

standard of care—and thus it may provide immunity only in cases where

the physician could not be found liable in any event. Id. The immunity

also applies only to the physician’s decision to perform the abortion, not

the physician’s conduct in actually performing the abortion itself.

8 [105 Op. Att’y

unmarried minor unless the physician first gives notice to a parent

or guardian of the minor” or unless one of a series of exceptions

applies. HG § 20-103. The exceptions to that parental-notification

requirement permit a physician to proceed without giving notice,

i.e., to bypass the parent or guardian, if either (1) the minor does

not live with the parent or guardian and a reasonable effort to give

notice is unsuccessful or (2) in the professional judgment of the

physician: (a) notice may lead to physical or emotional abuse of

the minor; (b) the minor is mature and capable of giving informed

consent to an abortion; or (c) notification would not be in the best

interest of the minor. Id. 4 The General Assembly first added the

predecessor of this parental-notification provision in 1977 but with

a less robust bypass procedure. See 1977 Md. Laws, ch. 961. In

1985, our Office concluded that the original bypass procedure was

insufficient and, as a result, unconstitutional. 70 Opinions of the

Attorney General 3, 12 (1985). When the Legislature later

amended the rest of the abortion statute in 1991, it also remedied

the constitutional deficiency in the parental-notification provision

by adding new exceptions to the notice requirement, thereby

making the requirement enforceable.

B. Methods of Abortion

In 1991, the only safe and effective method of abortion

available in the United States was surgical. As we understand it,

there are two types of surgical abortion. The term surgical abortion

most often refers to an aspiration abortion, which is a procedure

that may be performed up to 14 to 16 weeks of gestation. See Nat’l

Academies of Sciences, Eng’g, & Med., The Safety and Quality of

Abortion Care in the United States 8 (2018). The term may also

refer to a procedure called dilation and evacuation (“D&E”), which

is performed between 14 and 20 weeks of gestation. Performing

the D&E procedure—also known as a second-trimester surgical

abortion—“requires advanced training and/or experience.” Id. at

62-63.

4

This parental-notification provision is itself an exception to the

general rule that a physician need not provide notice to a parent about

pregnancy-related treatment for a minor. See HG § 20-102. Under that

general provision, a minor has the same capacity as an adult to consent

to, among other things, “[t]reatment for or advice about pregnancy,” HG

§ 20-102(c), and “a licensed health care practitioner may, but need not,

give a parent . . . information about treatment needed by the minor or

provided to the minor . . . except information about an abortion,” HG

§ 20-102(f) (emphasis added). Notification about abortion is instead

governed by HG § 20-103.

Gen. 3] 9

The term “medication abortion,” as we understand it, usually

refers to a regimen of two prescription drugs. The first drug is

mifepristone, which did not become available in the United States

until 2000, when the U.S. Food and Drug Administration (“FDA”)

approved it as safe and effective under the brand name Mifeprex.

Mifepristone, which is sometimes known as the “abortion pill,”

works by blocking a hormone called progesterone, thereby causing

the lining of the uterus to thin and preventing the embryo from

staying implanted and growing. See Mayo Clinic, Medical Abortion

(July 7, 2018), https://www.mayoclinic.org/tests-proceduresmedical-

abortion/about/pac-20394687. The second drug is misoprostol,

which causes the uterus to contract and to expel the embryo through

the vagina. Id. Typically, the patient will self-ingest the pill

containing mifepristone in the office of the prescribing health care

practitioner and will then take misoprostol on her own at home (or

another location appropriate for the patient) 24 to 48 hours later.

See FDA, Mifeprex (Mifepristone) Information (Feb. 5, 2018),

https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-

and-providers/mifeprex-mifepristone-information. Patients can take

these drugs through 10 weeks of gestation to produce a medication

abortion. 5 Id.

The FDA, after approving Mifeprex, established a Risk

Evaluation and Mitigation Strategy (“REMS”) for mifepristone,

limiting the distribution of mifepristone to certified prescribers in

specified health care settings. Id. Under the original REMS,

mifepristone had to be provided “by or under the supervision of a

physician” who met certain qualifications, including:

(1) Ability to assess the duration of pregnancy

accurately.

(2) Ability to diagnose ectopic pregnancies.

(3) Ability to provide surgical intervention in

cases of incomplete abortion or severe

bleeding, or have made plans to provide such

care through others, and are able to assure

patient access to medical facilities equipped to

provide blood transfusions and resuscitation,

if necessary.

5

By medication abortions, we do not mean to refer to emergency

contraceptives, like the so-called “morning after pill,” which are

available over the counter to prevent a pregnancy, rather than to

terminate one.

10 [105 Op. Att’y

Id.; see also FDA, Risk Evaluation and Mitigation Strategy for

Mifepristone (June 8, 2011), https://www.accessdata.fda.gov/

drugsatfda_docs/rems/Mifeprex_2011-06-08_Full.pdf.

In 2016, however, the FDA revised its REMS for

mifepristone. See FDA, Mifeprex (Mifepristone) Information (Feb. 5,

2018); see also Risk Evaluation and Mitigation Strategy for

Mifepristone (April 11, 2019), https://www.accessdata.fda.gov/

drugsatfda_docs/rems/Mifepristone 2019_04_11_REMS_Full.pdf

(setting out the current REMS). Now, at least for purposes of

federal law, mifepristone no longer needs to be provided by or

under the supervision of a physician, but rather may be provided

“by or under the supervision of a healthcare provider who

prescribes” and who has the ability to assess the duration of

pregnancy, to diagnose ectopic pregnancies, and to provide

surgical intervention directly or through others. FDA, Mifeprex

(Mifepristone) Information (Feb. 5, 2018) (emphasis added).

Mifepristone must, however, be dispensed to the patient only in

clinics, medical offices, and hospitals, not in retail pharmacies. Id. 6

The FDA’s decision to amend its REMS to authorize the

provision of mifepristone by any “healthcare provider who

prescribes,” not just a physician, was consistent with the consensus

6

For purposes of this federal requirement, “dispense” appears to

include the “act of delivering a prescription drug to a patient . . . [b]y a

licensed practitioner or an agent of a licensed practitioner, either directly

or indirectly, for self-administration by the patient.” 21 C.F.R.

§ 208.3(b). That definition is somewhat different than the definition of

“dispense” under Maryland law, which is “the procedure which results

in the receipt of a prescription or nonprescription drug or device by a

patient or the patient’s agency and which entails the: (1) [i]nterpretation

of an authorized prescriber’s prescription for a drug or device; (2)

[s]election and labeling of the drug or device prescribed pursuant to that

prescription; and (3) [m]easuring and packing of the prescribed drug or

device in accordance with State and federal laws.” HO § 12-101(j). In

fact, the federal definition of dispense appears to encompass what is

understood in Maryland to be the “administering” of a prescription drug.

See HO § 12-102(e)(2) (defining “administering” to mean “the direct

introduction of a single dosage of a drug or device at a given time,

whether by injection or other means, and whether in liquid, tablet, or

capsule, other form”). In any event, regardless of the precise definition

of the term dispense under the REMS, the point is that mifepristone must

be provided to the patient in the clinic, medical office, or hospital. It is

our understanding that misoprostol, however, can be dispensed in retail

pharmacies.

Gen. 3] 11

in the medical community that physicians are not the only health

care providers who can safely prescribe and provide to the patient

the necessary drugs to produce a medication abortion. Indeed,

studies have concluded that nurse practitioners, certified nurse

midwives, and physician assistants all “can provide medication and

aspiration abortions safely and effectively” when they are trained

to do so. Nat’l Academies of Sciences, The Safety and Quality of

Abortion Care in the United States, at 14; see also Am. Pub. Health

Ass’n, Provision of Abortion Care by Advanced Practice Nurses

and Physician Assistants (Nov. 1, 2011). 7

C. Maryland’s Health Occupations Article

The Health Occupations Article sets forth the scopes of

practice for physicians, nurse practitioners, certified nurse

midwives, and physician assistants. Title 14 governs the practice

of medicine by physicians. The practice of medicine includes,

among other things, “[d]iagnosing, healing, treating, preventing,

prescribing for, or removing any physical, mental, or emotional

ailment,” and, of particular relevance here, the “[e]nding of a

human pregnancy.” Md. Code Ann., Health Occ. (“HO”) § 14-

101(o)(2). A physician may also “personally prepar[e] and

dispens[e]” the physician’s own prescriptions if the physician has

obtained a dispensing permit from the Board of Physicians (or may

dispense starter doses or samples without a dispensing permit if the

physician does not charge for them). HO § 12-102(c)(2); see also

HO § 12-102(d), (f). 8

With limited exceptions, a license is required to practice

medicine, see HO §§ 14-301, 14-601, and any person who attempts

to practice medicine without a license is subject to a fine,

imprisonment, or both. HO § 14-606. That said, Title 14 “does not

limit the right of . . . [a]n individual to practice a health occupation

that the individual is authorized to practice” under the Health

7

https://www.apha.org/policies-and-advocacy/public-health-policy

-statements/policy-database/2014/07/28/16/00/provision-of-abortion-care-by-

advanced-practice-nurses-and-physician-assistants

8

A physician also does not need a dispensing permit to dispense

prescription drugs in the course of treating a patient “at a medical facility

or clinic that is operated on a nonprofit basis,” “[a]t a health center that

operates on a campus of an institution of higher education,” or “[a]t a

public health facility, a medical facility under contract with a State or

local health department, or a facility funded with public funds.” HO

§ 12-102(g).

12 [105 Op. Att’y

Occupations Article. HO § 14-102. That proviso is important

because, as other health occupations have evolved over time, the

scopes of practice for those occupations have begun to overlap in

certain ways with the practice of medicine that had previously been

reserved for physicians. Here, we focus on the scopes of practice

for nurse practitioners, certified nurse midwives, and physician

assistants, respectively, as those are the three categories of

clinicians about whom you have asked.

The practice of nurse practitioners is broad and expressly

includes prescribing and administering drugs. See HO § 8-

101(m)(1)(5), (o)(2)(v). In fact, as far back as 1981, nurse

practitioners were given the authority to prescribe drugs under

certain conditions based on regulations adopted jointly by the

Board of Nursing and Board of Physicians. See Md. Code Ann.,

art. 43 § 122 (1957, 1980 Rep. Vol.) (authorizing the boards to

adopt such regulations); see also 8:5 Md. Reg. 473 (March 6, 1981)

(adopting the regulations); 7:21 Md. Reg. 2012 (Oct. 17, 1980)

(proposing the regulations). Since 2010, because of statutory

changes designed to provide more independence to nurse

practitioners, the regulations under which such nurse practitioners

prescribe drugs have been adopted solely by the Board of Nursing.

See 2010 Md. Laws, ch. 77. In 1993, the Legislature also granted

nurse practitioners the additional authority to dispense any drug

they were “authorized to prescribe” and “to the extent permitted by

law” in the course of treating patients at certain types of facilities.

HO § 8-508(c); COMAR 10.27.07.03A(11); COMAR 10.27.07.07;

see also 1993 Md. Laws, ch. 454. Nurse practitioners may also

operate independently from physicians, at least after an initial 18-

month period during which they must “consult and collaborate”

with either a physician or a nurse practitioner who serves as a

mentor. See HO § 8-302.1(d)(1); see also HO § 8-101(j) (defining

“mentor” as a certified registered nurse practitioner or licensed

physician who has three or more years of clinical practice

experience).

The practice of certified nurse midwives (who are, as we

understand it, a special subcategory of nurse practitioners) consists

of the “management and care of essentially normal newborns and

of essentially normal women” before, during, and after childbirth.

HO § 8-601(1). 9 In 1990, certified nurse midwives were first given

the authority to prescribe “substances commonly used in the

practice of nurse midwifery”—as determined by the State Board of

9

This opinion does not address “direct-entry midwives,” who are

distinct from certified nurse midwives. See HO § 8-6C-02.

Gen. 3] 13

Nursing in consultation with the State Board of Pharmacy and State

Board of Physicians—and to dispense those substances in the

course of treating patients at certain facilities. HO § 8-601(2); see

also 1990 Md. Laws, ch. 352. In 2017, the General Assembly

eliminated the requirement that the Board of Nursing consult with

the Board of Pharmacy and the Board of Physicians to determine

the extent of certified nurse midwives’ prescription authority. See

2017 Md. Laws, ch. 515.

Finally, unlike nurse practitioners and certified nurse

midwives, physician assistants may only practice under a

physician’s supervision, in accordance with a delegation agreement

entered into with the physician. More specifically, physician

assistants may perform medical acts that are (1) delegated by the

supervising physician; (2) appropriate to the education, training,

and experience of the physician assistant; (3) customary to the

practice of the supervising physician; and (4) consistent with the

delegation agreement filed with the Board of Physicians. HO § 15-

301(b). In 1986, the General Assembly first outlined the “patient

services” that physician assistants could provide—such as taking

patient histories and performing physical examinations—under an

approved “job description” from the Board of Physicians. See 1986

Md. Laws, ch. 759. Although that statute broadly stated that

physician assistants could also perform “other medical acts” that

were “permitted to be delegated” under a job description approved

by the Board of Physicians, id., it is our understanding that the

Board of Physicians did not permit the delegation of prescription

authority at the time.

In 1999, however, the Legislature broadened the authority of

physician assistants by replacing the requirement that they have a

“job description” with the requirement to have a “delegation

agreement” on file with the Board of Physicians and by expressly

authorizing physician assistants to prescribe and administer drugs

under a delegation agreement with a supervising physician as long

as the delegation agreement includes certain provisions and the

physician assistant meets certain professional qualifications. HO

§ 15-301(c)(7); see also HO § 15-302.2; 1999 Md. Laws, ch. 655.

When a delegation agreement allows a physician assistant to

perform so-called “advanced duties,” however, the Board of

Physicians must specifically authorize those duties. HO § 15-

302(c); see also COMAR 10.32.03.02B(2) (defining “advanced

duties” to mean “medical acts that require additional training

beyond the basic physician assistant education program required

for licensure”). Finally, in 2018, the Legislature further authorized

14 [105 Op. Att’y

physician assistants to personally prepare and dispense certain

drugs if (1) the supervising physician possesses a dispensing permit

when required to have such a permit; and (2) the physician assistant

only dispenses drugs within the supervising physician’s scope of

practice and the scope of the delegation agreement. HO § 15-

302.2(c); see also 2018 Md. Laws, ch. 442, 443.

II

Analysis

A. Medication Abortions

Your first question is whether HG § 20-208 prohibits nurse

practitioners, certified nurse midwives, and physician assistants

from prescribing and providing to a patient the necessary drugs to

produce a medication abortion. It is clear that these non-physicians

have authority to prescribe drugs, at least as a general matter. See,

e.g., HO §§ 8-508, 8-601, 15-301. They also have at least general

authority to dispense and administer prescription drugs. 10 See, e.g.,

HO §§ 8-101, 8-508, 8-601, 15-302.2. The question, then, is

whether the requirement that “[a]n abortion must be performed by

a licensed physician,” HG § 20-208, means that—even when these

practitioners would be acting within their scopes of practice under

10

Depending on the protocol used, it appears that providing a

medication abortion might involve the “administering” of drugs, the

“dispensing” of drugs, or both under Maryland law. For example, when

a health care practitioner provides mifepristone directly to a patient to

self-ingest in a clinic, medical office, or hospital, that may qualify as

“administering” the drug. See HO § 12-102(e)(2) (defining “administering”

as “the direct introduction of a single dosage of a drug or device at a

given time, whether by injection or other means, and whether in liquid,

tablet, or capsule, other form”). But when a health care practitioner

packages and provides misoprostol (i.e., the second drug in the protocol)

to a patient for the patient to take at home, that may qualify as

“dispensing.” See HO § 12-101(j). Regardless of the exact protocol

used, however, the health care practitioners at issue have at least general

authority both to dispense and administer prescription drugs, so long as

they are acting within their scopes of practice and in compliance with

any limits imposed by their licensing statutes. To the extent that the

licensing statutes impose more stringent restrictions on dispensing drugs

than on administering them, we need not decide which of those two acts

would be involved or how the licensing statutes would be applied in

specific cases. Instead, to answer your question, we need only focus on

whether HG § 20-208 categorically prohibits non-physicians from

providing medication abortions. If not, it will be up to the Board of

Nursing and Board of Physicians to clarify any uncertainty about the

difference between dispensing and administering as applied to the

practitioners they regulate.

Gen. 3] 15

the Health Occupations Article—they cannot prescribe and provide

to a patient drugs that, if taken by the patient as directed, result in

the termination of a pregnancy.

In answering that question, “[t]he cardinal rule,” as always,

“is to ascertain and effectuate the real and actual intent of the

Legislature.” State v. Bey, 452 Md. 255, 265 (2017) (internal

quotation omitted). Here, however, that task is more complicated

than usual because of subsequent developments in the medical field

that the Legislature did not anticipate. After all, when HG § 20-

208 was enacted, the only safe and effective method of abortion

available in the United States was surgical. Thus, at least at that

time, a surgical abortion was the only “abortion” that a health care

practitioner in Maryland would have possibly “performed,” and

physicians were the only practitioners in Maryland who would

have been able to provide that type of abortion. But the fact that

medication abortions were not available in Maryland in 1991 is not,

by itself, dispositive. Although a court “may consider the

circumstances existing and events occurring at the time of the

statute’s passage,” it must also “consider that our laws are addressed

to the future.” Kindley v. Governor of Maryland, 289 Md. 620, 625

(1981). And when a statute “is phrased in broad general terms,”

that often “suggests that the legislature intended the provision to be

capable of encompassing circumstances and situations which did

not exist at the time of its enactment.” Id. Keeping that in mind,

our task is to use the ordinary tools of statutory interpretation to

determine whether the Legislature intended HG § 20-208 to

regulate only the particular method of terminating a pregnancy that

physicians could safely and effectively perform in the United States

at the time—that is, surgical abortions—or to extend to other

methods of terminating a pregnancy found to be safe and effective

in the future regardless of how the medical field and medical

science might evolve.

Using those ordinary tools of statutory interpretation, we

begin with “the normal, plain meaning of the statute.” Bey, 452

Md. at 265. If the words of the statute, read in context, are both

“unambiguous and clearly consistent with the statute’s apparent

purpose,” our inquiry usually ends there. Id. “[E]ven when the

words of the statute are crystal clear” in the abstract, however, there

may still be ambiguity when the “application” of those words “in a

given situation is not clear.” University Sys. of Maryland v.

Baltimore Sun Co., 381 Md. 79, 93 (2004) (internal quotation

omitted). If the statutory language is indeed ambiguous either on

its face or as applied to a given situation, we then turn to other

16 [105 Op. Att’y

indicia of legislative intent, including the legislative history, the

purpose of the statute, and the “relative rationality and legal effect

of various competing constructions,” to help determine the

meaning of the statute. Witte v. Azarian, 369 Md. 518, 525-26

(2002).

Although the language of the statute here seems deceptively

simple—“[a]n abortion must be performed by a licensed

physician,” HG § 20-208—there is considerable ambiguity in that

language as applied to medication abortions. To be sure,

medication abortions are abortions in at least some sense of the

word; they are, after all, called medication abortions. But the

statute does not define “abortion” or tell us how the Legislature

intended the term to be understood here. So in the absence of any

express statutory definition, we turn to dictionary definitions as “a

useful starting point for determining what [the term] means, at least

in the abstract.” Marriott Employees Fed. Credit Union v. Motor

Vehicle Admin., 346 Md. 437, 447 (1997) (explaining that

dictionary definitions provide a “starting point” but are not

dispositive). And those definitions reveal that the word “abortion”

does not have a single, settled meaning that applies in all cases or

in all contexts. Although abortion is perhaps most often defined to

mean something like the “artificially induced termination of a

pregnancy,” MacMillan Dictionary 3 (1987), or the “artificially

induced termination of a pregnancy for the purpose of destroying

an embryo or fetus,” Black’s Law Dictionary 6 (2009)—definitions

which would include a medication abortion—those are not the only

recognized meanings of the term. Instead, depending on context,

“abortion” can also have a narrower meaning that is limited to

surgical procedures that result in the termination of a pregnancy.

See, e.g., Webster’s Encyclopedic Unabridged Dictionary 6 (1996)

(including, as one definition of abortion, “any of various surgical

methods for terminating a pregnancy”); The Random House

Dictionary of the English Language 6 (1987) (same); see also

Conn. Op. Att’y Gen. No. 2001-015, 2001 WL 790037 (July 2,

2001) (concluding that, in the context of Connecticut’s physicians-

only requirement, “abortion” meant a surgical abortion, not the act

of prescribing drugs).

Thus, regardless of what the word “abortion” most often

means in the abstract, we must interpret the statute at issue as a

whole and in context to determine the Legislature’s intent. See,

e.g., Stoddard v. State, 395 Md. 653, 663 (2006) (“[T]he meaning

of the plainest language is controlled by the context in which it

appears.” (internal quotation omitted)); see also, e.g., Marriott

Employees Fed. Credit Union, 346 Md. at 448 (reading a statutory

Gen. 3] 17

term “in conjunction with” the surrounding language). And when

read as a whole, the language providing that “[a]n abortion must be

performed by a licensed physician,” HG § 20-208, seems to have

more of a surgical connotation, because the word “perform” is

more naturally used in ordinary parlance in conjunction with a

surgical procedure than with the mere act of prescribing and

providing to a patient drugs that the patient will take herself. See,

e.g., The American Heritage Dictionary of the English Language

1345 (3d. ed. 1996) (defining “perform” as “[t]o begin and carry

through to completion,” as in “[t]he surgeon performed the

operation”); The American Heritage Dictionary 921 (2d College

ed. 1991) (“[t]o begin and carry through to completion,” as in to

“perform surgery”); MacMillan Dictionary 748 (1987) (“to begin

and carry out to completion,” as in “[a] noted surgeon performed

the operation”); Webster’s New World Dictionary of the English

Language 1056 (2d College ed. 1978) (“to act on so as to

accomplish or bring to completion”).

To illustrate what we mean, unlike a surgical abortion, during

which a physician is responsible for performing the operation from

start to finish, a medication abortion is not something that a health

care practitioner “carr[ies] out” to “completion” or perhaps even

“carr[ies] out” at all. Rather, after a health care practitioner

provides the necessary drugs to the patient, the patient is the one

who ultimately chooses to put the first drug (containing

mifepristone) in her own mouth and then, 24 to 48 hours later, takes

the second drug (containing misoprostol) on her own, typically at

home. That reality makes the statutory language an awkward fit if

the General Assembly intended the physicians-only requirement to

apply to all methods of terminating a pregnancy, even via drugs or

medicines that the patient takes herself. Although the word

“perform” can have other broader definitions, such as to “do,” see,

e.g., Webster’s New Universal Unabridged Dictionary 1439

(2003), there is at the very least some ambiguity about whether,

given the use of the word “performed” in HG § 20-208, the

Legislature intended the provision to extend to medication

abortions.

To resolve this ambiguity, a court would turn to other indicia

of legislative intent, such as the legislative history, the historical

context, and the statutory purpose. As an initial matter, the

legislative history and historical context here suggest that HG § 20-

208 does not apply to medication abortions. Whereas prior

versions of the statute specifically made it illegal to “produce

abortion . . . by prescribing medicines, or by any other means,”

18 [105 Op. Att’y

1867 Md. Laws, ch. 185 (emphasis added), or to sell or give “any

drug, medicine, preparation, instrument, or device for the purpose

of causing, inducing, or obtaining a termination of human

pregnancy,” 1968 Md. Laws, ch. 470 (emphasis added), that

broader language was notably absent from the 1991 abortion

statute. Instead of that broad prior language, which would have

applied to surgical and medication abortions alike, the Legislature

chose to require only that, if an “abortion” is “performed,” then it

must be performed by a “licensed physician.” HG § 20-208. That

narrower choice of language was no accident; it reflects the

Legislature’s explicit decision after Roe to shift from a statutory

scheme that had, with limited exceptions, broadly criminalized the

termination of a pregnancy—regardless of the method used—to an

entirely different statutory scheme that protects access to safe

abortions under Roe. In fact, as explained during the floor debates

over the 1991 bill, the General Assembly intentionally abandoned

the broader language that proscribed selling or giving “drugs” to

“caus[e]” or “induc[e]” the termination of a pregnancy because that

language was “unnecessary” in light of Roe and in light of other

provisions of law that already required individuals to “be licensed”

to sell drugs and already prohibited individuals from practicing

medicine without a license. Senate Floor Debate, S.B. 162, 1991

Leg., Reg. Sess.; see also, e.g., HO § 14-601 (prohibiting the

unauthorized practice of medicine).

Thus, the decision to abandon the prior language that had

specifically applied to drugs and had specifically prohibited the

“causing” or “inducing” of an abortion implies that the Legislature

was narrowly focused in HG § 20-208 on the only safe and

effective method of abortion that physicians could “perform” at the

time—that is, surgical abortions—and was leaving the regulation

of drugs that could be used to terminate a pregnancy to other

existing provisions of law. In other words, although prior versions

of the statute may have prohibited non-physicians from prescribing

drugs to cause or induce an abortion, the 1991 abortion statute was

intended as a departure from those prior versions, as evidenced by

its far narrower language. See, e.g., Barr v. Barberry Bros., 99 Md.

App. 33, 40 (1994) (recognizing that “when substantive changes

are made it indicates an intent to change the meaning of that

statute” (internal quotation omitted)). Rather than carry forward

language from the prior versions, the Legislature sought to “erase

any form of language that contradict[ed] the purpose of Roe v.

Wade . . . [and] any antiquated language that predate[d] the present

practice.” Senate Floor Debate, S.B. 162, 1991 Leg., Reg. Sess.

The legislative history and historical context of HG § 20-208 thus

support reading the statute not to apply to medication abortions.

Gen. 3] 19

Similarly, the purpose behind the physicians-only

requirement, as well as the 1991 abortion statute more generally,

suggests that the Legislature did not intend for HG § 20-208 to

apply to medication abortions. See Kaczorowski v. Mayor & City

Council of Baltimore, 309 Md. 505, 513 (1987) (explaining that,

when a statute is ambiguous, a court considers “not only the literal

or usual meaning of the words, but their meaning and effect in light

of the setting, the objectives and purpose of the enactment”

(internal quotation omitted)). As explained by our Office in an

opinion about the 1968 abortion statute, the purpose of the

physicians-only requirement as it existed at that time was to

“protect the health and lives of women by requiring abortions to be

performed only by licensed physicians, who presumably have the

requisite skill.” 56 Opinions of the Attorney General 237, 242

(1971). Although much of the 1968 abortion statute was later

struck down as unconstitutional after Roe v. Wade, the basic

purpose of the physicians-only requirement as it was enacted in

1991 seems to be the same: to protect the health and lives of

women seeking abortions.

Given that purpose, the Legislature presumably sought to

require that physicians “perform[]” abortions because physicians

were the only persons then qualified to provide what was at the

time the only safe and effective abortion method available in the

United States, not because the Legislature was trying to limit access

to future abortion methods that had yet to be approved and that

could be safely and effectively provided by health care practitioners

other than physicians. Cf. Conn. Op. Att’y Gen. No. 2001-015

(finding that the purpose of physicians-only requirement was “to

protect women from undergoing surgical procedures by those

untrained and unqualified individuals who were performing illegal

abortions under unsanitary conditions prior to the Roe v. Wade

decision”). In fact, the broader purposes of the 1991 abortion

statute (of which HG § 20-208 was a part) were to codify Roe v.

Wade and to protect the rights of women under Roe to access safe

abortions, not to erect barriers to access unrelated to their health or

safety. To that end, the Legislature expressly declared that, except

as otherwise provided in the same subtitle, “the State may not

interfere with the decision of a woman to terminate a pregnancy”

before the fetus is viable and that any regulations issued by the

Maryland Department of Health must be “both necessary and the

least intrusive method to protect the life or health of the woman”

and “not inconsistent with established medical practice.” HG § 20-

209(b), (c). Those provisions seem to reflect an overall intent on

the part of the Legislature to protect, not unduly restrict, access to

20 [105 Op. Att’y

safe abortions. See Wash. Op. Att’y Gen. No. 2004-1, 2004 WL

326692 (Jan. 5, 2004) (reaching a similar conclusion based on the

purpose of Washington’s abortion statute).

Thus, to the extent that allowing trained and licensed nurse

practitioners, certified nurse midwives, and physician assistants to

provide medication abortions is just as safe as allowing physicians

to do so, reading HG § 20-208 as limited to surgical abortions is

more consistent with the purposes behind both the physicians-only

requirement and the 1991 abortion statute as a whole. See Board

of Examiners in Optometry v. Spitz, 300 Md. 466 (1984) (finding

that opticians could fit contact lenses because there was no

evidence that it would thwart the purpose of the optometry statute

by exposing the public to harm). And as we understand the medical

consensus, there is no reason why nurse practitioners, certified

nurse midwives, and physician assistants—if they are trained and

are acting within their respective scopes of practice—would not be

able to provide the drugs for a medication abortion safely. See,

e.g., Nat’l Academies of Sciences, The Safety and Quality of

Abortion Care in the United States at 14; Am. Pub. Health Ass’n,

Provision of Abortion Care by Advanced Practice Nurses and

Physician Assistants (Nov. 1, 2011). That is particularly true now

that the FDA has updated its REMS for mifepristone to authorize

any “healthcare provider who prescribes” to become a certified

prescriber, reflecting the consensus that other providers may safely

prescribe the drug. FDA, Mifeprex (Mifepristone) Information

(Feb. 5, 2018).

What is more, reading HG § 20-208 as applying only to

surgical abortions would not leave medication abortions

unregulated, nor would it permit unqualified individuals to provide

drugs to terminate a pregnancy. Instead, there are other provisions

of law that protect the health and safety of women in this context.

For example, § 14-601 of the Health Occupations Article, which

prohibits the unauthorized practice of medicine, would prevent

anyone from providing drugs to terminate a pregnancy without the

authority to do so under the Health Occupations Article. See HO §

14-101(o) (including the “[e]nding of a human pregnancy” as part

of the practice of medicine). And as for those practitioners who

have prescription authority under the Health Occupations Article,

each professional licensing board, such as the Board of Nursing or

the Board of Physicians, has the authority to regulate the health

care practitioners within its jurisdiction. Those boards can thus

ensure that only qualified and trained health care practitioners,

acting within their scope of practice, can prescribe, dispense, or

administer drugs for a medication abortion. The boards would also

Gen. 3] 21

be able to punish any practitioners who fail to adhere to the relevant

standards of care in providing those services. See, e.g., HO §§ 8-

316(a)(6), 8-508(a)(2), 8-602, 14-205, 15-314.

Our conclusion that HG § 20-208 likely does not apply to

medication abortions is further supported by the canon of

constitutional avoidance. Under that canon, “if a legislative act is

susceptible of two reasonable interpretations, one of which would

not involve a decision as to the constitutionality of the act while the

other would, the construction which avoids the determination of

constitutionality is to be preferred.” Heileman Brewing v. Stroh

Brewery, 308 Md. 746, 763 (1987) (internal quotation omitted).

Here, if a court were to interpret HG § 20-208 to apply to

medication abortions, that could raise a constitutional question

about whether the statute imposes an undue burden on a woman’s

right to choose by creating barriers to abortion access without

sufficient health or safety grounds.

Indeed, in determining whether there is an undue burden, the

Supreme Court has recently explained that courts must “consider

the burdens a law imposes on abortion access together with the

benefits those laws confer.” Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292, 2309 (2016). The Court there invalidated two

abortion restrictions in Texas—one requiring abortion practitioners

to have admitting privileges at a hospital and the other requiring

abortion facilities to meet minimum standards for ambulatory

surgical centers—based on the record evidence that those

restrictions offered little or no health benefits and imposed

significant burdens on abortion access. In doing so, the Court

reasoned that there was a lack of evidence that the first requirement

furthered any discernable health benefit and that, according to the

record, the requirement would lead to the closure of half of the

abortion clinics in the state, thus presenting a “substantial obstacle

in the path of a woman’s choice.” Id. at 2311-12. Similarly, as to

the second requirement, the Court noted that it had “such a

tangential relationship to patient safety in the context of abortion

as to be nearly arbitrary” and that it would have further reduced the

number of abortion clinics. Id. at 2316 (quoting the trial court).

Although it is not clear that extending Maryland’s physicians-only

requirement to apply to medication abortions would in fact create

the same type of “substantial obstacle” to abortion access in

Maryland as existed in Texas, it would at the very least raise a

significant constitutional question in light of the medical consensus

that trained and licensed nurse practitioners, certified nurse

midwives, and physician assistants can safely provide medication

22 [105 Op. Att’y

abortions. And the canon of constitutional avoidance would

counsel in favor of the interpretation of the statute that avoids that

question, i.e., that HG § 20-208 does not apply to medication

abortions.

Our conclusion is also consistent with the conclusions of most

other state attorneys general to encounter similar questions under

their states’ abortion statutes. Those attorneys general have

typically interpreted statutes like Maryland’s to permit non-

physician health care practitioners to provide medication abortions

when those practitioners can prescribe and provide to the patient

the necessary drugs under their respective licensing statutes. See,

e.g., Wash. Op. Att’y Gen. No. 2004-1 (concluding that physicians-

only requirement did not apply to medication abortions because

subsequent legislation authorized new health care practitioners to

prescribe drugs); Conn. Op. Att’y Gen. No. 2001-015 (concluding

that physicians-only requirement applied only to performance of

surgical procedures and that certain non-physicians could thus

prescribe and dispense mifepristone to the extent allowed by the

FDA); Letter from Jennifer K. Brown, Director of Reproductive

Rights Unit, Office of the New York Attorney General, to Donna

Lieberman, New York Civil Liberties Union (June 29, 2001)

(concluding that physicians-only requirement was not intended to

prevent licensed, qualified health care practitioners from providing

safe abortion services and thus that certain non-physicians could

provide medication abortions under the supervision of a physician);

see also Illinois Op. Att’y Gen. No. 09-002, 2009 WL 596125

(Mar. 5, 2009) (concluding that, although its physicians-only

statute applied to medication abortions, it permitted certain non-

physicians to dispense mifepristone under the supervision of a

physician). 11

11

When state attorneys general have reached different conclusions, it

was because of express language in those states’ physicians-only statutes

that clearly applied to prescription drugs. For example, the California

Attorney General concluded, before mifepristone was even available in

the United States, that only a physician could perform an abortion and

that, although the question asked was about who could perform a

“surgical” abortion, California law did not differentiate among abortion

methods and that, therefore, the “answer [did] not depend on” the precise

method of the abortion. Cal. Op. Att’y Gen. No. 90-926, 1991 WL

495463 (June 25, 1991). At the time, however, California law expressly

criminalized abortion by “any medicine, drug, or substance” and “any

instrument or other means whatever,” except by a physician. Id.

Similarly, the Ohio Attorney General concluded, after mifepristone

became available, that nurses could not administer drugs to terminate a

Gen. 3] 23

The only thing that gives us pause is that there are two other

provisions of the abortion statute that use the word “abortion” in

conjunction with the word “perform” but that could be read to

apply to medication abortions. See Vest v. Giant Food Stores, Inc.,

329 Md. 461, 466-67 (1993) (explaining that a statute “must be

examined as a whole and the interrelationship or connection among

all its provisions are considered”).

The first of those provisions states that a physician is not

liable for civil damages or subject to a criminal penalty for the

“decision” to “perform an abortion.” HG § 20-209(d). As noted

above, our Office has previously questioned the practical effect of

this provision because it applies only to the decision to perform an

abortion, not the actual performance of the abortion, and seems to

grant immunity only in cases when the physician likely could not

be found liable in any event, given that, for immunity to attach, the

decision must be made “in accordance with accepted standards of

medical practice”—a requirement similar to the ordinary standard

of care that applies to malpractice claims. Bill Review Letter for

S.B. 162 at n.3 (Feb. 18, 1991) (quoting HG § 20-209(d)); see also

footnote 3, supra. Whatever the practical effect of this provision,

however, it is at least possible that the General Assembly intended

the immunity to extend to a physician’s decision to terminate a

pregnancy, regardless of the method used.

The second provision states that a physician may not “perform

an abortion” on an unmarried minor without providing notice to a

parent or guardian unless an exception to that parental-notification

requirement applies. HG § 20-103. Here, again, the General

Assembly may have intended this provision to apply to any method

of terminating a pregnancy, rather than just a surgical abortion.

That is because a core purpose of the parental-notification

requirement, according to its legislative history, was to ensure that,

with certain exceptions, parents are aware when their child is

confronted with a decision about whether to terminate a pregnancy

pregnancy. See Ohio Op. Att’y Gen. No. 2005-012, 2005 WL 797074

(March 31, 2005). But there a statute expressly authorized the Board of

Nursing to impose disciplinary sanctions on a nurse for “prescribing any

drug or device to perform or induce an abortion, or otherwise performing

or inducing an abortion.” Id. By contrast, Maryland’s abortion statute—

which was narrowed in 1991 to remove the prior language that had

criminalized the use of drugs to cause or induce the termination of

pregnancy—says none of these things.

24 [105 Op. Att’y

so that the parents can help to counsel the child about that

decision—a purpose that would apply equally regardless of the

method of abortion. See Statement to the Committee on

Environmental Matters by Delegate Leo Green on H.B. 1297, 1977

Leg., Reg. Sess. (Mar. 9, 1977) (explaining, as the sponsor of the

bill, that the legislation would allow parents to “fulfill one of [their]

responsibilities,” i.e., “that of counselling [their children] when

[they have] a problem” and that the bill “would put the

responsibility and privilege of helping these children back where it

belongs—in the family”). 12

If those two provisions are, in fact, best read to apply to

medication abortions, that could suggest that HG § 20-208 should

be read the same way, because courts will generally presume that

the same words used in different parts of the same statutory scheme

have the same meaning, unless “it is apparent . . . that they were

employed in different parts with a different intent.” Whack v. State,

338 Md. 665, 673 (1995); see also National Corp. for Housing

Partnership v. Keller, §, 185 (1999) (stating that “where the same

language is used in different clauses of the constitution or statute,

upon the same or similar subjects, it must receive the same

construction, unless some particular reason to the contrary can be

signed” (internal quotation and alteration omitted)). But ultimately,

although it is beyond the scope of this opinion to offer a definitive

interpretation of those two provisions—about which you did not

ask—it is our view that neither provision dictates an interpretation

that the physicians-only requirement in HG § 20-208 must extend

to medication abortions.

Starting with the immunity provision in HG § 20-209(d), we

think a court might well interpret that provision, like HG § 20-208,

12

Delegate Green also mentioned in his testimony that a hospital

would not admit a minor “for a tonsillectomy without the signature of a

parent” and that “having an abortion is a far more serious operation.”

That reference to abortion as an “operation” could suggest that another

purpose of the provision was to ensure that parents are informed before

their children undergo a surgical procedure. But it seems unlikely that

the surgical nature of an abortion was the sole reason that led the

Legislature to believe that parental involvement was important in this

context. After all, there is no requirement that parents be notified before

a minor child undergoes a caesarian section, which is also a surgical

procedure. See HG § 20-102 (providing that there is no requirement for

a health care practitioner to notify parents about treatment related to

“pregnancy,” except for information about an abortion, when notice is

generally required unless one of the grounds for bypass applies).

Gen. 3] 25

not to apply to medication abortions because the provision’s

purpose seems to be to immunize physicians for decisions under

the abortion statute that are unlikely to be relevant to medication

abortions. More specifically, when HG § 20-209(d) grants a

physician immunity as to the “decision” to perform an abortion

“under this section” made “in the physician’s best medical

judgment,” it is most likely referring to a decision about whether

the fetus is “viable,” which an earlier part of the same section

expressly requires a physician to make in his or her “best medical

judgment.” HG § 20-209(a). Reading those two parts of the

section together, the Legislature apparently wanted the physician

to be immune for the “decision” to perform an abortion primarily

because it felt that “the decision [as to viability] is in that doctor’s

medical opinion . . . not in the opinion of the medical community.”

Senate Floor Debate, S.B. 162, 1991 Leg., Reg. Sess.

In other words, the primary purpose of the immunity

provision seems to be to protect a physician when the physician’s

decision as to viability would dictate whether a particular abortion

is subject to any limitations that might exist under State law and

that could, by extension, expose the physician to liability if the

physician makes the “decision” to perform that abortion. 13

Medication abortions, however, are only available through 10

weeks of gestation—well before a fetus is likely to be considered

viable, at least under current standards of medical practice. See

Rysavy, Li, Bell, Das et al., “Between-Hospital Variation in

Treatment and Outcomes in Extremely Preterm Infants,” N. Engl.

J. Med. 2015, 372:1801-1811, https://www.nejm.org/doi/full/

10.1056/NEJMoa1410689. Thus, reading the immunity provision

not to apply to medication abortions would not seem to conflict

13

In addition to defining viability, § 20-209 provides that the State

may not interfere with the decision of a woman to terminate a pregnancy

after viability if (1) the termination procedure is necessary to protect the

life or health of the woman or (2) the fetus is affected by genetic defect

or serious deformity or abnormality. HG § 20-209(b)(2). Determining

whether one of those conditions exists presumably requires a physician

to exercise his or her medical judgment, and the Legislature may have

intended the physician to be immune from liability for challenges based

on those decisions as well. But, assuming that is the case, these

judgments only become relevant to whether abortion is permissible

under the statute if the physician has first decided that the fetus is viable

because, before viability, the State may not interfere with a woman’s

decision to terminate her pregnancy. See HG § 20-209(b)(1).

26 [105 Op. Att’y

with that provision’s primary purpose, although legislative

clarification could be necessary if the standards of medical practice

evolve such that medication abortions become available later in

pregnancy. 14 At the very least, the immunity provision is not so

clear as to dictate that the physicians-only provision must be read

to apply to medication abortions.

The parental-notification provision in HG § 20-103, however,

may be more difficult to reconcile with our reading of HG § 20-

208. Because a core purpose of the parental-notification provision

is to ensure that parents can help their children decide whether to

terminate a pregnancy (unless one of the express exceptions to

notice applies), interpreting that provision to apply only to surgical

abortions would seem to frustrate one of its key purposes—the

same type of result we sought to avoid by interpreting HG § 20-

208 not to apply to medication abortions. To give effect to the

purposes of both the parental-notification and the physicians-only

provisions, one possibility would be to interpret “perform an

abortion” in HG § 20-103 differently from the similar phrase “an

abortion must be performed” in HG § 20-208. As the Court of

Appeals has explained, even when two statutes use the same words,

those words can have different meanings if the purposes behind the

two statutes are different. See, e.g., Whack, 338 Md. at 674

(recognizing that “the meaning of the word ‘convicted’ varies

depending upon the context and purpose of the particular statute in

which it appears”); Moore v. State, 424 Md. 118, 139-40 (2011)

(recognizing that a weapon did not have to be operable to come

within the definition of “firearm” in one statute even if operability

was required in another statute with “an altogether different

objective”). That seems to be the case here. Whereas the purpose

of the physicians-only provision is to protect the health and safety

of women seeking abortions, the parental-notification provision

reflects an entirely different purpose based more on the result of

the abortion—the termination of a pregnancy—than on the precise

means used to terminate the pregnancy. Given those divergent

purposes, even if a court were to interpret the phrase “perform an

abortion” in the parental-notification provision to apply to

14

To be clear, even if the immunity provision does not apply to

medication abortions, a physician or other health care practitioner who

is providing a medication abortion presumably would not be liable under

ordinary principles of tort law for any conduct in connection with that

abortion (including, most likely, the “decision” to perform the abortion)

unless the practitioner fails to adhere to the applicable standard of care,

a protection that seems to be largely the same as, if not identical to, the

protection that would be offered by the immunity provision. See Bill

Review Letter for S.B. 162 at n.3 (1991).

Gen. 3] 27

medication abortions, the physicians-only provision would not

necessarily have to be interpreted the same way.

We recognize, though, that interpreting the phrase “perform

an abortion” in the parental-notification provision differently from

“an abortion must be performed” in the physicians-only provision

could cause some practical complications. More specifically,

because the parental-notification requirement applies only to a

“physician”—a term that is expressly defined to mean “an

individual who is authorized under the Maryland Medical Practice

Act to practice medicine in this State,” HG § 1-101(j)—it might not

apply to other health care practitioners, even if those practitioners

could provide a medication abortion under our interpretation of HG

§ 20-208. In other words, if the physicians-only provision is read

to apply only to surgical abortions but the parental-notification

provision is read to extend to medication abortions, a physician

who is providing a medication abortion would have to follow the

parental-notification provision in HG § 20-103, but a nurse

practitioner, certified nurse midwife, or physician assistant might

not. That differential treatment seems like a result the Legislature

would not have intended.

In trying to resolve that complication and reconcile these

provisions, a court would be left with three options, none of which

is perfect. First, a court could interpret both provisions to apply to

all methods of terminating a pregnancy, including both surgical and

medication abortions. That would avoid the complication

discussed above because only physicians would be able to provide

medication abortions and, thus, it would make sense that only

physicians would be required to follow the parental-notification

provision before doing so. But such an interpretation would be

inconsistent with the legislative history of HG § 20-208 and the

apparent purposes of HG §§ 20-208 and 20-209 because it would

erect barriers unrelated to health and safety for women to access a

new method of terminating a pregnancy not contemplated at the

time, even though that method can be provided safely by qualified

nurse practitioners, certified nurse midwives, and physician

assistants.

Second, a court could interpret both provisions to apply only

to surgical abortions. That would again avoid complications

because, although physicians and certain non-physicians would

both be able to provide medication abortions, none of them would

be required to follow the procedures in the parental-notification

provision before doing so. But, just as the first option would be

28 [105 Op. Att’y

inconsistent with the purposes of HG §§ 20-208 and 20-209, such

an interpretation would frustrate a core purpose of the parental-

notification provision in HG § 20-103 by potentially leaving

parents unable to counsel their children about a medication

abortion.

Third, a court could read the physicians-only provision to

apply only to surgical abortions, while interpreting the parental-

notification provision both to apply to medication abortions and to

require that all health care practitioners comply with the

provision’s parental-notification procedures, even if the

practitioners are not technically “physicians” as defined by the

statute. That reading would be more consistent with the purposes

of both the physicians-only and parental-notification provisions,

but it would require reading a defined term—“physician”—

differently from its statutory definition. Still, despite that further

complication, it remains possible that a court would take this third

approach. Although statutory definitions will almost always

control the meaning of a defined term, see, e.g., Bryant v. State,

393 Md. 196, 202 (2006), there are sometimes “unusual”

circumstances when the statutory definition should not be applied

so mechanically, such as when doing so would “create obvious

incongruities in the language” and “destroy one of the major

purposes” of the statute. Lawson v. Suwannee Fruit & S.S. Co.,

336 U.S. 198, 201 (1949); see 2A Norman J. Singer & Shambie

Singer, Sutherland Statutory Construction § 47:7 (7th ed. 2014)

(explaining the role of definition provisions); see also Smith v.

State, 425 Md. 292, 299 (2012) (explaining that “results that are

unreasonable, illogical, or inconsistent with common sense should

be avoided with the real legislative intention prevailing over the

intention indicated by the literal meaning” (citation and internal

quotation omitted)).

Here, assuming that certain non-physicians can prescribe and

provide to a patient the necessary drugs for medication abortions

under the physicians-only statute, a mechanical application of the

definition of “physician” to HG § 20-103 would not only threaten

to destroy a core purpose of the parental-notification provision but

would also “create obvious incongruities” with another provision

that sets forth the general rule for providing notice to a parent about

their child’s pregnancy-related treatment. See HG § 20-102. Under

that general provision, a “licensed health care practitioner may, but

need not, give a parent, guardian, or custodian of [a] minor or the

spouse of the parent information” about treatment involving the

minor’s pregnancy, “except information about an abortion,” HG

§ 20-102(f) (emphasis added), which is instead governed by the

Gen. 3] 29

parental-notification provision in HG § 20-103. Because the

general provision in § 20-102(f) applies to any “licensed health

care practitioner,” not just a physician, it would necessarily apply

to a nurse practitioner, certified nurse midwife, or physician

assistant who prescribes drugs for a medication abortion. And that

provision’s notification requirements include an express exception

for “information about an abortion,” in recognition of the fact that

parental notification about an abortion is instead governed by HG

§ 20-103. See 1977 Md. Laws, ch. 961 (amending what is now HG

§ 20-102(f) to provide an exception for “information about an

abortion” at the same time that the parental-notification provision

in what is now HG § 20-103 was first enacted). 15 Thus, to avoid

incongruities in the statutory scheme, HG § 20-102(f) could be read

to suggest that, whenever “information about an abortion” is

involved, any “licensed health care practitioner” must comply with

the parental-notification provision in HG § 20-103, even though

that provision—at least on its face—applies only to a “physician.”

Of course, none of these three possible solutions is perfect,

and we cannot say for sure how a court would reconcile the relevant

provisions of the abortion statute. But we do not believe that a

court would read the physicians-only statute to prohibit trained and

licensed nurse practitioners, certified nurse midwives, and

physician assistants who can safely provide medication abortions

from doing so merely because the parental-notification statute,

which was first enacted at a different time and has an entirely

different purpose, may be best read to apply to medication

abortions. In a situation like this one, when we are confronted with

post-enactment changes in the world that the General Assembly

may not have foreseen and did not seem to contemplate, we cannot

always expect that the pieces of the statutory scheme will fit

together like a jigsaw puzzle. And as to the particular piece of the

scheme about which you asked—the physicians-only provision in

HG § 20-208—the legislative history, the historical context, the

legislative purpose, and the canon of constitutional avoidance all

15

Because we are assuming under this third option for reconciling

the physicians-only and parental-notification provisions that “abortion”

in the parental-notification provision includes a medication abortion, we

logically have to assume that the word “abortion” in HG § 20-102(f) does

as well, given that HG §§ 20-102(f) and 20-103 are linked together. In

any event, we note that the word “abortion” in HG § 20-102(f) is not

used in conjunction with the word “perform” and may be more naturally

read in this provision of the statute than some of the others to refer to all

methods of terminating a pregnancy.

30 [105 Op. Att’y

suggest that the Legislature intended that provision to apply only

to surgical abortions. Thus, regardless of how the parental-

notification provision (and the immunity provision) might be

interpreted, it is our opinion that the physicians-only provision in

HG § 20-208, though ambiguous, is best read not to apply to

medication abortions.

To be clear, our conclusion does not mean that all nurse

practitioners, certified nurse midwives, and physician assistants

will necessarily be able to prescribe, dispense, or administer drugs

for a medication abortion under all circumstances. We conclude

only that the physicians-only requirement in HG § 20-208 does not

categorically prohibit these non-physicians from providing the

drugs for medication abortions when they are otherwise acting

within their scope of practice. To be able to prescribe, dispense, or

administer the drugs necessary for a medication abortion, these

non-physicians must of course comply with any requirements

within their respective licensing statutes and any applicable REMS

established by the FDA. See Parts I.B and I.C, supra. We leave

any unresolved questions about the scope of practice for these

professionals to be resolved by the Board of Nursing and Board of

Physicians, as appropriate.

B. Surgical Abortions

Your second question is whether HG § 20-208 prohibits a

physician assistant from performing a surgical abortion under a

delegation agreement with a supervising physician. We do not

understand your question to be whether a physician may delegate

certain tasks to a physician assistant during a surgical abortion in

which the physician is personally involved. We instead understand

you to be asking whether a physician may, in effect, “perform” a

surgical abortion under HG § 20-208 by delegating the procedure—

in its entirety—to a physician assistant. Your question, then, is

essentially whether the requirement that “[a]n abortion must be

performed by a licensed physician” in HG § 20-208 makes

performing a surgical abortion a non-delegable act.

Although the language of HG § 20-208 is ambiguous as

applied to medication abortions, there is no ambiguity that surgical

abortions “must be performed by a licensed physician.” The word

“physician” is specifically defined for purposes of this provision to

“mean[]” only a “person, including a doctor of osteopathy, licensed

to practice medicine in the State of Maryland in compliance with

the provisions of Title 14 of the Health Occupations Article.” HG

§ 20-207; see also Tribbitt v. State, 403 Md. 638, 647-48 (2008)

Gen. 3] 31

(noting that “when statutory drafters use the term ‘means,’” they

generally “intend the definition to be exhaustive”); COMAR

10.12.01.01B(4) (defining “physician” for purposes of the State’s

regulations governing surgical abortion facilities as “an individual

licensed to practice medicine in this State under Health

Occupations Article, Title 14, Annotated Code of Maryland”).

And that definition, by its express terms, does not include a

physician assistant. Although physician assistants are “licensed . . .

to practice medicine with physician supervision,” HO § 15-101(o)

(emphasis added), they are not themselves “physicians”—they

must instead practice under the supervision of one—and they are

not licensed “in compliance with the provisions of Title 14 of the

Health Occupations Article,” HG § 20-207, but rather in

compliance with the separate provisions in Title 15 of that

Article. 16 In other words, the plain language of HG § 20-208

requires that a licensed physician, as defined, must perform a

surgical abortion and makes no exception to that requirement for a

physician assistant.

Nor do we think that a physician can “perform” a surgical

abortion by having someone else do the surgery. Although

“perform” can have more than one meaning, under any definition

of the term, a physician only “performs” the procedure if the

physician is actually involved in doing it. See, e.g., MacMillan

Dictionary 748 (1987) (defining “perform” as “to begin and carry

out to completion”); The Random House Dictionary of the English

Language 1439 (1987) (defining “perform” as “carry out; execute;

do; . . . fulfill; . . . complete”). To be sure, a physician assistant is

an “agent of the . . . supervising physician in the performance of all

16

While Title 14 “does not limit the right of . . . [a]n individual to

practice a health occupation that the individual is authorize to practice,”

HO § 14-102, neither does it convert an individual into a “physician”

simply because that individual is authorized under a different title to

perform acts that constitute the practice of medicine. In other words, the

function of HO § 14-102 is to ensure that individuals practicing other

health occupations are not deemed to be unlawfully practicing medicine

without a license, see HO § 14-601, rather than to change the

longstanding definition of “physician.” See 1970 Md. Laws, ch. 736

(defining physician to include “person[s], including Doctors of

Osteopathy, licensed to practice medicine in the State of Maryland in

compliance with the provisions of this subtitle” but expressly providing

that that the practice of medicine did not include “[p]racticing any

profession otherwise registered, certified, or licensed and defined by

law”).

32 [105 Op. Att’y

practice-related activities,” HO § 15-301(e), and the supervising

physician must agree in the delegation agreement to accept

“responsibility for any care given by the physician assistant,” HO

§ 15-302(b)(7). But that agency relationship does not convert a

physician assistant into a “physician” as defined by the statute. See

Restatement (Third) of Agency § 1.01 cmt. c (2006) (“Despite their

agency relationship, a principal and an agent retain separate legal

personalities.”); see also Dingle v. Belin, 358 Md. 354 (2000)

(concluding that patient stated a breach of contract claim when a

resident physician “performed” the surgery instead of the surgeon

who had been named on the consent form, even though the surgeon

had delegated those duties to the resident). Just because a physician

is responsible for the acts of a physician assistant does not mean

that the physician has “performed” those acts; the physician

assistant is still the one who has performed them. 17 In our opinion,

therefore, a Maryland court would not conclude that a physician

has “performed” an abortion under HG § 20-208 by delegating the

procedure to a physician assistant.

In fact, the general rule under Maryland law seems to be that,

when a statute outside of Title 14 of the Health Occupations Article

provides that a physician is to perform a particular task, the

physician may not delegate that task to a physician assistant. See

Rideout, 149 Md. App. at 657-58; see also 80 Opinions of the

Attorney General 173 (1995) (concluding, albeit in a somewhat

different context, that physicians could not delegate the task of

dispensing drugs in its entirety to a physician assistant); 44

Opinions of the Attorney General 300 (1959) (same with respect to

17

Although the Illinois Attorney General has concluded that a statute

requiring abortions to be “performed” by physicians did not prohibit

physicians in that state from delegating the task of dispensing drugs for

a medication abortion to physician assistants, it appears that a physician

would still have been involved in the process of providing the abortion

in some way by ordering or prescribing the mifepristone for the patient.

See Illinois Op. Att’y Gen. No. 18-001, 2018 WL 5930979 (Aug. 21,

2018); Illinois Op. Att’y Gen. No. 09-002, 2009 WL 596125 (Mar. 5,

2009). In that context, it makes sense to conclude that a physician can

delegate part of the process to a physician assistant. Cf. 100 Opinions of

the Attorney General 85, 97-98 (2015) (explaining that it can be

permissible to delegate certain tasks related to the dispensing of drugs,

even when delegation of the process in its entirety would be

impermissible). But that does not mean that a physician may “perform”

a surgical abortion by delegating the procedure in its entirety to a

physician assistant.

Gen. 3] 33

nurses). 18 In Rideout, the Court of Special Appeals analyzed a

provision in the State Personnel and Pensions Article that entitled

State employees to accident leave if “a physician examines the

employee and certifies that the employee is disabled because of the

injury.” 149 Md. App. at 657. The Court held that, because the

statute specifically required the tasks at issue to be performed by a

“physician,” the physician could not delegate those tasks to a

physician assistant, and the State could not rely on an examination

by a physician assistant to determine the employee’s entitlement to

accident leave. Id. at 657-58. Although the Court recognized that

physicians may generally delegate medical acts (including patient

examinations) to physician assistants, the Court reasoned that

physician assistants are not themselves physicians and that “the

delegated performance of such acts by an assistant does not negate

the plain language of [the accident-leave statute] that a physician

examine an employee.” Id. at 658. Applying the same reasoning

here, the general authority of physician assistants to perform

delegated medical acts does not negate the plain language of HG

§ 20-208 that a surgical abortion must be “performed” by a

“licensed physician,” as defined by HG § 20-207. 19

We recognize, of course, that recent studies have concluded

that physician assistants—and nurse practitioners and certified

nurse midwives too, for that matter—can perform certain types of

surgical abortions safely and effectively, if they have been trained

on how to do so. See Nat’l Academies of Sciences, The Safety and

Quality of Abortion Care in the United States at 14; Am. Pub.

Health Ass’n, Provision of Abortion Care by Advanced Practice

Nurses and Physician Assistants (Nov. 1, 2011). In that respect,

there may be an argument that the physicians-only provision is no

18

After our Office issued these two opinions, the General Assembly

amended the law, and now nurse practitioners, certified nurse midwives,

and physician assistants have authority under their respective licensing

statutes to dispense drugs subject to certain conditions. See HO §§ 8-

508, 8-601, 15-302.2.

19

Indeed, when other provisions outside of Title 14 of the Health

Occupations Article required a “physician” to perform a certain task, the

Legislature has found it necessary to amend those provisions to authorize

non-physicians to perform the same tasks. See 2008 Md. Laws, ch. 233

(authorizing nurse practitioners to complete birth and death certificates,

emergency medical services “do not resuscitate orders,” and advance

directives); 2013 Md. Laws, ch. 274 (authorizing physician assistants to

do the same).

34 [105 Op. Att’y

longer strictly necessary to fulfill its original purpose to protect the

health and safety of women seeking abortions. See Letter from the

ACLU of Maryland, Planned Parenthood of Maryland, NARAL

Pro-Choice Maryland, and Women’s Law Center of Maryland to

Patrick B. Hughes, Chief Counsel for Opinions & Advice (Nov. 12,

2019). 20

But we are not at liberty to simply read the provision out of

the Maryland Code. See Bey, 452 Md. at 265 (explaining that

courts will neither “add nor delete language so as to reflect an intent

not evidenced in the plain and unambiguous language of the

statute” and will not “construe a statute with forced or subtle

interpretations that limit or extend its application” (internal

quotation omitted)). Instead, a court would likely presume that HG

§ 20-208 continues to mean something. See, e.g., State v. Pagano,

341 Md. 129, 134 (1996) (reiterating that statutes must be read “so

that no word, clause, sentence or phrase is rendered surplusage,

superfluous, meaningless, or nugatory” (internal quotation

omitted)). And if that provision means anything, it is that only

licensed physicians may perform surgical abortions. In fact, if the

provision had been intended to prohibit non-physicians from

performing surgical abortions only when they would not otherwise

have been qualified to do so under the Health Occupations Article,

then the provision might have been superfluous when enacted,

because the Health Occupations Article already provided then (as

it does today) that non-physicians may not perform an act that

constitutes the practice of medicine—including the “[e]nding of a

human pregnancy,” HO § 14-101 (1991 Repl. Vol.)—unless they

have authority to perform that act as part of the practice of a health

occupation under that Article. See HO §§ 14-102(a), 14-601 (1991

Rep. Vol.).

To be sure, our reading of HG § 20-208 as applied to surgical

abortions may be somewhat in tension with the broader purpose of

the 1991 abortion statute, which was to protect access to safe

abortions, not to erect barriers unrelated to health or safety. The

broader abortion statute, after all, provides that “[e]xcept as

otherwise provided in this subtitle, the State may not interfere with

the decision of a woman to terminate a pregnancy” before the fetus

is viable, HG § 20-209(b), and that the Maryland Department of

20

These groups submitted comments to our Office about this opinion

request in accordance with our ordinary practice to post pending opinion

requests on our website and accept comments on those requests from any

interested parties.

Gen. 3] 35

Health may only adopt regulations governing abortion that are

“both necessary and the least intrusive method to protect the life or

health of the woman” and “not inconsistent with established

medical practice.” HG § 20-209(c). 21 Although that broader

purpose could suggest that the General Assembly wanted the

physicians-only statute to evolve with changes in Maryland

medical practice to allow non-physician professionals to perform

surgical abortions if and when they became qualified to perform

surgeries under other laws, the statutory definition of physician

here is not phrased in the type of “broad general terms” that the

Court of Appeals has said may “be capable of encompassing

circumstances and situations which did not exist at the time of its

enactment.” Kindley, 289 Md. at 625. To the contrary, the

definition of “physician,” given how narrow and specific it is,

suggests that the term’s meaning was not intended to evolve with

changes in the scopes of practice of other health care practitioners.

Although courts may, under unusual circumstances, read a

statutorily defined term to mean something other than how it is

defined, see supra at 28, we doubt that this would be one of those

circumstances. In contrast to the parental-notification statute

discussed above, which defined “physician” only by reference to

the general definition of the term that applies to the entire Health-

General Article, see HG § 1-101(j), the term “physician” for

purposes of the physicians-only requirement is specifically defined

in a separate provision that applies only to HG §§ 20-208 and 20-

209. Given that the Legislature paid special attention to the

meaning of “physician” in this particular provision, a court is even

more likely than usual to find that the Legislature meant what it

said in defining the term. What is more, unlike with the parental-

notification statute, reading “physician” in line with its statutory

definition here does not appear to create any “obvious incongruities

in the language” of the statutory scheme. Lawson, 336 U.S. at 201.

21

To clarify, we do not think that there is any direct conflict between

the language of these provisions in HG § 20-209 and the language of HG

§ 20-208. Although § 20-209(c) provides that Department of Health

regulations must be “necessary and the least intrusive method to protect

the life or health of the woman,” the physicians-only requirement in HG

§ 20-208 is, of course, not a Department of Health regulation. And § 20-

209(b) provides that, “except as otherwise provided in this subtitle”

(which would include the physicians-only requirement in HG § 20-208),

the State “may not interfere with the decision of a woman to terminate a

pregnancy” under specified conditions. HG § 20-209(b) (emphasis

added).

36 [105 Op. Att’y

Ultimately, given the plain language of HG § 20-208 and the

decision in Rideout finding that the similarly plain language there

was dispositive, we think a Maryland court is unlikely to ignore the

plain language here and substitute its own view about what the

Legislature may have meant. See Borchardt v. State, 367 Md. 91,

129 (2001) (explaining that it is not the “function” of the courts to

“substitut[e]” their “judgment of what the law ought to be for what

the Legislature has said it is” (emphasis in original)). Although the

plain meaning rule is “not absolute,” Fikar v. Montgomery County,

333 Md. 430, 434 (1994) (internal quotation omitted), and a court

thus may read the language of a statute—even language that seems

at first blush to be clear—“in light of the Legislature’s general

purpose,” Frost v. State, 336 Md. 125, 138 (1994), that does not

give a court broad license to “rewrite a statute merely because of

some judicial notion of legislative purpose.” Guttman v. Wells

Fargo Bank, 421 Md. 227, 239 n.4 (2011) (quoting Kaczorowski,

309 Md. at 516 n.4).

It is one thing to rely on the apparent purpose of the 1991

abortion statute to conclude that the physicians-only requirement

does not extend to a new method of safely terminating a pregnancy

that the General Assembly did not foresee at the time when the

statute’s language as applied to that method is ambiguous; it is

quite another to ignore the unambiguous language of the statute as

applied to the precise method of abortion that the Legislature had

in mind when it enacted the statute. Put another way, the General

Assembly’s goal in enacting HG § 20-208 may have been to protect

the health and safety of women seeking abortions, but that does not

mean we can ignore the specific means by which the Legislature

chose to effectuate that goal—requiring that surgical abortions be

performed only by licensed physicians. If that requirement is now

broader than strictly necessary to serve the General Assembly’s

original goal, it is for the General Assembly to amend the statute.

For that reason, we do not believe that a Maryland court would read

HG § 20-208 to permit other health care practitioners to perform

surgical abortions, even if those practitioners might generally be

qualified to perform similar types of surgical procedures safely and

effectively. 22

22

Unlike with medication abortions, a Maryland court would be

unlikely to rely on the canon of constitutional avoidance to reach a

different outcome. Contra Wash. Op. Att’y Gen. No. 2019-1, 2019 WL

495734 (Feb. 1, 2019) (relying on the constitutional avoidance canon, at

least in part, to support a conclusion that physician assistants in

Washington may now perform surgical abortions). That is because, for

the canon of constitutional avoidance to apply, the statute at issue must

Gen. 3] 37

Nor, in our view, is a Maryland court likely to find that

statutory changes in 1999 that broadened the authority of physician

assistants, see 1999 Md. Laws, ch. 655, implicitly amended the

requirement in HG § 20-208 that physicians must perform surgical

abortions. Even assuming that those changes to the Health

Occupations Article authorized physician assistants to perform

surgical procedures that they would not have been authorized to

perform before—which is not entirely clear to us—Maryland

courts are loath to find that a later-enacted statute has implicitly

amended or repealed an earlier one. See, e.g., Bell v. State, 236

Md. 356, 367 (1964). Although the Washington Attorney General

relied on a similar argument in concluding that physician assistants

may now perform surgical abortions in that State, see Wash. Op.

Att’y Gen. No. 2019-1, 2019 WL 495734, such implied

amendments are “not favored” by the Maryland courts, which will

resort to finding them only “in cases of manifest repugnancy or

irreconcilable conflict” between the relevant statutes. Bell, 236

Md. at 367.

Instead, Maryland courts will first attempt to reconcile the

potentially conflicting provisions, often “by viewing the more

specific statute as an exception to the more general one.”

Government Employees Ins. Co. v. Insurance Comm’r, 332 Md.

124, 132-33 (1993). And here the physicians-only requirement in

HG § 20-208 is without question the more specific statute. It

be “susceptible to two interpretations,” Lamone v. Lewin, 460 Md. 450,

473 (2018), and the language of the statute here, at least as applied to

surgical abortions, is not. In any event, even if the canon were to apply,

it would be more difficult to make the argument here than in the context

of medication abortions because the Supreme Court has “repeated[ly]”

declared that a state may limit the performance of surgical abortions to

physicians. Mazurek v. Armstrong, 520 U.S. 968, 974 (1997) (citing

prior cases). And although some states have privacy protections broader

than those in the U.S. Constitution, see Armstrong v. State, 989 P.2d 364

(Mont. 1999) (concluding that a provision prohibiting physician

assistants from performing abortions was unconstitutional under

Montana’s Constitution), the Court of Special Appeals has held that

Maryland’s constitutional protections for the right to privacy are, at

most, in pari materia with the federal ones. Doe v. Department of Pub.

Safety & Corr. Servs., 185 Md. App. 625, 643 (2009); see also 74

Opinions of the Attorney General 19, 30-32 (1989) (concluding that, at

least based on the law as it existed at that time, Maryland’s Equal Rights

Amendment, though broader than the federal Equal Protection Clause,

would not prohibit laws restricting access to abortion).

38 [105 Op. Att’y

regulates who may perform surgical abortions in particular, while

the Health Occupations Article merely outlines the scope of

practice for physician assistants more generally. Thus, a Maryland

court would likely view HG § 20-208 as a limited exception to the

general authority of physician assistants to perform delegated

medical acts under the Health Occupations Article, not the other

way around. Accord Cal. Op. Att’y Gen. No. 90-926, 1991 WL

495463 (concluding that, despite the general authority of physician

assistants under California law to perform “any procedure”

consistent with the assistant’s training, the abortion statute was

“carefully crafted . . . to permit physicians, and physicians alone,

to perform abortions” and, therefore, refusing to “accept the notion

that the Legislature meant to gainsay [a] carefully tailored and

highly specific determination” about abortion with a general

determination about the scope of practice of physician assistants). 23

As a final point, although a Maryland court would likely read

the physicians-only requirement in HG § 20-208 to mean that

physician assistants may not perform surgical abortions, that does

not mean that a physician is prohibited from delegating certain

tasks to a physician assistant during the physician’s performance of

an abortion. Cf. 100 Opinions of the Attorney General at 97-98

(finding that physicians may delegate certain tasks related to the

dispensing of drugs, even though delegating the process in its

entirety would be impermissible); Illinois Op. Att’y Gen. No. 09-

002, 2009 WL 596125 (concluding that Illinois’s physicians-only

statute did not require physicians to “perform every aspect of

patient care” when delegation was authorized by State law). We

merely conclude that, under HG § 20-208, physician assistants

cannot be delegated the performance of a surgical abortion in its

entirety. 24

23

In 2013, California amended its law to specifically authorize

certain non-physicians, including physician assistants, to provide

medication and aspiration abortions. See Cal. Bus. & Prof. Code § 2253.

24

To be clear, even if HG § 20-208 did not make the performance of

surgical abortions a non-delegable act, that would not automatically

mean that physicians could delegate surgical abortions to a physician

assistant under the Health Occupations Article. Instead, the Board of

Physicians would first need to decide whether a surgical abortion

involves “advanced duties” and, if so, the physician assistant would need

to submit to the Board an application for approval of surgical abortion as

an “advanced dut[y].” HO § 15-302(c).

Gen. 3] 39

III

Conclusion

In our opinion, a Maryland court would likely conclude that

HG § 20-208 does not prohibit nurse practitioners, certified nurse

midwives, or physician assistants from providing medication

abortions but that the statute does prohibit a physician assistant

from performing a surgical abortion.

Brian E. Frosh

Attorney General of Maryland

Alan J. Dunklow

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice