                           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
