3

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 
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-proceduresmedicalabortion/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-byadvanced-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 physiciansonly 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 nonphysician 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 physiciansonly 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 nonphysicians 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 HealthGeneral 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 parentalnotification 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