Friday morning, an Alaska Supreme Court ruling in State of Alaska v Planned Parenthood of the Great Northwest closed the latest chapter – though likely far from the last – on regulations restricting Medicaid funding of abortions in Alaska. In a 4-1 decision, the Court held that both a law (SB49) and Department of Health and Social Services (DHSS) regulations adopted under Gov. Sean Parnell (R-Alaska) violated the Alaska Constitution’s guarantee of equal protection.

Abortions eligible for Medicaid reimbursement were restricted by state law to include only pregnant woman at risk of dying or women whose pregnancies resulted from rape or incest until court intervention in 2001. In 1998, two physicians and Planned Parenthood of Alaska filed suit, contending that such a restriction violated the Alaska Constitution’s Equal Protection clause (Article 1, Section 1). The case was State of Alaska Department of Health and Social Services v. Planned Parenthood of Alaska, Inc. (2001).

The Superior Court sided with the plaintiffs and against the state. The Alaska Supreme Court affirmed their decision, finding that the regulation’s denial of funding for “medically necessary abortions” was “a departure from ‘the Medicaid program’s purpose of granting uniform and high quality medical care to all needy persons of this state.’” Medicaid would pay for an abortion if it was deemed medically necessary, the Court said, “according to either the relevant Alaska Medicaid regulations or the ‘standards of practice applicable to the provider.’”

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“The State, having undertaken to provide health care for poor Alaskans, must adhere to neutral criteria in distributing that care,” Chief Justice Dana Fabe wrote in the 2001 Court ruling. “It may not deny medically necessary services to eligible individuals based on criteria unrelated to the purposes of the public health care program. Moreover, the DHSS regulation in this case discriminatorily burdens the exercise of a constitutional right.”

In 2013, Senator John Coghill (R-North Pole) introduced Senate Bill 49 as redress to the Planned Parenthood decision, amending state statute to list 22 specific life-endangering conditions that would substantiate the termination of a pregnancy as medically necessary and qualify the patient for Medicaid funding. The proposal came during a time when Republican lawmakers and pro-life organizations, nationwide, were accusing physicians of editorializing what “medically necessary” meant and alleging Medicaid fraud. By the end of 2014, 15 states had enacted 26 new restrictions, according to the Guttmacher Institute. (It was a year after Coghill followed another national trend of introducing legislation requiring women to undergo an ultrasound before the procedure. That effort failed.)

“Senate Bill 49 specifically brings clarity to the term ‘medically necessary abortion’ for the purposes of making payments under Medicaid,” Coghill said in his sponsor statement. “[T]he Alaska Supreme Court determined the state must pay for medically necessary abortions for participants in the Medicaid program. Since 2001, the term ‘medically necessary abortion’ has acquired a constitutional component of unknown scope. The relatively few Alaska cases involving abortion rights do not provide guidance as to how broadly the term ‘medically necessary abortion’ is to be construed. SB 49 answers that issue.” [emphasis in original]

“The Court specifically and deliberately referred to the ‘medically necessary’ nature of the abortions that it was addressing in the case on thirty-four (34) separate instances in its Opinion,” Kevin Clarkson – then an attorney with Brena, Bell & Clarkson and now attorney general in the Michael J. Dunleavy administration – wrote in a memo to the legislature. “[I]t would be truly remarkable for anyone to claim that the Alaska Supreme Court’s decision in Planned Parenthood requires the State to fund ‘elective’ abortions or abortions that are not ‘medically necessary.’”

SB49 passed the Senate 14-6 the same year it was introduced, but was held over in the House to be taken up again the following session. Parnell adopted similar language as DHSS policy in the interim, which went into effect that Fall. The new policy was different from SB49 in one notable way: one additional “impairment” was listed alongside the 22 authored by Coghill. It included as a “medically necessary” reason for an abortion: “a psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.” This was the lone non-physical condition included. It meant that if a physician felt a woman seeking an abortion was a threat to herself, the procedure could still be deemed medically necessary and qualify for Medicaid funding.

When the 28th Legislature gaveled back in in 2014, then-Rep. Cathy Muñoz (R-Juneau) tried to insert the new DHSS language including “a psychiatric disorder that places the woman in imminent danger” into the bill. Rep. Gabrielle LeDoux (R-Anchorage) objected.

“This is an elective procedure,” then-Rep. Shelley Hughes (R-Wasilla) argued against the amendment on the House floor. “The women I know in Alaska are not victims. They are brave, they are independent, and they are smart, and they are dignified…. We’re big girls, we can take care of ourselves.”

“Equal protection does not mean that the government pays,” Ledoux added. “We have a right to travel, but that doesn’t mean the government buys us a ticket to Paris.”

Rep. Geran Tarr disagreed and defended Muñoz’s amendment: “If [an abortion] is found to be medically necessary, you can only be sure that that woman is experiencing deep sadness about that outcome. We should not interfere with a private decision that belongs between a woman and her doctor and her support network and her spiritual adviser. And that’s what this bill does…. [I]t flies in the face of the equal protection of all women in Alaska.”

Tarr’s words would prove prescient, but the amendment was quashed by a narrow 19-21 vote. The House passed the bill, the Senate concurred, Parnell signed it into law, and the policy was set. Planned Parenthood of the Great Northwest immediately filed suit in Superior Court and was granted preliminary injunction preventing the regulations from being enforced. In 2015, those regulations were struck down by the same court on equal protection grounds.

Friday morning, the Alaska Supreme Court affirmed the lower court’s decision, again finding that the restrictions “impermissibly discriminated against indigent women seeking abortions” and violated the Alaska Constitution on equal protection grounds.

Citing Harris v McRae (1980), a U.S. Supreme Court case involving Hyde Amendment restrictions on Medicaid reimbursements for abortions, Alaska Supreme Court Justice Susan Carney referenced the dissenting opinion offered by U.S. Supreme Court Justice William Brennan as the logic underpinning the Alaska Court’s ruling: “the State burdens the exercise of a fundamental right for indigent people when it only subsidizes the inevitable alternative.”

Virtually all medical services for indigent Alaskan women who choose to give birth fall under Medicaid’s omnibus definition of “medically necessary” as something determined “by the standards of practice applicable to the provider.” Expectant mothers generally receive state funding automatically when a doctor submits the bill. Yet an indigent woman seeking state funding for an abortion under the new measures cannot obtain coverage unless a doctor certifies that her “abortion must be performed to avoid a threat of serious risk to [her] life or physical health.” This difference results in the coercive effect that troubled Justice Brennan: an indigent woman whose condition falls outside the new, abortion-specific definition of medical necessity will discover that she alone must pay for the medical costs associated with abortion — but if she chooses childbirth, the government will pay any bill that her doctor submits. Thus “the government, by selectively denying a benefit to those who exercise a constitutional right, effectively deters the exercise of that right.”

Further, the Court rejected the State’s claim that limiting the definition of “medically necessary” ensured the financial viability of the Medicaid program as a whole. Carney called attention to Coghill’s legislative staffer, Chad Hutchinson, who stated that SB49 was crafted and passed predicated on the “reasonable belief” that Medicaid had been paying for non-medically necessary abortions. She noted that the bill’s sponsor in the House, LeDoux, had characterized the legislation as a “fiscal bill.”

“But the legislative record contains no evidence that Medicaid had actually funded non-medically necessary abortions,” Carney wrote, adding that neither Coghill or SB49’s attached fiscal note could determine any associated costs the state would likely incur based on a lack of data. “We assume without deciding that the State may have a compelling interest in ensuring the financial viability of Medicaid, but even assuming so does not change the outcome in this case.”

“We conclude that the statute and regulation are not narrowly tailored to meet the ends of preserving Medicaid funds, and the state has not shown that the differences between the affected classes justify the discriminatory treatment imposed by [the affected state statutes],” the Court concluded.

Justice Craig Stowers dissented, finding, “The language of the statute and regulations does not ‘compel’ anything: the language is what it is. It is the court that chooses to construe the language in a manner that leads to the conclusion that the enactments are unconstitutional…. I believe the court today fails to give respect to the legislature’s proper role but instead substitutes its judgment for that of the legislature. Finally, nothing in Alaska’s equal protection clause requires the State to subsidize non-medically-necessary abortions for Medicaid-eligible women simply because it provides them with medically necessary healthcare.”

Dunleavy is ardently pro-life, and was most recently an advertised guest at a private reception hosted by the social conservative advocacy group Alaska Family Council. An invitation to the affair, according to an editorial published The Anchorage Daily News, read, “With the recent election, we now have a better opportunity than ever before to advance pro-life policies in the Great Land.” He approved SB49 as a member of the Senate Finance Committee and voted for its passage in the Senate in 2013.

His attorney general, Kevin Clarkson, was instrumental in the drafting, litigation, and defense of a 2010 parental consent law. In Planned Parenthood v State of Alaska (2016), he joined the Department of Law in representing the sponsors of Ballot Measure 2 before the Alaska Supreme Court. The State defended the Parental Notice for Minor Abortion Act, which required medical professionals to give a minor’s parent or legal guardian 48-hour prior notice of a planned abortion before performing the procedure. The court found that the law violated the equal protection guarantees in the Alaska State Constitution, and struck it down. He also has defended abortion regulations and restrictions as co-counsel with the State’s Attorney General’s office multiple times, including Planned Parenthood v Campbell (2010) and Planned Parenthood v Alaska (2001). He was also a co-founder and past board member of the Alaska Family Council.

Given Dunleavy’s stated beliefs and his appointment of Clarkson as AG, it is very doubtful today’s decision lands in the same universe as a settled issue – even in the short-term.

This article brought to you by Everlast’s “What It’s Like

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