Before advancing the operating budget to the House floor last Thursday, the House Finance Committee adopted an amendment adding intent language barring Medicaid funding of abortions and removing the $334,000 the State has already paid in reimbursements. Rep. Cathy Tilton (R-Wasilla) was the sponsor.
“My only concern is, do we know – will this survive any legal challenge?” Rep. Jennifer Johnston (R-Anchorage) asked when the amendment was introduced.
“This is an amendment and the dollars have been decreased in the budget for the last several years and it has survived that,” Tilton responded.
“The language has been tested and found unconstitutional,” Rep. Andy Josephson (D-Anchorage) noted. He would vote no, but the amendment passed 7-2.
Tilton proposed identical amendments in 2017 and 2018. In total, five different amendments to deny funding for abortions have been offered as budget amendments in the House over the last two years by Tilton, Rep. David Eastman (R-Wasilla), and Rep. George Rauscher (R-Sutton).
In 2017, on the House Floor, Rep. Geran Tarr (D-Anchorage) spoke to the proposed prohibition.
“The Supreme Court ruled in 2001 that medically necessary abortion services must be paid for by the Department of Health and Social Services of the State of Alaska, as blocking it violates the Equal Protection clause of the constitution,” Tarr said at the time. “And, in essence, what that means is that we’re not going to treat poor women any different than any other woman in the state. Any woman in the state is going to have access to any legal medical procedure that they are entitled to have.”
“Every time an unconstitutional provision like this is passed, it’s litigated,” she continued. “And, so far, the State has had to spend hundreds and hundreds of thousands of dollars, always on the losing side, to defend these unconstitutional provisions. And, at a time like this, doing something that we know is unconstitutional, that the Supreme Court resolved in 2001 – more than 15 years ago – is bad policy, and it’s a bad move for the budget.”
Alaska Supreme Court Mandate
Tarr was correct last year and remains correct today. And there is no difference in the language Tilton applied this time around.
“It’s the exact same,” Alyson Currey, the legislative liaison for Planned Parenthood Votes Northwest and Hawaii, told AKLedger over the weekend. “Previous budgets have passed with that language and a funding decrement in it. But, because the state is obligated to pay for abortion care for low income women, providers are still reimbursed anyway.”
In 1998, the Department of Health and Social Services (DHSS) adopted regulations regarding abortions in an attempt to parallel federal regulations defined by the Hyde Amendment, a 1976 law to prohibit public funding of “abortions except where the life of the mother would be endangered if the fetus were to be carried to term; or except for such medical procedures necessary for the victims of rape of incest.”
The Alaska Supreme Court, in holding with existing precedent established by Valley Hospital Association, Inc. v Mat-Su Valley Coalition for Choice (1997), invalidated these restrictions in State of Alaska Department of Health and Social Services v Planned Parenthood of Alaska, Inc. (2001).
“Because DHSS offers no other funding source for abortions, [administrative code] ensures that a woman who medically requires an abortion will receive no assistance from the state,” then-Chief Justice Dana Fabe wrote for the Court. “DHSS’s differential treatment of Medicaid-eligible Alaskans violates equal protection under rational basis review as surely as it does under strict scrutiny. Under any standard of review, “the State may not jeopardize the health and privacy of poor women by excluding medically necessary abortions from a system providing all other medically necessary care for the indigent.”
The Alaska Supreme Court upheld this position a third time this past February with their decision in State of Alaska v Planned Parenthood of the Great Northwest.
The latest decision centered around both Senate Bill 49, signed into law in 2014, and another round of DHSS regulations adopted under Gov. Sean Parnell. Both had the same goal of defining what constituted a “medically necessary” abortion, thus distinguishing the procedure from an “elective” surgery and determining it eligible for Medicaid funding.
SB49 and the DHSS regulations defined 19 specific physical conditions that would represent “a threat of serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily function[.]” Omitted from SB49, but added in the administrative code revisions, was an additional “psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.”
Planned Parenthood again filed suit, and once more the Court found merit in their objection. Both SB49 and the DHSS regulations were struck down in violation of the Alaska State Constitution’s Equal Protection Clause (Article I, Section 1).
“[T]he State burdens the exercise of a fundamental right for indigent people when it only subsidizes the inevitable alternative,” Alaska Supreme Court Justice Susan Carney wrote. “[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… 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.”
“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.
Their stated reasoning belies the intent of Tilton’s budget amendment, designed to enact a “limitation on Medicaid funding for abortions.”
Adoption as an Alternative
Discussion of Tilton’s amendment was rife with emotion, as colleagues voiced support for the measure.
“I was adopted at birth from an unwed teenager, and it breaks my heart to think that the State of Alaska paid for 805 babies to not get the chance that I had,” Rep. Kelly Merrick (R-Eagle River) said through tears. “My father died several years ago and I just lost my mother. But, I cannot think of a better way to honor their legacy than to advocate for those babies. I hope my fellow committee members would agree that using State funds for abortions is both morally and ethically wrong.”
“I hope we can take the opportunity right now to say that there is a better way to deal with the problems in our lives and not make one mistake into two mistakes,” Rep. Ben Carpenter (R-Nikiski) agreed, noting that two days previous marked the one year anniversary of his family losing their first grandchild. “We do have a choice and we can choose to adopt.”
“With the thought of how many abortions that the State of Alaska is funding on a yearly basis just tears at the heart of many who would have loved to have adopted a child; a baby to have in their home where they had no chance at having children otherwise,” added Rep. Colleen Sullivan-Leonard (R-Wasilla).
Comparing adoption to abortion is not an apples to apples comparison.
In early March, DHSS Office of Children’s Services Director Sana Efrid gave an update to the Senate Health and Social Services Finance Subcommittee. It was a sober assessment.
“Sometimes I’m asked about what are we doing to prevent the removal of children from their homes,” Efrid told committee members. “And, unfortunately at this time, because of our funding structure and because of the overwhelming needs of our state, we’re doing very little to prevent the removal. By the time we get involved with families, the conditions in the home have progressed to the point where pretty much the only thing we can do is remove the children to keep them safe.”
Efrid said that the majority of appropriations to OCS go to foster care services. On any given day in Alaska, she noted, there are approximately 3,000 children in foster care. A single case of child maltreatment resulting in adoption can cost the state an estimated $142,000.
In 2018, OCS had 23,147 reports of child abuse – the most of any year on record and up over 47 percent from the five year low recorded in 2014. Those reports are divvied out among OCS’s current staff of about 100 investigators, translating to a workload of a little over 231 cases each.
“You’ll notice that over the last couple of years, we’ve had a drop in our general funds while the number of children in our services have increased,” Efrid explained, noting that in 2017 and 2018 the number of children under the care of OCS has outpaced State funding. “We have a very limited amount of federal dollars that come into our state which we match with a very small amount of general funds. In order to really change the system, we’re going to have to start investing in preventive services.”
No lawmakers have yet proposed any increase in funding for OCS.
Additional barriers in the way of adoption are the costs associated with carrying a child to term.
According to a study conducted by FAIR Health, an independent nonprofit that collects data on health care costs, Alaska is the most expensive state to have a baby. The birth itself, if one is insured, averages over $10,600. Without insurance, it’s nearly $20,000. C-sections, which the U.S. Centers for Disease Control estimates represent nearly one in three cases, can see those costs climb to nearly $20,000 and $30,000, respectively. That doesn’t take into account costs incurred during labor, or the fact that there is no state law in Alaska requiring paid leave.
For prospective parents looking to adopt, Catholic Social Services estimates costs to range between $14,429 and $22,335. Those costs do not include legal fees. However, CSS is currently not accepting new families into its infant adoption waiting pool.
“Our agency has not been having workshops for new adoptive families for the past year, as we had a large pool of families waiting to adopt,” Tricia Teasley, Director of Development and Community Relations for CSS, told AKLedger. “We are in the midst of assessing our infant adoption program overall, and considering changes to best serve our community.”
CSS is the only licensed adoption agency operating in Alaska.
According to the Adoption Network Law Center, a California-based law corporation and adoption service agency, the cost of adopting outside of CSS can fall anywhere between $25,000 and $80,000.
The median household income in Alaska, reports the U.S. Census Bureau, is $76,114.
No amendments to increase assistance for adoptions have been proposed.
“I think there’s a lot of value in a woman’s right to choose, and I’ll never deny that,” Rep. Gary Knopp (R-Kenai) told his House Finance colleagues last week. “I do find, I believe, that the use of public funds and Medicaid services makes it almost too convenient for abortions.”
“Planned Parenthood, whether you like them or not, they make it way too easy in my opinion, but that’s their choice. So, this is not about whether the woman has a choice,” Rep. Tammie Wilson (R-North Pole) agreed. “Sometimes, if we make the choice a little harder, because somebody has to think a little more, it doesn’t mean that they can’t necessarily find the service, but sometimes we make things too easy and too rash decisions are made.”
These comments, made in defense of Tilton’s amendments, seemed to assert that access to abortion is readily available through Planned Parenthood (Tilton did not respond to inquiry). It negates the fact that Planned Parenthood is not a funding source.
“We’re a health care provider. And, like any health care provider, in order to provide a service we need to be reimbursed for that service,” Currey said. “Planned Parenthood does not make it easy. Depending on where someone is in our state, they still have to travel hundreds of miles. That costs money. Medicaid pays for travel, so if a person no longer had Medicaid coverage for travel for health care, than that is a barrier to abortion and can push them further into term, increasing complications moving forward.”
However, the debate continues.
In a bizarre statement made subsequent to Tarr’s comments on the House floor in 2017, Wilson offered: “If it was going to be litigated, I’d think it would have been litigated a long time ago, because it’s been in the budget ever since I’ve been here, and I think even prior to that as well.”
To be clear, there are volumes of litigation on the topic — each time ending with a unifying theme: the rejection of restrictions against Medicaid reimbursements for abortion, found to be unconstitutional under the Alaska State Constitution.
Now it is in the budget once more. And if it passes again?
“This could be litigated and the state would lose again,” Currey surmised. “Because the [Alaska] Supreme Court has ruled for the third time now that it is unconstitutional to restrict low income women from accessing the exact same health care as women with means.”
More litigation which would, again, be billed to the the State, with lawmakers hoping for a different result the fourth time around.
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