Judge Kills Alaska Abortion Restriction

ANCHORAGE (CN) – Alaska law and regulations on medically necessary abortions are unconstitutional, a Superior Court judge ruled.
     Planned Parenthood of the Great Northwest sued the state and its Commissioner of Health and Social Services William Streur in 2014, challenging Alaska Senate Bill 49 and the accompanying regulation that “severely restrict the circumstances under which Alaska will pay for medically necessary abortions for women who rely on the Medicaid program for their health care.”
     Anchorage Superior Court Judge John Suddock ruled that the law and regulation violate the Alaska Constitution’s equal protection clause – as did similar restrictions which were declared unconstitutional 14 years ago.
     “The Alaska DHSS has no omnibus definition of medical necessity by which it determines whether medical services are covered by Medicaid,” Suddock wrote on Aug. 27. Suddock declined to offer his own definition of “sound prudential reasons.” But he said the “high-risk high-hazard standard” of the law and regulation “denies low-income women seeking Medicaid abortions the equal protection of Alaska law.”
      Senate Bill 49 , enacted in 2014 as AS 47.07.068, defined “medically necessary abortion for purposes of making payments under the state Medicaid program.”
     Section 2 states: “The department may not pay for abortion services under this chapter unless the abortion services are for a medically necessary abortion or the pregnancy was a result of rape or incest. Payment may not be made for elective abortion.”
     A DHSS regulation stipulated the content of the request form for abortions, which Streur amended “without DHSS staff involvement.”
     The amendment states: “I certify based upon all of the information available to me … that in my professional medical judgment the abortion procedure was medically necessary to avoid a threat of a serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily function including but not limited to one of the following …”
     Then comes a list of medical conditions, including death, diabetes, renal disease, epilepsy and coma.
     In 1998 Alaska killed Medicaid funding for most medically necessary abortions for low-income women. The Alaska Supreme Court found this unconstitutional in 2001, as a violation of due process. The new law and regulation fail for the same reason, Suddock wrote. He stopped short, however, of adopting Justice Sen Tan’s 2001 definition of medical necessity.
     “It is likely that Alaska’s Supreme Court will re-examine them closely as it decides whether to itself a definitive standard,” Suddock wrote.
     The state attorney general’s office said it is reviewing the ruling and cannot say yet whether the state will appeal.
     The 1998 law and regulation restricted state-funded Medicaid abortions to instances of rape, incest or risk of death to the woman. Planned Parenthood successfully challenged it.
     In the new lawsuit, originally filed in January 2014 and amended in May that year, Planned Parenthood said that from 2002 to 2014 the Legislature enacted budgetary restrictions prohibiting the DHSS from paying for any abortion services except with federal funding.
     Each year, the state budget included: “No money appropriated in this appropriation may be expended for an abortion that is not a mandatory service required under AS 47.07.030(a).”
     And each year through 2014, the Office of the Attorney General responded: “DHSS, however, is under the superior court order to operate its Medicaid program in a constitutional manner by providing payment for [abortion services].”
     Planned Parenthood claimed: “In reducing the ability of women to access medically necessary care, the funding restrictions actually harm, rather than protect public health.”