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(CN) — The state of Alaska on Wednesday tried to persuade the state’s Supreme Court that a trial judge got it wrong last year when she permanently barred enforcement of a 1970 law that prohibits anyone other than a licensed physician from performing an abortion.
Assistant Attorney General Laura Wolff told the five justices of Alaska’s top court that the law, which doesn’t allow so-called advanced practice clinicians — such as physician assistants and advanced practice registered nurses — to administer medication or aspiration abortions doesn’t amount to a substantial infringement of a fundamental right.
“It’s important that we recognize the difference between inconveniencing a fundamental right and significantly impeding a fundamental right,” Wolff argued.
This difference is important, she said, because the lower court judge had incorrectly applied what is known as strict scrutiny — the most stringent form of judicial review that requires that the government provides a compelling reason to restrict a fundamental right — to the law even though there was no good evidence that it actually prevented women from getting an abortion.
Planned Parenthood sued in 2019 to block the state law that was passed in 1970 to decriminalize abortions with the caveat that they could only be performed by licensed doctors.
The reproductive health care provider claims that the law, which it refers to as the “APC ban,” singles out abortions because it allows qualified and licensed advanced practice clinicians to perform many other medical procedures, including for miscarriage patients, but not relatively standardized and straightforward abortion procedures.
As a result, Planned Parenthood says, women in Alaska who seek an abortion have access to a limited number of providers and time slots and have less flexibility to undergo this procedure. This in turn can cause delays and in some cases prevents women from getting an abortion, to the detriment of their health and privacy.
“This is a completely arbitrary restriction on the kind of care APCs can provide,” Camila Vega, an attorney for Planned Parenthood told the court. “It’s uncontested that abortion is safe. It is uncontested that APCs can and do provide more complex care than abortions, including care that carries greater safety risk.”
During five years of litigation and a four-day bench trial before a Superior Court judge, Vega argued, the state hadn’t been able to articulate one compelling justification for the ban on advanced practice clinicians performing abortions.
“There’s no state interest here,” she said.
While the justices didn’t indicate how they were inclined to rule on the state’s appeal, they expressed some concern that the restrictions lawmakers set more than 50 years ago might no longer be very relevant, given the advances in medical care since then.
Justice Aimee Oravec noted that the state’s interest might have shifted from the time the law was passed to decriminalize abortion to now.
“Should we be looking at the state’s interest at the time was passed or at the time the complaint is arising?” she asked the Planned Parenthood lawyer. “We’re arguing about whether a different provider can provide the same service that 60 years ago was, like, innovative and a big deal that we were going to allow it to be legal.”
Vega responded that, if the state wanted to claim a safety interest at present, this was undermined insofar as it banned advanced practice clinicians, who she said can provide abortions just as safely as licensed physicians can, to administer this care and delay women’s access to an abortion.
Likewise, Justice Jennifer Henderson asked the state’s attorney how relevant the restriction was today.
“The legislature was animated by very different concerns when they passed this law 50 years ago than the issues now,” she observed. “Even if they were deciding that only doctors can safely perform abortions, can we just assume that that is still true now?”
Wolff, however, insisted that the court had to unless the Legislature changed its mind.
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