If abortions are elective, state shouldn't be responsible

COMPASS: Other points of view

July 24, 2012 

President Harry Truman once said, "If you can't convince 'em, confuse 'em." Language really does matter, and Alaskans need to understand the convoluted game Planned Parenthood has been playing with your money regarding taxpayer-funded abortions.

Although on very shaky legal ground, to date, the courts have said abortion is a protected right. But just because it is a right of choice doesn't mean the state is obligated to subsidize that choice. Why is Alaska paying for elective abortions?

Medicaid is a cooperative endeavor in which the federal government gives funding to participating states to aid them in providing necessary medical care to needy persons. By federal law, to receive federal Medicaid funds Alaska must pay for certain medical care, including childbirth. The "Hyde Amendment" limits federal Medicaid funds to paying only for abortions that are necessary to save a woman's life, or to end a pregnancy resulting from rape or incest.

The U.S. Supreme Court long ago ruled that the federal Constitution does not require a state to pay for elective abortions. The court also ruled that the "Hyde Amendment" does not violate the U.S. Constitution, not even when a woman's abortion is medically necessary. The court's rationale was that the constitutional right of choice does not include entitlement to the money needed to pay for the choice. Although the state may not place undue obstacles in a woman's path to abortion, it need not remove those obstacles it did not create. The obstacle between an indigent woman and her desired abortion is her own indigency, something the state did not create.

But what is happening in Alaska? Cue the Alaska Supreme Court. In 2001, in a case filed by Planned Parenthood, the Alaska court decided that because the state uses matching Medicaid money to pay for childbirth, the Alaska Constitution requires the state to also pay for "medically necessary" abortions. According to the opinion written by Justice Dana Fabe, if the state grants "needed health care to some Medicaid-eligible Alaskans," then it may not deny care to others "based on criteria entirely unrelated to the Medicaid program's purpose of granting uniform high quality medical care to all needy persons of th[e] state." But, the court said, restrictions that limit state funding based on "neutral criteria" like "medical necessity, cost and feasibility," are permissible.

Justice Fabe assured us back in 2001 that the case did "not concern state payment for elective abortions." She referred to the "medically necessary" nature of the abortions for which the state must pay 34 separate times in her opinion.

So why is it that over all these years the state has paid, and still continues to pay, for elective abortions? Well, it's because the state, and current Department of Health and Human Services Commissioner William Struer, have left the definition of "medical necessity" to the discretion of abortion providers like Planned Parenthood's Dr. Jan Whitefield.

Dr. Whitefield has testified under oath that he certifies medical necessity whenever pregnancy would interfere with a woman's work or education plans, or if she views her pregnancy as an "affront." In other words, an abortion is medically necessary whenever a woman does not want to be pregnant. Right now, any abortion a Planned Parenthood doctor certifies as medically necessary is just that, and the state must pay.

What's the solution? Well it's not the regulation that Struer recently proposed that leaves the decision with physicians like Dr. Whitefield. Although Planned Parenthood said this minor administrative tweak will "roll back women's rights by twenty years," it is simply more of the same. The solution is to take Justice Fabe at her word. According to Fabe, distinguishing between medically necessary care and elective care is constitutionally neutral; medical necessity is a neutral medical concept. Thus, as long as the basis for drawing a distinction between "medically necessary" and "elective" abortions is in standard medical terms and concepts, the state will not violate the Alaska Constitution. The state can define a "medically necessary abortion" and then pay for only those abortions.

In our current legal environment, a woman's "right" to have an abortion is between her, her God and her doctor. But if the state is being asked to pay for the abortion, the state has every right to use neutral medical terms to define when its payment is required by "medical necessity."

Jim Minnery is the president of the Alaska Family Council.

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