JUNEAU -- An Anchorage Democratic senator on Friday asked the state to withdraw proposed regulations for abortion payment conditions, citing in part a legal opinion that they may be unconstitutional.
Sen. Hollis French, in a letter to health department Commissioner Bill Streur, said the agency is seeking to reinstate criteria overturned by the Alaska Supreme Court in 2001. The court held the state must fund medically necessary abortions if it funds medically necessary services for others with financial needs. The proposed regulation further defines "medically necessary."
It states that as a condition for an abortion provider to be eligible for payment under Medicaid, the invoice must come with a certificate saying the procedure was medically necessary because the health of the woman was endangered by the pregnancy. According to an opinion from legislative Legal Services, requested by French, the phrasing is narrower than the current statutory standard -- which doesn't define medically necessary -- and "reasonably likely" to be found unconstitutional under the Supreme Court precedent.
There is language in the 2001 court decision "strongly suggesting" the court "considers women who carry their pregnancy to term to be similarly situated with women who have an abortion (in that they are both exercising their constitutional freedom of reproductive choice)," according to the memo by Jean Mischel, a legislative attorney.
A health department spokeswoman said the agency would not address the issue until after the public comment period closed Monday.
Federal funding for abortions under Medicaid is currently limited to cases where the pregnancy was caused by rape or incest or when the woman's life is in danger if the abortion is not performed, according to the memo. Language has been included in state budgets for years that the memo says purports to bar the department from using state funds for abortions that fall outside those parameters, the memo states. But the department has been under court order to continue paying for "medically necessary" abortions, and has complied with a state attorney general's advice to do so, it states.
What constitutes "medically necessary" is unclear, and it's likely that only further litigation will provide greater clarity, the memo states.