A recent announcement by the Alaska Department of Health and Social Services proposes changes to the way abortions are billed to Medicaid by defining a limited number of diseases and conditions which would qualify for the service under the statutory language of “medically necessary.” Commissioner Streur lauded the proposal in a recent interview discussing the reason for its implementation saying, “it will make them [doctors] think more about it before signing the box.” This proposal, a straight power grab and end-run around the legislature, invites legal challenges that will drag out for years, cost the state millions of dollars and will inevitably result in being overturned on constitutional grounds. Additionally, if the desire is to actually reduce abortions, there is a low-cost, effective and constitutionally appropriate way to do this.
In Alaska today, neutral access to abortion services through Medicaid is a right under the equal protection clause of our constitution. There are strong feelings on all sides of the abortion issue and I acknowledge that, but we live in a society of laws and the Alaska Supreme Court has been absolutely clear that the only time a state may interpose itself between a woman and her decision to go forward with an abortion is when there is a compelling state interest. Currently, to qualify for state funding under Medicaid, a doctor providing an abortion must certify that the procedure is medically necessary.
The constitutional issues are apparent in adopting the proposed regulations, but what I’m also troubled by is the Administration’s attempt to cut the legislature out of the picture and move forward without legislative concurrence. Last session a bill was introduced to do exactly what the proposed regulations do. That bill passed the Senate but has not passed the House and is not state law at this time. Regulations are the state’s way of implementing statute but in this case the Department is going well beyond statute and is, in effect, subverting the legislative process.
Why then, is there an effort to accomplish through regulations what was not achieved through legislation? This is because I successfully amended the bill in the Senate by adding language directing the Department of Health and Social Services to apply for a federal Medicaid Family Planning Program at a 90/10 federal match. The Family Planning Program, which specifically does not pay for abortions, pays for reproductive health services including counseling, birth control, examinations and disease treatment. It costs the state almost nothing and has proven results in saving money and reducing unintended pregnancies along with consequent abortions.
Although it is not always true, I like to think that regardless of where we stand on a woman’s right to make her own healthcare decisions, we can find common ground in supporting access to birth control as a successful and cost effective way to reduce abortions.
Call the Department of Health and Social Services and tell them how you feel. I’ve submitted my letter for public comment because I believe their proposal is a way of accomplishing through regulation what couldn’t happen legislatively, and it is simply a bully’s tactic. More importantly, I believe the Alaska Constitution applies to all people, not just those with whom I share personal beliefs and I will fight for that ideal as long as I’m a state senator.
Berta Gardner is an Alaska state senator, a Democrat representing the residents of District H, which encompasses Anchorage's Spenard, Midtown and U-Med neighborhoods.
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