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Alaska State Sen. Questions Constitutionality of Proposed Medicaid Abortion Regulations

Alaska State Sen. Questions Constitutionality of Proposed Medicaid Abortion Regulations

July 31, 2012 — An Alaska state senator in a letter on Friday urged the health department commissioner to withdraw a proposal to change requirements for funding abortion care for low-income women, the AP/Fairbanks Daily News-Miner reports.

Sen. Hollis French (D) in a letter to Commissioner Bill Streur said the proposed regulations would reinstate rules overturned by the Alaska Supreme Court in 2001. In its ruling, the court said the state must fund medically necessary abortion care if it funds other medically necessary services for people with a financial need (Bohrer, AP/Fairbanks Daily News-Miner, 7/28).

Under the proposed regulation, the state would only cover abortion care through Medicaid or Denali KidCare -- joint state-federal health insurance programs for low-income Alaska residents -- if a provider certifies on paper that the procedure is medically necessary. Current state law defines medically necessary abortions as those that address "a condition harmful to the woman's physical or psychological health." However, the proposal states that coverage would only apply if "the health of the mother is endangered by the pregnancy" (Women's Health Policy Report, 7/16).

Constitutional Issues

Under the proposed regulation, the "medically necessary" standard would become more narrow and would be "reasonably likely" to be found unconstitutional, according to an opinion by legislative Legal Services that was requested by French. The 2001 court decision contains language "strongly suggesting" that 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)," legislative attorney Jean Mischel wrote in a memo.

A spokesperson for the health department said the agency would not address the issue until after the public comment period, which closed on Monday (AP/Fairbanks Daily News-Miner, 7/28).