JUNEAU — State regulations take effect next month further defining what constitutes a “medically necessary” abortion for purposes of receiving Medicaid funding.
Notice was sent to the state health department Tuesday that the regulations had been filed by Lt. Gov. Mead Treadwell last week. The new rules, blasted by critics as unconstitutional and an unnecessary government intrusion, are scheduled to take effect Feb. 2.
The new certificate to request Medicaid funds features two boxes.
Under the first, a provider would have to certify the pregnancy was the result of rape or incest or the abortion was performed to save the woman’s life. The so-called Hyde Amendment, attached to congressional spending bills, allows for federal funds to be used for this option.
Under the second, a provider would have to indicate an abortion was medically necessary to avoid a threat of serious risk to the woman’s physical health from continuation of her pregnancy due to “impairment of a major bodily function.” Attached is a list of 23 such impairments, including eclampsia, congestive heart failure, coma and a psychiatric disorder that places a woman in “imminent danger of medical impairment of a major bodily function” if an abortion is not performed.
There is also what health commissioner Bill Streur called a “catchall” option, described as “another physical disorder, physical injury, physical illness, including a physical condition arising from the pregnancy.”
He said the department has the right to check medical records to verify the need.
The department in 2012 backed off language criticized as restricting the definition of a “medically necessary” abortion for purpose of payment under Medicaid. But Streur, in proposing the new regulations last year, said he decided to take another look at the issue when the department did not see any change in the request for state funds for abortions when officials had hoped to see reductions.
He said Tuesday that the number of certificates requesting state funds continued to be ahead of 2012 levels at last check, which he believed was about October. He said the state hasn’t paid for any Hyde Amendment abortions in the last three years though the state has high incidences of rape. He said that could be attributed to a reluctance to report rape or incest, or privacy concerns.
He said his intent with the regulations was to make sure the state was only paying for medically necessary abortions. He said he also wanted physicians to look “very carefully at why they are performing the abortions.”
Streur said he took to heart constitutional concerns raised by Democratic lawmakers. He said he asked the Department of Law if the proposal was unconstitutional or infringed on an Alaska Supreme Court decision that held the state must fund medically necessary abortions if it funds medically necessary services for others with financial needs. He said the response he received was “a resounding no.” He said the guidance he received was not written.
Several Democrats had asked Streur to withdraw the regulations after they were proposed. A legal memo from a legislative attorney, requested by Sen. Hollis French, D-Anchorage, said the proposal would likely be found unconstitutional, noting that without a compelling state interest, a court would likely find the proposed new rule “unconstitutionally discriminatory.”
French said Tuesday that it’s “inconceivable” someone like Planned Parenthood would not sue. “You’re still burdening this one medical condition, pregnancy, with a whole host of bureaucratic procedures that you don’t burden other medical conditions with,” he said.
Planned Parenthood Votes Northwest said in a news release that it “condemns” the decision “to adopt an unconstitutional policy that interferes with women’s personal medical decision-making.” The group’s political and organizing director, Treasure Mackley, could not say whether the group might sue.
Some Democrats labeled the regulations an unnecessary government intrusion into what should be a decision between a woman, her family and her doctor.
“We in Alaska have a strong belief in, and a constitutional right to, privacy, and we don’t want government’s hands involved in personal decisions about our bodies,” House Minority Leader Beth Kerttula, D-Juneau, said in a statement.
The regulations are similar to a bill proposed during the last legislative session by Sen. John Coghill, R-North Pole, though the bill did not include language on psychiatric disorders and was amended to include a Democratic-led proposal to allow for a program for women’s health services.
Coghill had said his bill was aimed at providing clarity to what “medically necessary” means, an issue he argued the court left for legislators to decide. Supporters also argued the public money should not be used for “elective” abortions. The bill passed the Senate but was held over in the House.
Coghill said Tuesday he wants to study the comments surrounding the psychiatric disorder language, an issue that was debated on the Senate side. He said he was pleased the department pursued the issue but said he believed a law would probably have more authority if the issue gets taken to court, and he said he may continue to pursue a statutory change.