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From Health Law Daily, February 20, 2019

Abortion amendments, regulation violated state equal protection guarantee

By Jeffrey H. Brochin, J.D.

State Supreme Court affirmed Superior Court ruling that the statute’s text was ambiguous where "threat of a serious risk" was not defined.

The Supreme Court of Alaska has affirmed the decision of the Superior Court striking down the 2013 regulation and the 2014 statute regulating Medicaid coverage of abortions in that state. The 2013 Department of Health and Social Services (DHSS) amendments of definitions related to Medicaid regulations required a more detailed medical certificate to obtain state Medicaid funding for an abortion. The form required doctors to certify that an abortion was required by one of the two circumstances permitting federal abortion funding under the Hyde Amendment, or that in his or her professional medical judgment the abortion procedure was medically necessary to avoid a ‘threat of serious risk’ to the physical health of the woman from continuation of her pregnancy. The amendments were challenged by Planned Parenthood which cited Constitutional equal protection violations (State of Alaska v. Planned Parenthood of the Great NorthwestFebruary 15, 2019, Carney, J.).

‘High-risk, high-hazard’ standard. A 2014 statute and 2013 regulation re-defined which abortions qualified as ‘medically necessary’ for the purposes of Alaska’s Medicaid funding. The statute defined medically necessary abortions as those that ‘must be performed to avoid a threat of serious risk to the life or physical health of a woman from continuation of the woman’s pregnancy’ as a result of a number of listed medical conditions; the court construed the administrative regulation as similarly restrictive. Planned Parenthood of the Great Northwest (Planned Parenthood) challenged both the statute and regulation as unconstitutional, and the superior court held that both measures violated the equal protection clause of the Alaska Constitution. The court reasoned that these measures imposed a "high-risk, high-hazard" standard on abortion funding unique among Medicaid services, and held that the Alaska Supreme Court’s 2001 decision striking down an earlier abortion funding restriction on equal protection grounds compelled the same result. The State followed with this appeal.

Differing funding eligibilities. In their appeal, the state argued that both the statute and regulation should be interpreted more leniently and therefore did not violate the Alaska Constitution’s equal protection clause. However, the court disagreed, finding that the measures could not be interpreted as leniently as the state suggested, and that the language in fact compelled a "high-risk, high-hazard" interpretation as adopted by the superior court. The standard imposed different requirements for Medicaid funding eligibility upon women who chose to have abortions than it did upon women who chose to carry their pregnancies to term. Therefore, the statute’s and the regulation’s facially different treatment of pregnant women based upon those choices required the court to apply strict scrutiny.

Constitutional analysis. To determine whether the challenged statute was constitutional the court began by first interpreting the statute, and only after determining the meaning of the statute, did they analyze its constitutionality under Alaska’s equal protection doctrine. However, although both the state and Planned Parenthood argued that the text of the statute unambiguously supported their respective interpretations, those positions differed radically. Planned Parenthood interpreted the statute to allow Medicaid funding for an abortion only when it was the sole treatment available to protect a woman against a serious risk of death or impairment of a major bodily function because of an explicitly catastrophic medical condition. The state, on the other hand, read the statute to provide a broad and inclusive definition of medical necessity, one that would allow doctors to use their professional judgment when one of a wide range of ailments and conditions elevated the health risks the pregnancy posed.

Statutory ambiguity. Planned Parenthood argued that the statute required a woman both to presently suffer from one of the listed conditions and to be at risk of impairment of a major bodily function because of that condition before Medicaid would pay for an abortion. In contrast, the state asserted that the list merely served to illuminate the concept of ‘serious risk’ by providing examples of the very serious complications that can develop during pregnancy. The court concluded that the statute’s text was ambiguous because the term "threat of a serious risk" was not defined. The lack of a clear definition created an ambiguity regarding whether a woman seeking an abortion would qualify for coverage based on one of the listed medical conditions that authorized reimbursement for the cost of the procedure. Furthermore, the court concluded that the statute’s ‘catch-all’ provision did not meaningfully expand the permissive scope of the statute.

Regulation’s similar meaning. The court found that overall the regulation was less restrictive than the statute in its requirement that the pregnancy pose a serious risk to the physical health of the woman, and, that it included a slightly broader catch-all provision and permitted coverage for more mental health conditions. However, those differences were deemed not sufficiently less restrictive so as to meaningfully differentiate coverage under the statute and the regulation.

Having determined the statute’s and regulation’s meanings, the court assessed whether the measures resulted in unequal treatment of different classes of women, and concluded that the statute and regulation imposed unequal treatment of comparison classes, and therefore infringed upon a Constitutionally protected right of equal protection. Accordingly, the Supreme Court affirmed the decision of the Superior Court striking down the 2013 regulation and the 2014 statute.

The case is No. S-16123.

Attorneys: Jahna Lindemuth, office of the Attorney General, for State of Alaska and The Commissioner of the Department of Health & Social Services. Susan Orlansky (Reeves Amodio LLC) for Planned Parenthood of the Great Northwest, Reproductive Rights and Center for Reproductive Rights.

Companies: State of Alaska; The Commissioner of the Department of Health & Social Services; Planned Parenthood of the Great Northwest; Reproductive Rights; Center for Reproductive Rights

MainStory: TopStory CaseDecisions CMSNews MedicaidNews AlaskaNews

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