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Medically Necessary Abortions: The New Policy and Where It May Take Us


Medically Necessary Abortions - cover

Last week, Lieutenant Governor Mead Treadwell certified a big change in the way the Alaska Department of Heath and Social Services (DHSS) approves Medicaid reimbursement for abortions.

Republican lawmakers and pro-life organizations, in recent years, have accused physicians of editorializing what “medically necessary” actually means. Beginning in February, a new policy will ask doctors to check a box, identifying each life-endangering condition that warrants an abortion. The new changes from DHSS provide 23 specific conditions that would deem the procedure medically necessary and, subsequently, justify the Medicaid reimbursement.

The change has been met with outrage from the Alaska Democratic Party, assorted Democratic elected officials, and Planned Parenthood, while commentary from anti-abortion groups has been relatively muted. The subdued response from the policy changes’ would-be supporters hints that the discussion surrounding women’s reproductive rights will not be absent from the coming legislative session.

In a press release, North Pole Republican state senator John Coghill lauded the administrative change. “State Medicaid should not be funding elective procedures, including elective abortions.”

His delight over the administrative code is probably in large part due to his inability, despite repeated attempts, to do so legislatively.

In 2012, Coghill authored SB191 – legislation that would have required women to undergo an ultrasound before an abortion. At the same time, in the legislature’s lower chamber, state representative Wes Keller (R-Wasilla) introduced HB363 in the House Health and Social Services Committee. Keller’s bill sought to prohibit the use of Medicaid funds for abortion. Sound familiar?

In the bill’s sole hearing, Keller’s staffer, Jim Pound, walked into hot water when he informed state representative Beth Kerttula (D-Juneau) that women “quite often” use abortion as a form of contraception.

Neither bill went anywhere, attributable to a strong court precedent finding such restrictions unconstitutional. In 1997’s Valley Hospital Association, Inc. v. Mat-Su Coalition for Choice, for example, Alaska Supreme Court Justice Allen T. Compton wrote, plainly, that “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

In 2001, the court reaffirmed its position with its decision in State of Alaska Department of Health and Social Services v. Planned Parenthood of Alaska, Inc., asserting that discriminatory treatment of poor Alaskans, in the allocation of health care benefits, violated the equal protection clause of the 14th Amendment. “DHSS is constitutionally bound to apply neutral criteria in allocating health care benefits,” the decision read, “even if considerations of expense, medical feasibility, or the necessity of particular services otherwise limit the health care it provides to poor Alaskans.”

Coghill introduced another bill, last year, bearing a strong resemblance to Keller’s bill. SB49 is “An Act relating to women’s health services and defining ‘medically necessary abortion’ for purposes of making payments under the state Medicaid program.”

The assumption was that, since the court specified that “denial of Medicaid assistance to poor women who medically require abortions violates” their constitutional rights, he would instead tighten the restrictions on what “medically necessary” meant, and tie Medicaid reimbursements to those definitions (despite the court’s repeated insistence that those definitions were not part of the legislature’s jurisdiction).

His proposal, like the DHSS policy change certified last week, required physicians to check a box on the Medicaid reimbursement application acknowledging that the procedure was medically necessary, and went on to list 22 specific, physical conditions that would qualify that determination.

With sweeping electoral gains picked up by the GOP in 2012, resulting in a Republican super majority, bolstered by the Alaska Family Action network’s lobby efforts in Juneau, the bill looked like it easily had the votes to become law.

SB49 passed the senate by a vote of 14 to 6, with Democratic state senators Dennis Egan, Johnny Ellis, Hollis French, Berta Gardner, Bill Wielechowski, and Republican state senator Burt Stedman dissenting. But not before Gardner and Ellis were able to tack on an amendment to participate in a federal program, “providing family planning services, health screening examinations, and related services.”

Coghill objected, but sufficient support caused him to eventually withdraw the objection. The bill was transferred to the House Finance Committee with the amendment intact. It easily had the votes to pass out of both that committee and the state house, but no further action was taken. It remained there when the legislature gaveled out, and it will be there when the 28th legislature gavels back in next week.

Over the summer, the DHSS announced their own proposed policy changes regarding Medicaid reimbursements for abortion. A period of public comment opened in August and ended at the end of September. Planned Parenthood and Alaska Family Action fired off blast emails, rallying supporters. Hundreds offered comments. DHSS Commissioner William Streur confirmed that the proposal would move forward last week.

There are only two noticeable discrepancies between SB49 and the new changes slated to take effect next month. The first is that the amendment, offered by Ellis and Gardner, did not make it into the administrative changes (that would probably need to be done statutorily). The second, more interesting, difference is one additional “impairment” included qualifying as a “medically necessary” abortion eligible for Medicaid funding.

Coghill’s bill recognized 22 such medical conditions, all physical: diabetes with acute metabolic derangement of severe end organ damage, renal disease that requires dialysis treatment, severe preeclampsia, etc.. The DHSS language included all 22, in the same order as arranged in SB49, but added one more: “a psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.”

This is not a physical condition, and could be seen as a sort of loophole, allowing physicians to determine if an abortion is medically necessary without having to connect it directly to a physical ailment. If a physician felt a woman seeking an abortion was a threat to herself, the procedure could still be deemed medically necessary. This interpretation of “medically necessary” is exactly what lawmakers objected to during the SB49 hearings, and what Alaska Family Action president Jim Minnery described in blast emails as “Medicaid fraud.”

That 23rd provision, included by DHSS, could very well be the reason for the lack of reaction by pro-life groups and anti-abortion Republican lawmakers, and might explain why Coghill included a note of non-finality in his press release: “I’d still like to see statutory language, passed by the legislature, that defines ‘medically necessary abortions’ for the purposes of making payments under Medicaid.”

If he wishes to do that this coming session, he still has SB49 as a vehicle to codify the newly adopted DHSS policy, stripping the added provision – though it still would likely face an uphill battle in court, and still retains the family planning amendment offered by Gardner and Ellis.

Either way, don’t count on this session being free from the issue of abortion and women’s reproductive rights.