Back in February, a new Alaska Department of Health and Social Services policy took effect, defining what constitutes a “medically necessary” abortion eligible for Medicaid reimbursements. The new regulations detailed 23 specific conditions, considered “life-endangering,” which physicians would have to identify on a case by case basis to justify the procedure. The move was in response to a long list of proposed legislation seeking to bar any public funds from going toward abortions.
The administrative move was a reaction to Senate Bill 49, introduced last session by Senator John Coghill (R-North Pole). That proposal, which passed the senate but stalled in the House, was virtually identical to the policy implemented by DHSS, save for two key distinctions. The first was an amendment, offered by Senate Democrats and adopted by the senate, allowing the state to participate in a federal program “providing family planning services, health screenings examinations, and related services.” The second difference was the addition of one additional “impairment” listed as a “medically necessary” reason for an abortion: “a psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.”
The added provision was the sole non-physical condition included in the regulations. If a physician felt a woman seeking an abortion was a threat to herself, the procedure could still be deemed medically necessary. This sort of determination is specifically what Coghill and SB49’s supporters objected to during last year’s hearings on the bill. The provision has been perceived by many Republican lawmakers as a loophole; anti-abortion groups, like Alaska Family Action/Council, have characterized it as “Medicaid fraud.”
“I’d still like to see statutory language passed by the legislature,” Coghill said in a January press release. The DHSS policy change is administrative, and can change at the behest of whoever sits in the Governor’s chair. Coghill wanted to codify the change. But he wanted to remove the added mental health provision. When the legislature gaveled back in, SB49 resurfaced as the means to those ends. When the bill passed out of the House Finance Committee, gone was the family planning language added by Senate Democrats.
The bill reached the House floor last Friday. Proceedings began in the morning, with three proposed amendments. Representative Tammie Wilson (R-North Pole) proposed an unfunded mandate stating that future legislatures should continue to fund programs supporting women’s health. The language served as “legislative intent,” but disappointed members of the minority, who wanted to see actual funds appropriated to specific programs rather than simply resolving an expectation to do so in the future. The amendment passed, 35-5, with Representatives Les Gara (D-Anchorage), David Guttenberg (D-Fairbanks), Andy Josephson (D-Anchorage), Sam Kito (D-Juneau) and Geran Tarr (D-Anchorage) opposing.
Representative Cathy Muñoz (R-Juneau) broke party lines with a second amendment, seeking to align SB49 with the DHSS policy changes by reinserting the mental health provision. The move sparked objection from her colleague, Rep. Gabrielle LeDoux (R-Anchorage), who sponsored the House version of the bill.
“Our experts have testified that no mental condition would ever make an abortion medically necessary,” LeDoux said, opposing the amendment. “And, in addition to that, I think the phrase ‘psychiatric disorder’ is a vague and subjective term when it’s not defined, diagnosed by an actual psychiatrist.”
In the absence of a psychiatrist, best leave those definitions and diagnoses to politicians.
Muñoz’s effort failed, narrowly, 19-21. Republican representatives Austerman, Hawker, Holmes, Munoz, and Seaton crossed over to vote with the minority, along with Representatives Foster, Herron, and Nageak (Democrats who caucus with the majority).
Rep. Tarr attempted to reinstate Senate Democrats’ family planning amendment, saying that many single women don’t have access to family planning and health care services like contraception and counseling. The increase in eligibility, Tarr said, would expand access of these services to upward of 11,000 women in Alaska, and could prevent over 500 abortions. Again, LeDoux rose in opposition, pointing out the the state already dedicates over $30 million in funding for public clinics. “Other than putting contraceptives in the drinking water,” LeDoux offered, “I mean, we’ve done just about everything that we can do as far as family planning services.”
Rep. Gara pointed out that the communities without public clinics vastly outnumber those that do have them.
After a break in deliberation, the family planning amendment failed, 18-22. The legislature postponed further action until last night, after their appeared to be wavering support, confusion about amendments, or a little of both. Speaker Chenault would later opine that the delay was in order to make sure that all members could be present to vote.
After a tumultuous Sunday afternoon-into-evening debate on the minimum wage bill, the House returned to SB49.
The final round of discussion largely circled around three perspectives. The more hesitant defenders of the bill repeated the refrain that the bill did not seek to adjudicate the morality or legality of abortion, but simply tried to define what circumstances deemed it “medically necessary,” and therefore eligible for Medicaid reimbursement.
The hard line perspective from the self-proclaimed “conservative caucus,” vocalized by Representatives Laura Reinbold (R-Eagle River) and Shelley Hughes (R-Wasilla), objected outright to the notion that abortion is a constitutional right. The procedure, they said, shouldn’t be subject to the use of public money. Even when found to be medically necessary by a physician.
“This is an elective procedure,” Rep. Hughes argued. “The women I know in Alaska are not victims. They are brave, they are independent, and they are smart, and they are dignified…. We’re big girls, we can take care of ourselves.”
“Equal protection does not mean that the government pays,” Ledoux added. “We have a right to travel, but that doesn’t mean the government buys us a ticket to Paris.”
The legislation’s opponents focused on two central themes. The first was that legislators are not doctors, and shouldn’t play them — neither on television nor in lawmaking. This was a theme often cited during committee hearings on the bill, throughout the session.
The second counterpoint hinged upon access. “Access,” according to Representative Geran Tarr, was the troublesome and likely unconstitutional component. “The courts have told us this, time and time and time again.”
If [an abortion is found to be] medically necessary, you can only be sure that that woman is experiencing deep sadness about that outcome. We should not interfere with a private decision that belongs between a woman and her doctor and her support network and her spiritual adviser. And that’s what this bill does. It interferes with that personal, private relationship, and it flies in the face of the equal protection of all women in Alaska.
Tarr would not change the final vote tally. The measure passed 23-7, and will return to the Senate tomorrow for concurrence before landing on the governor’s desk to be signed into law.
The vote itself, however, begins to tell an interesting story that could bear long lasting impacts.
Representative Hughes referenced the “War on Women” — a popular Democratic hashtag and campaign tool used to ridicule Republicans, painting them as uniformly old, white, male, and anti-women. In fairness to the branding, Republicans on the national and state stage have done little to assuage the label. Todd Akin stunned the nation with unenlightened thoughts on women’s reproductive realities in 2012. In Alaska, this year alone, the GOP has had to fend off Senator Fred Dyson’s (R-Eagle River) comments about using latte money for “exotic” condoms and Senator Pete Kelly’s unlikely effort to fight Fetal Alcohol Syndrome through use of bar bathroom pregnancy tests.
Sunday’s vote was a lot more problematic for the traditional “War on Women” narrative, where old white guys occupy all the lead roles.
Of the 12 women who serve in the Alaska House of Representatives, nine voted for SB49. That’s 75 percent. The men — of both parties — split evenly, 14-14, with Republican Representatives Alan Austerman, Bob Herron, Paul Seaton, and Ben Nageak (a bush Democrat who caucuses with the majority) crossing over.
Rep. Lindsay Holmes, an Anchorage Republican (a Democrat until last year) was the sole woman in the majority to cross over. Holmes had objected to the legislation when it passed through the House Finance Committee, lending her objection: “I’m not a doctor” before recommending that it not pass. She held true to those objections through to the floor vote.
Tonight might have been a new front in the evolution of the “War on Women” as both a campaign narrative and a policy divide. Does it exist? With more and more bills restricting women’s reproductive rights passing into law, I have a hard time making an argument that it does not.
But if last night’s vote on SB49 is any indication, it turns out the demographic waging “The War on Women” just got a truckload more complicated.
UPDATED: SB49 passed a vote of concurrence Monday morning, by a vote of 13-7. Senator Bert Stedman (R-Ketchikan) and Senator Dennis Egan (D-Juneau), who caucuses with the Majority, voted with the Democrats.