Planned Parenthood of the Great Northwest and the Hawaiian Islands (PPGNHI), the ACLU of Alaska, and the Center for Reproductive Rights (CRR) filed a lawsuit Wednesday challenging Alaska’s restrictions on second-trimester abortions.
Following the election of Donald Trump, who said repeatedly during the presidential campaign that Planned Parenthood should be defunded if it performs abortions, the organization vowed to “fight like hell to protect our rights.”
A press release announcing Wednesday’s lawsuit began, “The resistance starts now.”
Planned Parenthood is challenging an outdated Alaska statute that limits abortions to hospitals. It is also challenging regulations mandating second-term abortions be conducted only after a second consultation with a physician and near an operating room that is “immediately available” with blood on-hand in case a transfusion is necessary.
In 2015, Planned Parenthood provided 1,300 first-trimester abortions in Anchorage, Fairbanks, Soldotna, and Juneau, but it says legal restrictions in Alaska “force virtually all Alaska women seeking a second-trimester abortion to travel out of state for procedures that can be safely provided in Alaska.”
“For some women, the burdens of travel compel them to forgo an abortion entirely. For these women, the Restrictions operate as a total ban on abortion,” Planned Parenthood’s formal complaint reads.
“People in Alaska deserve the right to have access to the safest, highest quality health care, no matter what,” PPGNHI CEO Chris Charbonneau said in a press release. “These antiquated laws have a disproportionate impact on patients, those who already face far too many barriers, including people of color, women in rural areas, or people with low incomes. This cannot be what it means to be a woman in modern America.”
“To force a woman to leave Alaska to access healthcare is a blatant example of government overreach that turns personal, private decisions into political ones,” added ACLU of Alaska Executive Director Joshua Decker.
Planned Parenthood, the ACLU, and CRR also filed suits in U.S. District Court challenging a ban in North Carolina on abortion after 20 weeks and restrictions in Missouri that have left the state with only one licensed abortion facility, located in St. Louis, for 1.2 million women of reproductive age.
“We are going to fight back state by state and law by law until every person has the right to pursue the life they want, including the right to decide to end a pregnancy,” said Dr. Raegan McDonald-Mosley, Chief Medical Officer of Planned Parenthood Federation of America. “Individual rights and freedom go to the heart of who we are as a country, including the right to access safe and legal abortion.”
“We are a nation of laws,” agreed Center for Reproductive Rights CEO Nancy Northup, “and the Center is prepared to use the full force of the law to ensure women’s fundamental rights are protected and respected. We are proud to stand with our partners in challenging these unconstitutional measures and vow to continue the fight for women’s health, equality, and dignity[.]”
In contrast to the other suits filed Wednesday, the Alaska suit was filed in state Superior Court. Susan Orlansky of Anchorage firm Reeves Amodio LLC is local counsel.
Complaint: Abortion is Safe, Alaska Regulations Unnecessary
Alaska’s “Facilities Statute,” passed in 1970, limits abortions to hospitals “or other facilit[ies] approved for the purpose by the Department of Health and Social Services [DHSS]…”
After the U.S. Supreme Court decisions in Roe v Wade and Doe v Bolton, DHSS acknowledged it could not enforce the Facilities Statute during the first trimester, but continued to enforce it beyond the twelfth week of pregnancy, or 14 weeks after a woman’s last menstrual period (lmp).
Accordingly, the State Medical Board placed regulations in the Alaska Administrative Code restricting second-trimester abortion.
One regulation requires a second consultation with a physician prior to a second-trimester abortion.
“A mandatory consultation is not necessary to protect the health of women seeking second-trimester abortions,” Planned Parenthood says in the complaint it filed Wednesday. “Planned Parenthood physicians in Alaska are licensed by the State Medical Board. As such, they, like all licensed physicians in Alaska, are qualified to determine the care a patient needs, and can and do use their judgment about when a second opinion is beneficial to the care of a patient.”
A second regulation requires that blood and an operating room equipped for major surgery both be immediately available during a second- or third-trimester abortion.
Planned Parenthood says these regulations are unnecessary because abortions, typically done within ten minutes using a suction device, are safe. Even second-trimester abortions allow for the same method, albeit with more dilation of the cervix.
“Serious complications from a second-trimester abortion are rare, and among those rare complications, very few require a blood transfusion. Should a complication arise that necessitates the administration of blood products, the standard of care for abortion patients, as with other patients in an outpatient setting, would be transfer to a hospital,” Planned Parenthood writes.
Moreover, it says, the Alaska Blood Bank provides blood exclusively to hospitals, not outpatient clinics.
“Those policies make sense because any blood products provided to an outpatient clinic like Planned Parenthood would be wasted because they would not be used and would have to be discarded and replaced,” the complaint reads. “Thus, the Blood Products Regulation does not advance the health of women seeking abortion, and it also undermines public health by wasting a critical but limited medical resource.”
This language and the argument that abortions are relatively safe echo the U.S. Supreme Court’s decision earlier this year in Whole Woman’s Health v Hellerstedt. In that case, the Court struck down portions of a Texas law requiring abortion clinics to be outfitted like surgical centers, calling the regulations an “undue burden” on women.
Planned Parenthood, ACLU, and CRR all pointed to Whole Woman’s Health and a July Alaska Supreme Court decision striking down a parental notification requirement, suggesting they feel the decisions provide legal support for their suits.
Alaska Family Council President Jim Minnery led an unsuccessful campaign to vote out Alaska Supreme Court Justices Peter Maassen and Joel Bolger after they joined the majority opinion in July.
Planned Parenthood: State Violates Privacy, Due Process, Equal Protection
Planned Parenthood argues that the second-trimester abortion restrictions on the books in Alaska are vague, leaving physicians unsure as to what is prohibited.
How close do operating rooms need to be to be “immediately available?” Does the mandatory second physician consultation have to be in person?
DHSS told Planned Parenthood last year that it could neither approve nor deny its request to perform second-trimester abortions because DHSS has not adopted its own regulations to that effect.
“The Department’s inaction must be construed as a de facto denial, which arbitrarily prevents Planned Parenthood and its physicians from providing second-trimester procedures,” Planned Parenthood’s complaint reads.
In September, Planned Parenthood wrote to the State Medical Board, making the same case laid out in its legal complaint: the second-trimester abortion restrictions are unnecessary and unconstitutional.
The State Medical Board did not respond, leaving Planned Parenthood stuck in a “catch-22.”
Because the vague regulations written by the Board leave its physicians open to “potential arbitrary and/or selective enforcement” and because DHSS has not adopted its own regulations governing second-trimester abortions, Planned Parenthood says its due process rights have been violated.
Planned Parenthood further alleges that the blood and operating room requirements in the Alaska Administrative Code violate the equal protection clause of the Alaska Constitution because there are no similar requirements for any other outpatient procedure.
The suits in Missouri and North Carolina were filed in federal court, but the Alaska Constitution has an additional protection that the U.S. Constitution does not: the right to privacy.
The Alaska Supreme Court has repeatedly upheld that reproductive choice falls under the umbrella of the privacy clause. Hence, Wednesday’s complaint was filed in state court.
Planned Parenthood notes that in Seattle and Meridian, Idaho, it performs second-trimester abortions in the same facilities where it provides first-trimester abortions. Without Alaska’s restrictions, it could do the same in Alaska.
Alaska regulations therefore violate the right to privacy and “burden the fundamental right to reproductive choice without further compelling state interests by the least restrictive means,” the complaint reads.
Consequently, many Alaskans seeking second-trimester abortions will likely have to travel to Seattle and Meridian, delaying the procedure.
“While abortion is a safe procedure, the risks increase with advancing gestational age. The delays caused by the Restrictions therefore adversely affect, rather than advance, women’s health,” says Planned Parenthood.
The case has initially been assigned to Superior Court Judge Catherine Easter.