News Abortion

Is the Alaska Health Commission Purposely Creating Constitutionally Bad Regulations For Medicaid Coverage of Abortions?

Robin Marty

When questioned, the Department of Health could not provide any resources supporting the constitutionality of their Medicaid coverage changes.

Back in July, the Alaska Department of Health and Social Services took public input on a proposal to change the process through which doctors who provide abortions to women on Medicaid submitted paperwork in order to be reimbursed for the service. Many reproductive rights advocates were concerned that at the very least the additional paperwork would violate a woman’s medical privacy and at the worst could be a backdoor attempt to do something the legislature had recently failed to do–redefine what constitutes a “medically necessary” abortion in order to limit access to abortion for poor and low-income women.

Now, according to the Anchorage Press, the move might not only be violating the state constitution, but they have learned the Department was likely aware of that fact and pursued it anyway.

Health Commissioner William Streur, on Aug. 21, sent a letter denying a request by the Anchorage Press to see any legal opinion his department received on a proposed regulation, which requires doctors to sign off on the medical necessity of abortion procedures before the state will pay for them.

Streur provided one opinion that warns the regulations are likely unconstitutional, though it was written by an attorney who works for the legislative branch, not the health department. Streur also described one memo that state would keep as confidential, but was written by a second lawyer who works for the legislative branch. Streur’s letter says the state has no other records that were “responsive” to the Press’s request. If Streur’s letter is to be believed, then his department set about writing new regulations sure to be challenged in court, without any legal advice that supports the changes.

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The legislative attorney finds that the regulation:

“restricts the phrase ‘medically necessary’ to medical care provided when the health of the mother is ‘endangered’ in situations where the woman is choosing to terminate a pregnancy without applying this same ‘endangerment’ restriction to medical care given when a woman chooses to continue a pregnancy.” 

According to the department, however, the changes are being made to better define which abortions would be paid for through federal funding, and which would be covered by the state. 

Then again, this is a governor who refused to accept money to increase children’s health care funding for the poor because a small portion of abortions could have been covered by the money as well, so it can be difficult to take such claims at face value.

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