Legislation that would limit the circumstances in which public funds can be used to pay for abortions was introduced in the Senate on Monday, but the bill may have trouble standing up to court scrutiny.
Right now, if a low-income woman is receiving Medicaid, the state is required to cover the costs of her abortion if her doctor determines that the procedure is “medically necessary.” A bill sponsored by Senate Majority Leader John Coghill, a Republican from Fairbanks, would change that by defining the term to mean “a threat of serious risk to the life or physical health of a woman.”
There are a few aspects of the bill that could conflict with previous decisions of the state Supreme Court. For one, the bill purposefully excludes mental health exceptions to the funding ban. Sen. Pete Kelly, a Fairbanks Republican, is one of the co-sponsors of the bill. He explains why the bill was drafted to leave out psychological conditions from their medically necessary definition.
“It is the vague language that has been used to drive a Mack truck through it. We heard — not testimony — but we heard people tell us, who work in the industry that if someone claimed that they were stressed out about their pregnancy, that was enough for the mental health portion of the statute,” Kelly says.
During the last fiscal year, the state paid for approximately 500 abortions through Medicaid, but information on how many of those were for mental health reasons is not publicly available.
This isn’t the first attempt by anti-abortion legislators to restrict public funding for the procedure. A bill to limit Medicaid payments for abortion was introduced last year, and past budgets have also included language prohibiting those payments.
And every time these efforts have been made, the Alaska Supreme Court has found them unconstitutional. Kelly is prepared for that to happen again.
“You know, I’m convinced that the courts, because I don’t believe that they’re actually following the law — they’re trying to make law — I figure they’ll probably find some other way [to overturn] after this, but we just have to go through the exercise,” Kelly says.
The Court’s rationale for blocking these efforts is that they violate the state’s equal protection guarantees. Janet Crepps, an attorney for the Center for Reproductive Rights, breaks down the legal reasoning.
“If you pay for all medically necessary services for pregnant women, then you need to pay for all medically necessary services for women seeking abortion. And you can’t discriminate based on a women’s choice, as between carrying a pregnancy to term or seeking an abortion,” Crepps says.
She says that based on her experience arguing abortion-related cases in Alaska, she doesn’t expect the bill to hold up against Supreme Court scrutiny. With Republican majorities in both chambers of the legislature, the bill is being introduced in a favorable environment for passage.