State v. Planned Parenthood of Great Northwest, 021519 AKSC, S-16123

Docket Nº:S-16123
Opinion Judge:CARNEY, Justice.
Party Name:STATE OF ALASKA and THE COMMISSIONER OF THE DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellants, v. PLANNED PARENTHOOD OF THE GREAT NORTHWEST, Appellee.
Attorney:Stuart W. Goering and Margaret Paton Walsh, Assistant Attorneys General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellants. Susan Orlansky, Reeves Amodio LLC, Anchorage, Janet Crepps, Center for Reproductive Rights, Simpsonville, South Carolina, Autumn Katz, Center for Repr...
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. STOWERS, Chief Justice, dissenting.
Case Date:February 15, 2019
Court:Supreme Court of Alaska
 
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STATE OF ALASKA and THE COMMISSIONER OF THE DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellants,

v.

PLANNED PARENTHOOD OF THE GREAT NORTHWEST, Appellee.

No. S-16123

Supreme Court of Alaska

February 15, 2019

Appeal from the Superior Court of the State of Alaska No. 3 AN-14-04711 CI, Third Judicial District, Anchorage, John Suddock, Judge.

Stuart W. Goering and Margaret Paton Walsh, Assistant Attorneys General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellants.

Susan Orlansky, Reeves Amodio LLC, Anchorage, Janet Crepps, Center for Reproductive Rights, Simpsonville, South Carolina, Autumn Katz, Center for Reproductive Rights, New York, New York, and Laura F. Einstein, Planned Parenthood of the Great Northwest, Seattle, Washington, for Appellee.

Kevin G. Clarkson, Brena, Bell, & Clarkson, P.C., Anchorage, Steven H. Aden, Alliance Defending Freedom, Washington, D.C., for Amicus Curiae Alaska Physicians for Medical Integrity.

Jeffrey M. Feldman, Summit Law Group PLLC, Seattle, Washington, and Sara L. Ainsworth, Legal Voice, Seattle, Washington, for Amicus Curiae Legal Voice.

James J. Davis, Jr., Northern Justice Project, LLC, Anchorage, and Catherine A. McKee, National Health Law Program, Carrboro, North Carolina, for Amici Curiae Northern Justice Project, LLC and The National Health Law Program.

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION

CARNEY, Justice.

I. INTRODUCTION

We are again called upon to determine whether restrictions placed upon Alaska's Medicaid funding of abortions violate the Alaska Constitution. A 2014 statute and 2013 regulation re-define which abortions qualify as "medically necessary" for the purposes of Medicaid funding. The statute defines medically necessary abortions as those that "must be performed to avoid a threat of serious risk to the life or physical health of a woman from continuation of the woman's pregnancy" as a result of a number of listed medical conditions; the regulation is similarly restrictive. Planned Parenthood of the Great Northwest challenged both the statute and regulation as unconstitutional, and the superior court held that both measures violated the equal protection clause of the Alaska Constitution. The court reasoned that these measures imposed a "high-risk, high-hazard" standard on abortion funding unique among Medicaid services, and held that our 2001 decision striking down an earlier abortion funding restriction on equal protection grounds compelled the same result. The State appeals, arguing that the statute and regulation should be interpreted more leniently and therefore do not violate the Alaska Constitution's equal protection clause.

We affirm the superior court's decision. These measures cannot be interpreted as leniently as the State suggests, and their language compels a "high-risk, high-hazard" interpretation akin to that adopted by the superior court. This standard imposes different requirements for Medicaid funding eligibility upon women who choose to have abortions than it does upon women who choose to carry their pregnancies to term. The statute's and the regulation's facially different treatment of pregnant women based upon their exercise of reproductive choice requires us to apply strict scrutiny, and the proposed justifications for the funding restrictions do not withstand such exacting examination. We therefore conclude that the statute and the regulation violate the Alaska Constitution's guarantee of equal protection.

II. FACTS AND PROCEEDINGS

A. Medicaid Coverage In Alaska

Medicaid is a health insurance program for low-income individuals.1 It was created by the federal government, 2 which sets guidelines for eligibility and requires that certain benefits be provided.3 The federal government provides matching funds that subsidize states' costs in providing such health care.4 Individual states administer the program in compliance with federal requirements.[5] But each state decides whether to offer benefits in addition to those required by federal rules, and each state is authorized to limit services as long as such limits comply with federal standards.6

Alaska's Medicaid program funds "uniform and high quality" medical care for low-income individuals "regardless of race, age, national origin, or economic standing."7 Medicaid is administered by the Department of Health and Social Services (DHSS); it pays for medical services that are "medically necessary as determined by" statute, regulation, "or by the standards of practice applicable to the provider."[8]Although DHSS's regulations do not define "medically necessary," they state that Medicaid will only pay for services that are "reasonably necessary for the diagnosis and treatment of an illness or injury, or for the correction of an organic system, as determined upon review by the department."9

Doctors submit requests for Medicaid reimbursement of services provided to individuals enrolled in the Medicaid program. In Alaska DHSS usually provides Medicaid reimbursement to doctors without requiring prior authorization or a significant review of the claims. Where there is concern about cost-effectiveness, efficacy, fraud, waste, or abuse associated with certain treatments, doctors are required to provide additional documentation of the need for the treatment. In such situations doctors submit the documentation with their payment request. This has been the method used for abortion payments. For a third category of claims, such as surgeries and lengthy hospitalizations, prior authorizations are required. Virtually all claims, regardless of which type of processing they originally received, are subject to Medicaid's post-payment review processes, including audits.

B. The 1998 Regulation Addressing Medicaid Coverage Of Abortions

This case arises out of a series of legislative and regulatory measures and court decisions involving restrictions on Medicaid funding for abortions. In 1998 DHSS enacted a regulation that brought Alaska's Medicaid coverage of abortions in line with the federal Hyde Amendment.10 The Hyde Amendment, originally passed in 1976 by the United States Congress, prohibits the use of federal funds "to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest."11 It has been slightly modified over the years, but remains in effect and continues to limit federal funding for abortion to these two limited circumstances.12

In 2001 we affirmed the invalidation of the 1998 regulation based on the Alaska Constitution's equal protection clause, 13 noting that the regulation's denial of funding for "medically necessary abortions"[14] was a departure from "the Medicaid program's purpose of granting uniform and high quality medical care to all needy persons of this state."15 We explained that "a woman who carries her pregnancy to term and a woman who terminates her pregnancy exercise the same fundamental right to reproductive choice" and that "Alaska's equal protection clause does not permit governmental discrimination against either woman."[16] We applied strict scrutiny because the regulation "effectively deter[red] the exercise of the fundamental constitutional right to reproductive choice "by selectively denying a benefit to those who exercise[d]" that right.17 We held that the State had failed to present a compelling interest to justify the discrimination.18 We affirmed the superior court judgment striking down the regulation, effectively reinstating the general Medicaid requirement of medical necessity that had been in place before the promulgation of the regulation.19 As a result, the Medicaid program would pay for an abortion if it was "medically necessary" according to either the relevant Alaska Medicaid regulations or "the standards of practice applicable to the provider."20 This continued until DHSS and the legislature adopted the regulation and statute at issue in this case.

C. Planned Parenthood Challenges The 2013 Regulation And The 2014 Statute Regulating Medicaid Coverage Of Abortions

In 2013 DHSS amended the definitions related to Medicaid regulations to require a more detailed certificate to obtain state Medicaid funding for an abortion.21 The 2013 form22 required doctors to certify that an abortion was required by one of the two circumstances permitting federal abortion funding under the Hyde Amendment, or that, "in [his or her] professional medical judgment the abortion procedure was medically necessary to avoid a threat of serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily...

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