Legislature(2013 - 2014)CAPITOL 120
03/29/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB173 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 102 | TELECONFERENCED | |
| += | HB 73 | TELECONFERENCED | |
| += | SB 22 | TELECONFERENCED | |
| *+ | HB 173 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 140 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 29, 2013
1:09 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Gabrielle LeDoux
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
Representative Charisse Millett
OTHER LEGISLATORS PRESENT
Representative Lora Reinbold
COMMITTEE CALENDAR
HOUSE BILL NO. 173
"An Act defining 'medically necessary abortion' for purposes of
making payments under the state Medicaid program."
- HEARD & HELD
HOUSE BILL NO. 102
"An Act relating to property exemptions for retirement plans,
individual retirement accounts, and Roth IRAs; relating to
transfers of individual retirement plans; relating to the rights
of judgment creditors of members of limited liability companies
and partners of limited liability partnerships; relating to the
Uniform Probate Code, including pleadings, orders, liability,
and notices under the Uniform Probate Code and the Alaska
Principal and Income Act, the appointment of trust property, the
Alaska Uniform Prudent Investor Act, co-trustees, trust
protectors, and trust advisors; relating to the Alaska Principal
and Income Act; relating to the Alaska Uniform Transfers to
Minors Act; relating to the disposition of human remains;
relating to the tax on insurers for life insurance policies;
relating to insurable interests for certain insurance policies;
relating to restrictions on transfers of trust interests;
relating to discretionary interests in irrevocable trusts;
relating to the community property of married persons; and
amending Rule 64, Alaska Rules of Civil Procedure, and Rule
301(a), Alaska Rules of Evidence."
- BILL HEARING CANCELED
HOUSE BILL NO. 73
"An Act relating to the commencement of actions for felony sex
trafficking and felony human trafficking; relating to the crime
of sexual assault; relating to the crime of unlawful contact;
relating to forfeiture for certain crimes involving
prostitution; relating to the time in which to commence certain
prosecutions; relating to release for violation of a condition
of release in connection with a crime involving domestic
violence; relating to interception of private communications for
certain sex trafficking or human trafficking offenses; relating
to use of evidence of sexual conduct concerning victims of
certain crimes; relating to procedures for granting immunity to
a witness in a criminal proceeding; relating to consideration at
sentencing of the effect of a crime on the victim; relating to
the time to make an application for credit for time served in
detention in a treatment program or while in other custody;
relating to suspending imposition of sentence for sex
trafficking; relating to consecutive sentences for convictions
of certain crimes involving child pornography or indecent
materials to minors; relating to the referral of sexual felonies
to a three-judge panel; relating to the definition of 'sexual
felony' for sentencing and probation for conviction of certain
crimes; relating to the definition of "sex offense" regarding
sex offender registration; relating to protective orders for
stalking and sexual assault and for a crime involving domestic
violence; relating to the definition of 'victim counseling
centers' for disclosure of certain communications concerning
sexual assault or domestic violence; relating to violent crimes
compensation; relating to certain information in retention
election of judges concerning sentencing of persons convicted of
felonies; relating to remission of sentences for certain sexual
felony offenders; relating to the subpoena power of the attorney
general in cases involving the use of an Internet service
account; relating to reasonable efforts in child-in-need-of-aid
cases involving sexual abuse or sex offender registration;
relating to mandatory reporting by athletic coaches of child
abuse or neglect; making conforming amendments; amending Rules
16, 32.1(b)(1), and 32.2(a), Alaska Rules of Criminal Procedure,
Rule 404(b), Alaska Rules of Evidence, and Rule 216, Alaska
Rules of Appellate Procedure; and providing for an effective
date."
- BILL HEARING CANCELED
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 22(FIN)
"An Act relating to the commencement of actions for felony sex
trafficking and felony human trafficking; relating to the crime
of sexual assault; relating to the crime of unlawful contact;
relating to forfeiture for certain crimes involving
prostitution; relating to the time in which to commence certain
prosecutions; relating to release in a prosecution for stalking
or a crime involving domestic violence or for violation of a
condition of release in connection with a crime involving
domestic violence; relating to interception of private
communications for certain sex trafficking or human trafficking
offenses; relating to use of evidence of sexual conduct
concerning victims of certain crimes; relating to consideration
at sentencing of the effect of a crime on the victim; relating
to the time to make an application for credit for time served in
a treatment program or while in other custody; relating to
suspending imposition of sentence for sex trafficking; relating
to consecutive sentences for convictions of certain crimes
involving child pornography or indecent materials to minors;
relating to the referral of sexual felonies to a three-judge
panel; relating to the definition of 'sexual felony' for
sentencing and probation for conviction of certain crimes;
relating to the definition of 'sex offense' regarding sex
offender registration; relating to the definition of 'victim
counseling centers' for disclosure of certain communications
concerning sexual assault or domestic violence; relating to
violent crimes compensation; relating to certain information in
retention election of judges concerning sentencing of persons
convicted of felonies; relating to remission of sentences for
certain sexual felony offenders; relating to forms for sexual
assault, stalking, and domestic violence protective orders;
relating to the subpoena power of the attorney general in cases
involving the use of an Internet service account; relating to
reasonable efforts in child-in-need-of-aid cases involving
sexual abuse or sex offender registration; relating to mandatory
reporting by athletic coaches of child abuse or neglect; making
conforming amendments; amending Rules 16, 32.1(b)(1), and
32.2(a), Alaska Rules of Criminal Procedure, and Rules 404(a)
and (b), Alaska Rules of Evidence; and providing for an
effective date."
- BILL HEARING CANCELED
HOUSE BILL NO. 140
"An Act relating to the information that must be included with
certain notices provided for the proposed adoption, amendment,
or repeal of a regulation."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 173
SHORT TITLE: RESTRICT MEDICAID PAYMENT FOR ABORTIONS
SPONSOR(s): REPRESENTATIVE(s) LEDOUX
03/15/13 (H) READ THE FIRST TIME - REFERRALS
03/15/13 (H) JUD, FIN
03/29/13 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
HARMONY SHIELDS, Staff
Representative LeDoux
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 173, on behalf of the sponsor,
Representative LeDoux.
SUSAN RUTHERFORD, M.D.
Redmond, Washington
POSITION STATEMENT: During hearing of HB 173, provided
suggestions.
CHAD HUTCHISON, Staff
Senator John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke on behalf of Senator Coghill, sponsor
of SB 49, companion to HB 173.
KEVIN G. CLARKSON, Attorney
Brena, Bell & Clarkson, P.C.
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 173, answered
questions.
NANCY BIENVENUE, Registered Nurse (RN)
Fairbanks, Alaska
POSITION STATEMENT: During hearing of HB 173, testified that
the definition of "medically necessary" is long overdue.
ACTION NARRATIVE
1:09:06 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:09 p.m. Representatives Keller, Lynn,
Foster, and LeDoux were present at the call to order;
Representatives Pruitt and Gruenberg arrived as the meeting was
in progress; and Representative Millett was excused.
Representative Reinbold was also in attendance.
HB 173-RESTRICT MEDICAID PAYMENT FOR ABORTIONS
1:11:02 PM
[Contains discussion of SB 49]
CHAIR KELLER announced that the only order of business would be
HOUSE BILL NO. 173, "An Act defining 'medically necessary
abortion' for purposes of making payments under the state
Medicaid program."
1:12:17 PM
REPRESENTATIVE LEDOUX, speaking as the sponsor of HB 173 which
is identical to SB 49, explained that she introduced HB 173
because she believes there should be a definition of a
"medically necessary abortion." She characterized HB 173 as a
fiscal bill not one of pro-life or pro-choice. She questioned
why state dollars should be spent on a procedure that isn't
health or life threatening. The bill, she opined, would bring
clarity to a previously [undefined] term.
1:14:41 PM
HARMONY SHIELDS, Staff, Representative LeDoux, Alaska State
Legislature, speaking on behalf of the sponsor, presented HB 173
as follows:
HB 173 has really been years in the making and comes
to us today after thorough, specific clinical review
from legal and medical experts. It is important to
note that we are not restricting women from having
abortions, we are simply defining what a medically
necessary abortion is. HB 173 is about bringing order
to disorder. We acknowledge that Alaska has a
constitutional guarantee to provide medically
necessary care to all qualified people of limited
means, including women requesting medically necessary
abortions. HB 173 will amend Alaska Statute 47.07 to
add a new section outlining a medical definition for
abortions under payment of Medicaid. As
Representative LeDoux had mentioned, why should our
tax dollars be spent on a medical procedure that is
not life threatening? If I wanted to go in and have a
cosmetic change done to my body, I'd have to pay for
it myself because it would not be considered medically
necessary. A few years ago I had injured my back and
having severe back pain that was so bad I could hardly
walk, I finally went in to the doctor. The doctor
told me that I needed an MRI [magnetic resonance
imaging], but because it wasn't deemed medically
necessary for this MRI ... I had to pay for the MRI
and through the results of the MRI it showed that I
had three fractures on my spine and then it was deemed
medically necessary and the treatment from then on out
was then covered under Medicaid. So, clearly for
other procedures out there we do have a definition
that is outlined, but for abortions we don't. And
with this bill we're not restricting women from having
abortions but rather we're putting a definition out
that what is deemed medically necessary for Medicaid
paid abortions.
Chairman and committee members I respectfully ask that
you support the bill.
1:17:14 PM
REPRESENTATIVE GRUENBERG, drawing from Ms. Shields back example,
related his understanding that the definition of "medically
necessary" controls access to the procedure.
MS. SHIELDS replied yes.
CHAIR KELLER then offered his understanding that the bill
specifies the definition of an elective abortion, but whether or
not that definition controls the situation isn't addressed by
the bill. By defining the term "elective" confusion is removed,
he said.
1:18:47 PM
REPRESENTATIVE LEDOUX emphasized that there are already
definitions for other procedures, as illustrated by Ms. Shields
example. Not everything is medically necessary as not
everything is life threatening or health threatening, she
stressed.
CHAIR KELLER again opined that defining the term doesn't control
whether or not someone is able to obtain the treatment rather
this is an issue regarding who pays the bills.
1:19:45 PM
REPRESENTATIVE GRUENBERG noted that for some people who can't
pay for the treatment, the only way to obtain the treatment is
by having Medicaid cover it. Therefore, by controlling whether
Medicaid covers the treatment controls whether those people
obtain the treatment.
The committee took a brief at-ease.
1:22:00 PM
SUSAN RUTHERFORD, M.D., relayed that she is board certified in
both [obstetrics and gynecology] OB/GYN and maternal fetal
medicine. She further relayed that her almost 35-year career
since medical school has included 12 years of active duty in the
U.S. Navy during which she practiced OB/GYN and maternal fetal
medicine; private practice; and has been a hospital medical
director of women's and children's services. In her almost 35
years of experience in almost exclusively high risk pregnancy
management, Dr. Rutherford said she only had one patient, at 16
weeks gestation, who she felt would have died if the pregnancy
wasn't ended. The case occurred when she worked for the U.S.
Navy and the U.S. Navy paid for the procedure, which she felt
was appropriate. Dr. Rutherford then pointed out that almost
all of the medical problems outlined in the bill wouldn't
require termination of pregnancy. Therefore, this list, she
opined, shouldn't be used to establish an expectation that
compels abortion. However, most of the specified medical issues
are associated with challenges requiring much careful
management, patient compliance, work, and potential risks to
mother and baby.
DR. RUTHERFORD stated her belief that although HB 173
accomplishes what is intended, she would change the medical list
slightly as follows. First, she suggested grouping the
diagnostic list in a medically logical manner such that similar
organ systems or disorders are listed together. Second, she
suggested deleting kidney infection from the list for which she
could find no justification in the medical literature or support
from colleagues in the profession. In fact, kidney infections
are the most common non-obstetric reason for hospitalization
during pregnancy. Third, she suggested adding a maternal
history of myocardial infarction, gestational trophoblastic
disease, and chorioamnionitis.
DR. RUTHERFORD then turned to Ms. Shields' back example and
pointed out that [an MRI] is a diagnostic test for which there
is time. Furthermore, there could be an appeal process. In
contrast, decisions about ending a pregnancy must occur in a
fairly short timeframe. Therefore, the last portion of the bill
specifying other physical disorders would need to establish a
fairly expeditious review process that would probably be
performed by maternal field experts of which there are several
in Anchorage. Dr. Rutherford then questioned whether the state
already has a law that specifies it will only pay for medically
necessary [abortions] or is the question before the committee
whether to establish such a law.
1:26:34 PM
CHAD HUTCHISON, Staff, Senator John Coghill, Alaska State
Legislature, speaking on behalf of Senator Coghill, sponsor of
SB 49, companion to HB 173, explained that Alaska does have a
broad and vague definition of "medically necessary" that the
sponsor believes is so broad that elective procedures are being
included under that definition. Therefore, the bill intends to
narrow the focus, specifically to limit it to physical
conditions pursuant to the recommended language by the Hyde
Amendment and the 2001 Planned Parenthood of Alaska case.
1:29:25 PM
DR. RUTHERFORD related her understanding that in the back
example the state has some medically necessary rules.
Therefore, if the desire is for all elective abortions to be
paid for to improve access, then that law should be changed.
Since there is a medically necessary law in Alaska, it's a
matter of developing a fair definition, she opined. From her
medical standpoint, she said she offered suggestions to make the
list one that is generally accepted in the medical community as
a reason to consider abortion, although most of the situations
are not life threatening.
1:30:30 PM
REPRESENTATIVE GRUENBERG noted the list seems to include
strictly physical ailments while any medical condition that
could potentially, because of depression, be life threatening is
absent. He then inquired as to Dr. Rutherford's opinion on
adding something concerning the mental health of the mother,
particularly if it can be shown there is a high likelihood that
death could result if the pregnancy weren't terminated.
DR. RUTHERFORD informed the committee that for the treatment of
depression during pregnancy, antidepressants are used as the
risk to the fetus is miniscule. She highlighted that untreated
depression can be dangerous whether the woman is pregnant or not
because the pregnancy specifically is not the reason for a
clinical depression requiring medication. She recalled a Senate
hearing on the companion bill during which Dr. Coleman presented
her research conclusions, which are the same as other
researchers around the world, that termination of a pregnancy
actually worsens the mental health status of the mother.
Although she acknowledged that one could find folks arguing the
other side, the evidence seems to be leaning toward [the
finding] that abortion will only worsen the situation. Dr.
Rutherford highlighted that the list in HB 173 includes an
"other" category. She then suggested that having the opinion of
an expert who treats high risk pregnancies prior to the approval
[of an abortion] would be a reasonable approach. In further
response to Representative Gruenberg, Dr. Rutherford confirmed
that she is suggesting that if there is evidence [of mental
illness, an abortion] should be determined on a case-by-case
basis through expert examination and testimony.
1:33:37 PM
MR. HUTCHISON explained that that there has been a definition of
"medically necessary," although no one has actually clarified
what it means. The 2001 Planned Parenthood of Alaska decision
didn't provide a clear answer either. He noted that he would
ensure that committee members' had the packet Senate members'
had to provide context for the bill. The statutory foundation
of HB 173 is taken from the federal Hyde Amendment, which is a
rider on the federal appropriations bill regarding the
limitation of federal funds for abortions. The most recent
executive order addressing the Hyde Amendment was attached to
the Patient Protection and Affordable Care Act in 2010.
According to President Obama, "It is necessary to establish an
adequate enforcement mechanism to ensure that federal funds are
not used for abortion services, except in cases of rape or
incest or when life of a woman will be endangered consistent
with the longstanding federal statutory restriction that is
commonly known as the Hyde Amendment." Therefore, any bill
proposed has to include the aforementioned foundational
standards such that exceptions for situations of rape, incest,
and when the pregnancy threatens the life of the mother.
1:36:15 PM
MR. HUTCHISON, in response to Chair Keller, informed the
committee that all states except for South Dakota are in
compliance with [the standards mentioned in the Patient
Protection and Affordable Care Act]. Alaska, he stated, needs
to base its law on the federal Hyde Amendment and the 2001
Planned Parenthood of Alaska decision as that's the legal box
within which it will operate. Furthermore, the Alaska State
Constitution provides added protection, according to the 2001
Planned Parenthood of Alaska case, which is incorporated in
HB 173 through the language referring to the physical health of
the mother. Many of the provisions were taken directly from
Alaska Supreme Court Justice Fabe's opinion, which is why they
are categorized the manner in which they are in the bill. As
long as the conditions are based on neutral criteria, directly
related to the healthcare program, the [bill] is safe in terms
of equal protection. Again, the bill only addresses medically
necessary abortions for which payment is received by Medicaid.
The [goal] is to determine the difference between elective
abortions and medically necessary abortions as the sponsor has
reasonable belief that both are now being [processed and paid
for by Medicaid] under the current definition of medically
necessary. However, elective procedures aren't supposed to be
covered by Medicaid. [Senator Coghill], he related, further
believes that a large portion of abortions are purely elective.
Mr. Hutchison clarified that Medicaid doesn't cover elective
procedures, including elective abortions. Medicaid, however, is
required to fund medically necessary procedures including
medically necessary abortions. The problem, he stressed, is the
lack of knowledge/understanding as to what's a truly medically
necessary abortion under the existing legal standards.
1:39:30 PM
MR. HUTCHISON said he would provide studies from the Guttmacher
Institute, which outlines the standards various states follow.
Currently, 32 states plus the District of Columbia follow only
the federal standard, which is essentially the Hyde Amendment.
Therefore, they allow funding of abortions in the event of life
endangerment, rape, and incest. Another 17 states, including
Alaska under the 2001 Planned Parenthood of Alaska case, fund
all or most medically necessary abortions. He then highlighted
the language on page 16 of the aforementioned case, as follows:
"The state having undertaken to provide healthcare for poor
Alaskans must adhere to neutral criteria in distributing the
care. It may not deny medically necessary services to eligible
individuals based on criteria unrelated to the purposes of the
public healthcare program." The aforementioned, he opined, is
all that's trying to be accomplished with HB 173 that is to have
neutral criteria based on recommendations by doctors as to
whether the application [of an abortion] is medically necessary.
MR. HUTCHISON explained that the sponsor believes elective
abortions are being covered under the existing definition of
medically necessary as supported by statistics from the Alaska
Bureau of Vital Statistics. He referred to a document from the
Alaska Bureau of Vital Statistics entitled "Induced Termination
of Pregnancy Statistics," which provides the number of induced
termination of pregnancy statistics for 2011. In 2011 there
were a total of 1,627 induced terminations of which 623 were
paid for by Medicaid, which equates to about 38.3 percent were
paid under Medicaid. In theory, those induced termination of
pregnancies should've only been cases in which the pregnancy was
the result of rape or incest or threatened the life of the
mother, otherwise known as medically necessary abortions.
1:42:31 PM
MR. HUTCHISON then referred to "TABLE 3. Percentage distribution
of women having an abortion, by their most important reason for
having the abortion, 2004 and 1987" of the Guttmacher
Institute's article entitled "Reasons Why U.S. Women Have
Abortions: Quantitative and Qualitative Perspectives." He
highlighted that the table relates that in 2004 4 percent of the
women stated a physical problem with health as the most
important reason for having an abortion. Those respondents who
cited being a victim of rape or incest as the most important
reason for having an abortion was less than 0.5 percent.
Therefore, according the Guttmacher Institute study the primary
reasons of rape, incest, or physical health only amounted to 4.5
percent of the abortions. In comparison, 38.3 percent of
[abortions in Alaska are funded by Medicaid, which should only
cover cases in which the pregnancy was the result of rape or
incest or threatened the life of the mother]. Mr. Hutchinson
said the aforementioned data illustrates a huge gap and that of
the 38.3 percent a lot of elective procedures are being covered.
This must be rectified, he emphasized, adding that is why the
bill is before the committee. The bill makes clear distinctions
between elective procedures and truly medically necessary
procedures, which is why the bill specifies the conditions. Mr.
Hutchison said, "And we can do it as long as it's based on
neutral criteria directly related to the health care industry
and that's what we anticipate we're going to do."
1:44:53 PM
REPRESENTATIVE LEDOUX recalled that there has been testimony
from Planned Parenthood representatives saying that anything a
woman wants is deemed medically necessary.
MR. HUTCHISON replied yes, adding that Planned Parenthood
representatives were unable to provide a clear answer as to the
definition of an elective procedure or an elective abortion,
which he opined was telling.
1:45:29 PM
REPRESENTATIVE PRUITT asked who currently determines what is
medically necessary and what guidelines are used.
MR. HUTCHISON answered that the determination is made with the
doctor and that will continue to be the case under the proposed
bill. With regard to the guidelines used, he deferred to the
department or physicians.
1:46:59 PM
KEVIN G. CLARKSON, Attorney, Brena, Bell & Clarkson, P.C., in
response to Representative Pruitt, concurred that the
determination of medically necessary is made by the doctor only.
However, there is no definition that the doctor uses other than
his/her own medical knowledge. The problem, he ventured, is
that one of the most prominent abortion providers in Alaska, Dr.
Whitefield, has testified under oath in three different
abortion-related cases in which he has said he defines medical
necessity to include any situation in which he determines the
woman's pregnancy is "an affront to her." Mr. Clarkson said to
Dr. Whitefield "an affront" to the pregnant woman means the
woman simply doesn't want to be pregnant as the pregnancy might
interfere with the woman's education plans, work plans, or
future independence. He opined that such abortions are elective
abortions and that Dr. Whitefield has expanded the definition of
medically necessary to such a broad extent that he certifies an
abortion as a medical necessity for any woman who comes to him
without private funding to pay for the abortion. In fact, in a
2002 deposition Dr. Whitefield could only think of about 10
times since 1985 in which he had failed to certify medical
necessity for a woman who came to him without private funding to
pay for the abortion so as to trigger Medicaid funding. The
aforementioned, he said, is why the definition of medically
necessary is needed.
MR. CLARKSON reminded the committee that Medicaid is a
cooperative program between the federal and state governments
and the Hyde Amendment limits how federal funding can be used to
pay for abortions. Medicaid only pays for medically necessary
care, and thus limiting Medicaid funding to medically necessary
care isn't a new or unique concept. In fact, the state's
regulations, 7 AAC 105.100, are consistent with the federal
program such that it specifies that the department will pay for
a service only if it's medically necessary. He offered his
understanding that the definition of medically necessary for an
abortion is being developed now because the practice of the
providers in which everything is being deemed medically
necessary. He highlighted that the definition must be within
the context of what the Alaska Supreme Court has said is
required under the Alaska State Constitution. With regard to
the 2001 Planned Parenthood of Alaska case, the Alaska Supreme
Court said that the Alaska State Constitution requires that a
pregnant women seeking medical care be treated similarly [to
others seeking medical care] if they are similarly situated.
Therefore, a pregnant woman carrying her pregnancy to term needs
medically necessary care for her pregnancy and the birth of her
baby. However, he opined, a pregnant woman who desires to have
an abortion isn't necessarily in need of medically necessary
care unless the woman has a medical condition or the [type of]
pregnancy makes the abortion medically necessary.
1:51:25 PM
MR. CLARKSON specified that the issue in the 2001 Planned
Parenthood of Alaska case was that a regulation forbidding the
state to pay, through Medicaid, for any abortions was adopted.
The problem with that regulation, he explained, was that it
eliminated all abortion funding through the Medicaid program,
including those abortions that were medically necessary. The
Alaska Supreme Court heard much expert medical testimony to
establish that there are some medical conditions that make
abortion medically necessary. Since the state Medicaid program
provides funding to those pregnant women who want to carry their
pregnancy to term, the program must also provide funding to
pregnant women who have a medical need for an abortion. The
court has not, however, defined medical necessity for an
abortion because defining it isn't a constitutional issue but
rather a medical issue. The court, in the 2001 Planned
Parenthood of Alaska case, instead simply summarized all of the
medical testimony it received regarding the various medical
conditions that would make an abortion medically necessary to
say that there are abortions that are medically necessary. The
question then becomes what is the state or the legislature
entitled to do with respect to defining medical necessity for an
abortion. According to the Alaska Supreme Court's decision, the
state has the ability to define medical necessity for abortion
as long as it includes neutral criteria, which the courts have
said medically necessary is a neutral criterion. To define
medical necessity in a neutral manner, one must use standard and
neutral medical terms and concepts, which is why the committee
is obtaining the medical testimony it is. This isn't a
definition of medical necessity from a group of politicians, but
rather the politicians are drawing upon medical expertise to
define the term. The aforementioned is acceptable from a
constitutional standpoint because the definition is related to
the purpose of a Medicaid program the purpose of which is to
provide medically necessary care. In conclusion, Mr. Clarkson
said that there is no constitutional impediment to the
legislature defining medical necessity for abortions that will
be paid for through the Medicaid program as long as the
legislature draws upon standard accepted medical knowledge in
doing so, which he opined the committee is doing.
1:55:13 PM
CHAIR KELLER related his understanding that Medicaid has an
interest in states only paying for procedures that are legal
under federal law. Therefore, he questioned why the federal
government wouldn't respond to [the situation in Alaska]. He
asked if the federal government would respond if a state were to
use Medicaid funding to pay for facelifts, sex change
operations, or other procedures that are clearly elective.
MR. CLARKSON, noting that he can't predict the federal reaction,
ventured that the Medicaid program is a cooperative program that
includes federal funds and matching state funds. Therefore, the
state has the ability to control how the state's money is used
within the Medicaid program and within certain parameters. Once
a state elects to participate in Medicaid, then it must comply
with Title 19 of the federal law. Under the federal law, there
are certain things for which the state has to pay including
pregnancy- and childbirth-related care. The Alaska Supreme
Court's ruling in 2001, he pointed out, was with regard to how
state monies in the Medicaid program will be used. The ruling
stated that because the state is required to pay for pregnancy-
and childbirth-related care using the federal monies, the state
monies have to be used for medically necessary abortion care.
"There is no way to reasonably read the Alaska Supreme Court's
2001 decision to require anything other than the payment for
medically necessary abortions. The court used the phrase
'medically necessary' 34 different times in its opinion. And
the court specifically said this case does not relate to
elective or non-medically necessary abortions," he stated.
1:58:29 PM
REPRESENTATIVE LEDOUX questioned why, after the 2001 Supreme
Court decision, the department administering Medicaid didn't
develop regulations similar to HB 173.
MR. CLARKSON related his understanding that although there were
some efforts to draft a regulatory definition of medically
necessary similar to what's proposed in HB 173 and SB 49, those
efforts didn't come to fruition for some reason. In further
response to Representative LeDoux, he said that in his opinion
there was no legal impediment to the department [drafting a
regulatory definition of medically necessary].
2:00:22 PM
NANCY BIENVENUE, Registered Nurse (RN), began by informing the
committee that she is the former chief executive officer of the
CareNet Pregnancy Center of the Tanana Valley, which is a faith-
based nonprofit that offers life affirming assistance to women
facing unplanned pregnancy. She further informed the committee
that since 1977 she has worked in women's health, including
labor and delivery and obstetrics. She then related personal
testimony that in 1975 she chose abortion for her first child
while in nursing school in Texas. Although she was prepared and
expected to pay for the abortion, she was told that the state
would pay for it. Ms. Bienvenue emphasized that elective means
elective and reminded the committee of the statistics Mr.
Hutchison provided earlier. The notion that a physician would
say that medically necessary is anything that's an affront to a
woman's life or health makes a mockery of the legal system and
sadly it has been happening since Roe v. Wade and Doe v. Bolton.
She opined that this definition of medically necessary is long
overdue as it should've been addressed at the inception of a
woman's right to an abortion. She related her experience with
women at the CareNet Pregnancy Center who chose an abortion and
receive Denali KidCare, although the women didn't make any
references to financial need.
2:04:56 PM
REPRESENTATIVE LEDOUX asked whether Dr. Rutherford can state
clearly a medically necessary abortion versus a non medically
necessary abortion.
DR. RUTHERFORD answered yes, there is that distinction. She
pointed out that a diagnosis code has to be attached to the
medical billing, which would reveal whether the abortion was
medical or elective. If there weren't medical records to
support a medically necessary abortion and it was being billed
under an erroneous diagnosis code, then the [physician] could be
prosecuted for fraud.
2:06:56 PM
CHAIR KELLER asked whether a woman could have an extreme
psychological condition for which a doctor could prescribe an
abortion. He further asked what conditions a doctor could use
in legal language to justify an abortion if the doctor
determines the psychological element is sufficient enough to
endanger the life of the woman.
MR. HUTCHISON offered his and Senator Coghill's belief that
mental and psychological conditions shouldn't be included in the
definition of medically necessary. The aforementioned is based
on testimony in the Senate from expert witnesses who have stated
that mental and psychological issues shouldn't be included in
the definition for a medically necessary abortion.
REPRESENTATIVE LEDOUX recalled that Dr. Rutherford's testimony
stated that there is research with respect to depression that an
abortion would exacerbate the [depression].
MR. HUTCHISON concurred and added that the Senate heard
testimony from Dr. Coleman regarding her studies on that issue.
[HB 173 was held over.]
2:09:16 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:09 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 140 ver. C.pdf |
HJUD 3/29/2013 1:00:00 PM |
HB 140 |
| HB 140 Proposed Amendment N.7.pdf |
HJUD 3/29/2013 1:00:00 PM |
HB 140 |
| HB 173 Sponsor Statement.PDF |
HJUD 3/29/2013 1:00:00 PM |
HB 173 |
| HB 173 Sectional Analysis.PDF |
HJUD 3/29/2013 1:00:00 PM |
HB 173 |
| HB 173 ver. N.pdf |
HJUD 3/29/2013 1:00:00 PM |
HB 173 |
| HB 173 Fiscal Note-HSS.pdf |
HJUD 3/29/2013 1:00:00 PM |
HB 173 |
| HB 173 Supporting Document Legal Memo.PDF |
HJUD 3/29/2013 1:00:00 PM |
HB 173 |
| HB 173 Letters of Support.PDF |
HJUD 3/29/2013 1:00:00 PM |
HB 173 |