Legislature(1997 - 1998)
01/30/1998 09:00 AM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 181 - ABORTION COSTS: GENERAL RELIEF/PARENTS
SENATOR WARD moved to adopt CSSB 181(HES), a version identical to
CSHB 234(FIN). SENATOR ELLIS objected and asked for an explanation
of the new version.
CHAIRMAN WILKEN asked SENATOR WARD if his motion addresses version
L of CSHB 234(FIN). SENATOR WARD affirmed that was correct.
SENATOR WARD explained the proposed committee substitute
establishes a logical priority within the funding mechanism for
General Medical Relief Program funds. Abortion, an elective
procedure, would be placed at the bottom of the list. In his
opinion the bill will accomplish two things: it will provide more
funding for eyeglasses and other services and will reduce the
number of elective abortion procedures.
CHAIRMAN WILKEN noted the question on the table was whether to
substitute the house bill for SB 181. SENATOR WARD said in
revisiting this issue, he decided the house bill is
straightforward, fits into a more logical state program and
accomplishes what he wanted to do.
SENATOR ELLIS asked Senator Ward what his original bill did.
SENATOR WARD said his original bill contained various mechanisms
for individuals, both male and female, to reimburse the General
Medical Relief Program for elective abortions. By placing elective
abortions at the bottom of the priority list, the bill should
increase the availability of eyeglasses and dental services for
clients, and reduce the number of abortions performed.
CHAIRMAN WILKEN asked if objection was maintained to adopting CSSB
181(HES). SENATOR ELLIS maintained his objection because he felt
a more accurate explanation of how the list of priorities works
should be given. SENATOR WARD said the results are exactly as he
wanted them to turn out if CSSB 181(HES) is adopted.
A roll call vote was taken with Senators Leman, Green, Ward, and
Wilken voting "yea," and Senator Ellis voting "nay." CHAIRMAN
WILKEN noted the motion to adopt CSSB 181(HES) carried.
Number 244
REPRESENTATIVE MARTIN, sponsor of HB 234, thanked Senator Ward for
proposing the committee substitute that corresponds to work being
done in the House. The bill decreases many problems discussed by
the Administration last year. During those discussions, the
subject of the male who is responsible seldom arose so he
originally attempted to design a program in which users pay part of
the cost of medical services provided by the government. In the
case of abortions, a lien would have been placed on permanent fund
dividend checks, especially on those of the males responsible. That
approach was eliminated because the fiscal note estimated a cost of
$5 million. The fiscal note for the new approach of placing
abortion services at the bottom of the General Medical Relief
Program priority list of services is $1 million.
REPRESENTATIVE MARTIN said the Administration has constantly
belittled the Legislature during the last three or four years for
inadequately funding the General Medical Relief Program, thereby
preventing children from receiving eyeglasses and seniors from
receiving emergency and dental services. As he looked into the
line item amounts, he wondered why the $2.8 million appropriation
was used up so quickly when that amount was in addition to the 50
percent State contribution to the Medicaid/Medicare programs. He
then found out that abortions provided by that program are not
dependent on a person's economic status. Last year 843 free
abortions were provided under that program, yet there were not
enough funds to pay for other services. The cost of 800 abortions
could provide 6,000 pairs of eyeglasses. CSSB181(HES) solves the
problem by making abortion the lowest priority use of the monies
available. He criticized the argument that the State has a
constitutional obligation to pay for abortions, and noted that
court decisions in New York and North Carolina have established
that the constitutional right involved does not guarantee
government payment for abortions.
Number 298
SENATOR ELLIS asked Representative Martin about his statement that
there are no income guidelines related to the Medicaid eligibility.
REPRESENTATIVE MARTIN said that was correct; those guidelines are
not imposed until after the person becomes a welfare recipient. He
said one can go to the same clinic and self-pay or get a voucher
from the State. SENATOR ELLIS asked how there can be no income
guidelines associated with the Medicaid program. REPRESENTATIVE
MARTIN corrected himself, and said Medicaid does have guidelines,
the General Medical Relief Program does not for abortions. He
explained Medicaid will not cover free abortions unless the
mother's life is at risk, or the pregnancy is the result of rape or
incest.
JENNIFER RUDINGER, Executive Director of the Alaska Civil Liberties
Union (ACLU), testified via teleconference from Anchorage. The
ACLU's mission is to preserve and defend the guarantees of
individual liberties found in the Bill of Rights and Alaska
Constitution. The ACLU asks the committee to take no action on SB
181 because it is blatantly unconstitutional under Alaska's
Constitution. In November, the Alaska Supreme Court decided, in
the Valley Hospital v. Mat-Su Coalition for Choice case, that the
right to choose to terminate a pregnancy is a fundamental right
under the privacy clause in the Alaska Constitution. The Board of
Directors at Palmer Valley Hospital, a non-profit corporation which
receives substantial public funding, voted to prohibit abortion
services from being provided at the hospital. The Alaska Supreme
Court found Valley Hospital's actions in violation of a woman's
fundamental right to an abortion and stated:
We are of the view that reproductive rights are fundamental
and that they are encompassed within the right to privacy,
expressed in Article 1, Section 22, of the Alaska
Constitution. These rights may be legally constrained only
when the constraints are justified by a compelling state
interest, and no less restrictive means could advance that
interest. These fundamental reproductive rights include the
right to an abortion. The scope of a fundamental right to an
abortion that we conclude is encompassed within Article 1,
Section 22, is similar to that expressed in Roe v. Wade. We
do not, however, adopt as Alaska constitutional law, the
narrower definition of that right, promulgated in a plurality
opinion in Casey [ph].
MS. RUDINGER commented the State will be required to show a
compelling state interest for singling out these specific services
for de-funding. While the government need not create a medical
assistance program in the first place, once it has done so it must
proceed with neutrality in regard to the exercise of a
constitutional right. She urged committee members to vote against
SCSSB181(HES).
HUGH FLEISCHER, testifying on his own behalf, concurred with the
previous speaker's comments regarding the constitutional problems
with the bill. He challenged the sponsor of this legislation to
produce the name of one child who did not receive eyeglasses
through the General Medical Relief Program last year because
abortions took priority. He believed that rationale is bogus and
said it will be most unfortunate to have to spend State time and
money on litigation over this bill if it becomes law.
Number 389
SENATOR WARD said he could not produce the name of a child who
couldn't receive eyeglasses last year, but said his subject is
about saving the life of an unborn child.
PAULINE UTTER, representing the Abortion Rights Project, asked the
committee to take no action on this legislation because it is a
back door way to remove a woman's constitutional right to choose,
which was eloquently restated in the Valley Hospital case. Also,
if passed, this bill will clog up the Court System.
ROBYN SMITH testified in opposition to CSSB 181(HES) for the
following reasons. Although no one likes the concept of abortion,
all agree that the later an abortion occurs within a pregnancy, the
more difficult it is. One of the most common reasons abortions
occur after the first trimester is because it is difficult to
obtain funding. When abortions are delayed until the second
trimester, the mother's health is at risk. When an unintended
pregnancy occurs, the mother is more likely to seek prenatal care
after the first trimester, or to not obtain care at all, creating
a high risk pregnancy. Those mothers are more likely to expose the
fetus to harmful substances, and the child is more likely to have
a low birth rate. She read statements from the Institute of
Medicine report, entitled The Best Intentions, which details the
health and social consequences of unwanted pregnancies. She stated
if a woman needs public funds to have an abortion, she will need
public funds for a delivery, and often those deliveries are
complicated because of poor prenatal care. Ms. Smith said the
State is trying to get people off welfare but is not providing an
adequate support system.
Number 465
CHAIRMAN WILKEN read a correction, provided by Representative
Martin to his testimony, on the point of financial qualifications
for free abortions. Women under 18, living at home, do not need to
have their parents' or guardians' income considered to qualify and
in a medical emergency, a woman may apply for qualification after
the fact.
SID HEIDERSDORF, representing Alaskans for Life, made the following
comments. Alaskans for Life supports any efforts to reduce,
restrict, or eliminate state involvement in the abortion business.
The present policy of paying for abortions for women on welfare is
terribly misguided. So many people find this procedure repugnant,
it seems the State would remain neutral on the issue. He expressed
concern that bureaucrats might be able to work around the
requirements of SB 181, and continue to consider abortions a
priority procedure. This issue is controversial because it is a
life and death issue, and therefore deserves special consideration
in terms of the State coming down on the side of promoting life,
not death. Abortion proponents always discuss the issue without
mentioning the life of the child, which is like discussing slavery
without mentioning the plight of the slave.
MR. HEIDERSDORF said the argument that paying for abortions will
save money over the long term is poor policy and is based on the
premise that it is better for some babies to live than others. On
the issue of abuse, abortion leads to abuse because it breaks down
the social taboo against harming the defenseless. He felt it is an
insult to say that the poor are more likely to harm their children
because they are poor. Mr. Heidersdorf concluded by saying that
State policy should help both the mother and child.
SENATOR ELLIS asked Mr. Heidersdorf if he had any suggestions for
changes to the bill. MR. HEIDERSDORF said he did not.
KRISTEN BOMENGEN, Assistant Attorney General, focused her comments
on the legal and constitutional issues presented by CSSB 181(HES).
This bill has the effect of eliminating all abortion funding except
in situations when the life of the woman is at risk. The Alaska
Constitution provides greater privacy protection than is generally
construed under the federal constitution. That extra protection
makes it less useful to focus on court decisions made in states
which rely on a federal interpretation of privacy rights, such as
North Carolina, and more useful to focus on states that offer
greater privacy protection, such as Massachusetts, West Virginia,
Connecticut and Minnesota. In those states, courts that have
addressed cases involving abortion funding have generally decided
that when the state decides to offer pregnancy related services, it
must do so in a constitutionally-neutral manner that does not
infringe on the constitutional rights of the citizens. While
states are not obligated to pay for the exercise of a
constitutional right as such, once it chooses to dispense funds, it
must do so in a non-discriminatory manner.
A Minnesota Court recently addressed the question of whether the
State can fund childbirth related health services without funding
abortion related services, thus excluding some women from receiving
benefits solely because they make constitutionally protected health
care decisions with which the State disagrees. The Court
recognized that the woman's right to choose, whether to terminate
or continue a pregnancy without interference from the state, was
protected. In that case the State was required to fund any
medically necessary or therapeutic abortions under their Medicaid
and General Medical Relief Programs. The Alaska Supreme Court's
November decision in the Valley Hospital case was based on the
analysis of a fundamental right. The Department of Law does not
believe that court will uphold this bill as constitutional.
Number 582
SENATOR ELLIS asked Senator Ward if his intent is to eliminate all
funding for abortions with this bill. SENATOR WARD said it will
not cut off all because federal funds will be available. He noted
he disagrees with the Alaska Supreme Court's decision and with Ms.
Bomengen's analysis, and believes the Legislature has a
responsibility to eliminate public funding for abortions which is
his underlying purpose. He believes this particular bill will be
upheld by the Alaska Supreme Court.
TAPE 98-6, SIDE B
NANCY WELLER, Division of Medical Assistance, Department of Health
and Social Services (DHSS), reviewed several items in the original
version of HB 234 that were removed from the committee substitute.
HB 234 required state recovery of the cost of an abortion and would
have required DHSS to track people throughout their lives in order
to garnish money from them, perhaps from an inheritance of from
their own estate. A provision requiring PFD garnishment required
fetal tissue testing to establish paternity. Fetal tissue testing
can be done in Alaska, at a cost of under $1,000. This was
eliminated because DHSS does not have the ability to coerce the
father of the unborn child to come in for tissue testing to prove
paternity. Also the original Section 2 provided that the woman who
signed the application for assistance was assigning the right of
any other person who might be potentially liable for the
expenditures. DHSS questioned whether it is legal to assign the
rights of payment to another unrelated party.
MS. WELLER said DHSS has not paid for any services above number 7
on the existing priority list since 1986, when funding for the
General Medical Relief Program was substantially reduced. There is
some confusion over the priority listing for the General Medical
Relief Program, which is in AS 47.25.205, and the priority list for
the Medicaid program, which is in AS 47.07.035. The Medicaid
program is what Senator Ward referred to when he spoke about dental
services and eyeglasses. DHSS never eliminated those services for
children, and cannot under federal law. In 1994, when the
Legislature directed DHSS, through legislative intent written in
the budget, to eliminate the top ten services on the Medicaid
priority list, those services were eliminated for adults only.
Intent language in the bill last year added those services back;
those regulations went into effect October 12, 1997. Regarding
program eligibility, services are available to those found to be
income eligible for the Medicaid program. People can apply for
eligibility after the fact, and DHSS does pay unpaid medical bills
if the applicant was income eligible. If minors apply for services
and state they do not want their parents to know, they are not
required to provide their parents' income information during the
income eligibility process.
Number 531
SENATOR WARD asked if, CSSB 181(HES) moves elective abortions down
the list, more funds will be available to pay for services higher
on the list, and if so, which items will be funded. MS. WELLER
answered that a recent federal Medicaid policy change eliminated
funding for legal aliens, so a large increase in expenditures for
the General Medical Relief Program has occurred for only the
covered services which include hospital stays, physician services,
prescription drugs, and laboratory-related tests. DHSS will be
requesting a $1.6 million increase to continue the existing
coverage and will not be able to move up the list.
SENATOR WARD asked if Ms. Weller was saying DHSS will be able to
fund more of the higher priorities under this legislation. MS.
WELLER said no because the General Medical Relief Program is
underfunded at this time.
SENATOR LEMAN asked if DHSS has any record of the number of women
who have more than one abortion in one year. MS. WELLER said DHSS
does not have that information. It has information on abortion
expenditures for each of the last several years, by age and place.
SENATOR ELLIS asked if DHSS keeps track of the number of abortions
that are purely elective and those that are medical necessities.
MS. WELLER answered DHSS does have forms sent in by doctors
claiming federal medicaid funds when the pregnancy is life
threatening to the mother but those are rare because of the
paperwork involved and because that defense is not necessary since
abortions are paid for with state funds.
SENATOR ELLIS asked if DHSS keeps no information on abortion
procedures performed for medically necessary reasons. MS. WELLER
said that was correct.
SENATOR WARD commented that the original intent of this bill was to
garnish the father's permanent fund dividend, to cover the cost of
the abortion.
Number 458
RON KREHER, Division of Public Assistance, discussed the impact
this bill will have on other public assistance programs. Regarding
eligibility for general relief medical in particular, this is a
safety net program intended to serve the poor in the State of
Alaska. The financial eligibility criteria are so low that truly
only the indigent receive assistance. An individual's monthly
income cannot exceed $300, and maximum resource limit is $500.
Based on the Division of Medical Assistance's projection of 295
individuals who would remain on Medicaid if they were not able to
terminate an unwanted pregnancy, the Division of Public Assistance
has estimated that approximately 166 of those individuals would
become dependent upon temporary assistance benefits. The Division
of Public Assistance has projected a cost of $720,000 in ATAP
benefits to cover those families. That estimate does not factor in
other supportive services that will be needed, such as child care
and transportation.
TOM GORDY, Executive Director of the Christian Coalition of Alaska,
testified in support of CSSB 181(HES). He noted his wife, who
works at an optometrist's office, had to turn away two people this
year who needed eyeglasses for their children because they could
not pay. One of those people called the Governor's Office, whose
staff called the optometrist for a week to get him to provide the
glasses for free. Mr. Gordy said on the same day the children were
turned down, three abortions were performed, so three to five
people lost. If this bill had been enacted, those three to five
would have been better off. This bill sets a priority and helps
those who genuinely need help, not those who elect to have a
problem. This bill is moderate; many proponents of the right to
choose do not believe abortions should be government funded.
Regarding the right to privacy argument and the need for the state
to prove a compelling interest in de-funding abortion procedures,
Mr. Gordy said people have a right to prosthetic devices, but they
cannot get them because the State does not have the money. He did
not believe the Alaska Supreme Court will decide against this bill
if it is enacted.
SENATOR LEMAN stated this bill is common ground that most people
believe makes sense. He asked Mr. Gordy if he agreed. MR. GORDY
said statistics he recently read showed the majority of the people
in this country do not support public funding of abortion; only
those to the extreme left support it.
SENATOR ELLIS asked Mr. Gordy to elaborate on his last comment
about the extreme left. MR. GORDY said this bill deals primarily
with elective abortion. He said his eyesight deteriorated rapidly
between the ages of 19 and 20, but that is not a problem he chose
to have, whereas a person who chooses to have sex when they can't
afford to have a baby or an abortion cannot afford to have sex. He
believes all children are a gift from God, and people choose to see
the pregnancy as a problem.
SENATOR ELLIS asked if the problem he referred to is the pregnancy
or the decision. MR. GORDY answered the problem is whether one
views the pregnancy as a problem or as a need.
SENATOR WARD moved CSSB 181(HES) out of committee with individual
recommendations and its accompanying fiscal notes. SENATOR ELLIS
objected. The motion carried with Senators Green, Ward, Wilken and
Leman voting "yea," and Senator Ellis voting "nay."
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