Legislature(2013 - 2014)CAPITOL 120
04/01/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB173 | |
| HB3 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 173 | TELECONFERENCED | |
| HB 3 | |||
| + | TELECONFERENCED |
HB 173 - RESTRICT MEDICAID PAYMENT FOR ABORTIONS
1:09:54 PM
CHAIR KELLER announced that the first 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."
CHAIR KELLER mentioned that members' packets now contain
possible amendments.
REPRESENTATIVE GRUENBERG noted that members' packets now contain
a memorandum from Legislative Legal and Research Services dated
April 1, 2013.
1:11:15 PM
JENNIFER ALLEN, Director, Public Policy, Planned Parenthood
Votes Northwest (PPVNW), referring to a PowerPoint presentation
titled, "The Case for Opposing House Bill 173: Protect Freedom,
Privacy and Fairness for All Alaskan Women", requested that the
committee oppose HB 173 in order to protect the freedom and
privacy of all Alaskan women - regardless of income - in making
their own reproductive decisions in consultation with their
physicians. After speaking briefly about Planned Parenthood of
the Great Northwest (PPGNW), she noted that the term, "elective
abortion" is not used at PPGNW because it's been imbued with a
great deal of judgment, and is typically used to demean and
shame women who make the decision to end their pregnancies;
PPGNW instead uses the terms, "medically necessary" and, "not
medically necessary." The difficulty with providing a
definition for [such terms], however, is that only a trained
physician, in consultation with the individual woman and taking
into account her unique set of health circumstances, can
determine what is medically necessary. And it's [this practical
limitation] that speaks specifically to the reason why PPGNW
opposes HB 173. Planned Parenthood of the Great Northwest, she
relayed, worked extensively with the Department of Health and
Social Services (DHSS) on its new regulation adding an extra
layer of certification in order to ensure that all Medicaid-
funded abortions occurring in Alaska are medically necessary.
And although PPGNW doesn't "love" this new regulation, it does
appear to be constitutional, she remarked.
MS. ALLEN said it is therefore not clear why this new regulation
"isn't being allowed to work." In response to questions, she
declined to speak to whether she views all abortions as
medically necessary, based on the fact that she herself isn't a
physician; offered her understanding that there haven't been any
requests for payment of public funds for an abortion wherein
there has been any reason to suspect that the physician made an
inappropriate determination with regard to the medical necessity
of the abortion; and pointed out that physicians make medical-
necessity determinations on a case-by-case basis, because each
patient's situation and health issues are unique. Requiring
physicians to make such determinations based on a statutory list
is never going to be an effective way to address women's health
issues, she warned.
1:24:21 PM
MS. ALLEN relayed that the PPGNW is asking the committee to
oppose HB 173 because it could put women's health at risk by
causing them to deter or delay seeking abortion care, thereby
increasing the risk that a health-threatening pregnancy would be
continued or not terminated until later in the pregnancy;
because decisions regarding whether to carry a pregnancy to term
should be made by the women themselves in consultation with
their physicians; and because the Alaska Supreme Court has
already addressed the issue and ruled that the Alaska State
Constitution requires that a women's pregnancy decisions -
whether to terminate the pregnancy or carry it to term - be
given equal protection under the law. On the latter point, she
added that this means that abortion services must be provided to
low-income women so that their choices regarding their
pregnancies are not restricted by their economic status;
furthermore, the definition of the term, "medically necessary
abortion" may not be further limited without it resulting in
discrimination against women who rely on government for
healthcare.
MS. ALLEN remarked that this really is a simple matter of
fairness, and predicted therefore that should HB 173 pass, it
would likely become the subject of litigation, which will in
turn cost the state. Again, there is no evidence of
misapplication of the existing [Medicaid] medical-necessity
standard, and thus HB 173 appears to be a solution in search of
a problem - at high cost to the state. In conclusion, she urged
the committee not to move HB 173 forward.
1:27:19 PM
LAURA EINSTEIN, Chief Legal Counsel, Planned Parenthood of the
Great Northwest (PPGNW), in response to questions and comments,
explained that Alaska's Medicaid rules stipulate that the
medical necessity of a procedure shall be determined by a
physician's standards of practice. Medicaid trusts Alaska's
physicians to evaluate their patients' needs and provide
appropriate care. In other words, for all procedures, what
constitutes a medically-necessary procedure is determined by the
standards of practice of each physician. House Bill 173 would
establish something completely different just for abortion
procedures - something outside the norm of what is required by
Medicaid for any other procedure. Again, because each patient's
situation and health issues are unique, physicians in Alaska -
whether they provide abortion services or not - make
determinations regarding whether a certain procedure is
medically necessary for a particular patient on a case-by-case
basis.
1:31:55 PM
CLOVER SIMON urged the committee to vote no on HB 173, opining
that only physicians can determine what procedures are medically
necessary, and that decisions related to pregnancy should be
left up to the pregnant women themselves in consultation with
their physicians. Such determinations and decisions should not
be being made by politicians. Offering her understanding that
members have already been provided with information illustrating
that HB 173 is unconstitutional and that the Alaska Supreme
Court has already made determinations regarding abortions paid
for with public funds, she opined that HB 173 would do more than
just define terms but would instead also impact the lives and
families of women facing unintended pregnancies. Everyone in
Alaska is protected by the Constitution regardless of his/her
socio-economic status, and it is therefore not acceptable to
single out families that are poor. In conclusion, she provided
comments regarding what she referred to as Alaska's continued
higher-than-average rates of unintended pregnancies, which
disproportionately affect minority women and women of low
income.
1:34:59 PM
EILUNED A. HOGENSON, M.D., Obstetrician/Gynecologist (OB/GYN),
mentioning that should the bill pass, her practice would be
affected, said she would be testifying against HB 173. She
doesn't perform "elective" abortions but does perform medically-
indicated abortions, she noted, and offered her belief that
HB 173 would create more bureaucracy within the state's Medicaid
program, would be difficult to [comply with], and may prevent
women with limited funds from accessing necessary medical care.
In a lot of ways, the bill is both too vague to accomplish its
goal, and oddly specific, and the bill's list of medical
conditions seems quite arbitrary. Why does it enumerate [only
some] dangerous medical conditions if Medicaid would allow other
such conditions to be included? Furthermore, the bill lists
"seizures" "convulsions", "eclampsia", epilepsy", and "status
epilepticus", but these could all be covered under the term,
"seizures", and the bill lists "pulmonary hypertension" that
impairs "a major bodily function", but the concern with [that
language] is that such a problem brings with it a 40 percent
chance of maternal death during pregnancy or delivery, not just
a disability. It's almost as if no medical professional was
consulted during the drafting of the bill, she observed, and
pointed out, as another example, that the bill doesn't list the
many serious maternal cardiac and vascular conditions that can
be fatal or dangerous.
DR. HOGENSON explained that obstetricians spend four years as
residents studying the serious health conditions that accompany
pregnancy, and expressed concern that it just isn't possible to
create a comprehensive list of such conditions. Instead,
physicians must look at the patient in front of them and make
determinations of risk based on that individual patient, who
will then decide what to do. Furthermore, the bill doesn't yet
define what is meant by the term, "serious" as it's used to
modify the term "medical conditions". For example, would a
10 percent chance of maternal fatality or impairment be
construed as "serious"? Would a 50 percent chance? Or a
1 percent chance? Such issues must be addressed on an
individual basis, but the bill would limit the ability of
physicians to do so. For example, the bill would preclude [the
use of public funds for] an abortion even in cases where the
fetus has no chance of surviving [outside the womb] - a not
uncommon problem that can result from anencephaly or severe
derangements of chromosomes. Most reasonable people would
consider having an abortion in such a traumatic situation -
considering it to be a medically-necessary abortion because of
the risks involved with carrying such a pregnancy to term.
DR. HOGENSON pointed out that Medicaid already requires
physicians to document the medical necessity of any procedures
performed, and thus she does not see that the bill would add
anything other than confusion. In conclusion, she encouraged
the committee to vote against HB 173, opining that it is a very
poorly written bill.
1:39:26 PM
PAMELA SAMASH, President, Right to Life Interior (ph), asked the
committee to vote "yes" on HB 173, said she totally agrees with
the bill, and opined that there should be specific codes,
treatments, and diagnoses associated with medically-necessary
abortions. She offered her belief that the bill wouldn't come
between patients and their physicians, or prevent abortion, and
instead only sets guidelines pertaining to the use of public
funds.
1:42:07 PM
LANCE ROBERTS asked the committee to support HB 173 and move it
forward, offering his belief that a good statutory definition of
the term, "medically necessary abortion" is needed.
1:44:01 PM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), mentioning that the ACLU of
Alaska's written testimony - included in members' packets -
provides a legal analysis of HB 173's constitutional
infirmity's, offered his belief that Alaska's [new regulation]
appropriately addresses the State's concerns about only using
public funds to pay for medically-necessary abortions.
Referring to pages 3-4 of the ACLU of Alaska's written
testimony, he explained that the terms, "medical necessity" and
"medically necessary" are already used throughout Alaska's
Medicaid regulations, and yet, unlike what's being proposed via
HB 173 for abortion procedures, nowhere is there also a list
specifying what then constitutes "medical necessity" or
"medically necessary". And this current lack has not resulted
in any problems for the state in managing its Medicaid program.
Attempting to specify in law what constitutes "medical
necessity" or "medically necessary", as the bill is proposing,
would interfere with the medical process, he warned, and
predicted that the courts would look to the State's existing
Medicaid standards and therefore find that HB 173 is
unconstitutional. "This" issue has already been litigated many
times, and thus passage of the bill would result in entangling
the State in needless litigation without improving anything, he
remarked in conclusion.
1:47:02 PM
ELANN MORAN said she finds it most confusing that what
constitutes a medically-necessary procedure is being defined by
legislation instead of by physicians or other medical
professionals, and relayed that she wholeheartedly agrees with
those who have testified in opposition to HB 173. Restricting
abortion services for poor women will only create a need for
what she termed, "back alley abortions," because access to safe,
legal abortions for such women would be curtailed.
Characterizing the illegal abortion that she underwent after
being raped as the worst experience of her life, she opined that
the bill's reference to and exemption for the crime of rape is
vague and completely unrealistic, particularly given that many
rape victims don't wish to disclose to anyone other than their
physician or counselor that they've been raped. Her greatest
fear, she relayed in conclusion, is that poor women will once
again be forced to resort to using coat hangers to try to
control the number of mouths they have to feed.
1:49:50 PM
PAT CHAMBERS expressed her support of HB 173, and opined that
the state should define the term, "medically necessary" for
abortion procedures, and that abortion procedures shouldn't be
allowed for any reason.
1:50:57 PM
SUSAN SCHRADER said she opposes HB 173 because it represents yet
another attempt by politicians to intervene in the very personal
decisions that Alaskan women are faced with when pregnant. Such
decisions should be left up to the women themselves in
consultation with their families, religious faiths, and
physicians. Politicians have no place in such personal
decisions, and for no other procedure - for example procedures
for the treatment of hypertension or procedures for the
treatment of cancer - are politicians attempting to define what
constitutes a "medically necessary" procedure. Some people
recognize the complexity of the issues and challenges faced by
women when they must decide whether to give a baby up for
adoption, whether to raise the child themselves, or whether to
terminate the pregnancy. And, as asserted in the bill's sponsor
statement, although limiting access to abortions funded by
Medicaid won't prevent abortions from occurring in Alaska, it
would limit access to safe, legal abortions and therefore likely
drive women to seek illegal and therefore unsafe abortions, just
as occurred prior to the U.S. Supreme Court decision in Roe v.
Wade. In conclusion, she ventured that providing all Alaskan
women with easy access to family-planning services and birth
control would result in a decrease in the number of abortions
performed but without also trampling on Alaskan women's freedom
of choice in healthcare decisions.
1:56:13 PM
BARBARA BELKNAP said she is testifying in opposition to HB 173.
Throughout history, the burden has been - and still is - on
women to decide what to do with an unwanted pregnancy, because
although men think a great deal about having sex, far too few
give any consideration to what happens when women then become
pregnant. Women her age, she relayed, know of women and girls
who've died after obtaining an illegal abortion, or who've
suffered infections that then left them sterile. She offered
her understanding that in Roe, the court ruled that most laws
against abortion violate the right to privacy, and overturned
all state laws outlawing or unduly restricting abortion.
However, women are still dying in the United States because they
cannot access safe abortions in their communities, and making
access to abortions as onerous as possible isn't going to stop
men from getting women and girls pregnant, but will instead only
result in more misery for those women and girls. Using HB 173
to limit access to Medicaid funding for abortions will also fail
to prevent men from getting women and girls with little or no
income pregnant. She predicted that HB 173 would be ruled by
the courts as unconstitutional, violating a woman's right to
privacy. In conclusion, she asked the committee to "drop"
HB 173.
2:01:48 PM
CAREN ROBINSON, Lobbyist, Alaska Women's Lobby, said the Alaska
Women's Lobby is unable to support HB 173 in general, and
specifically opposes limiting the definition of the term,
"medically necessary abortion" such that it excludes mental
illnesses. The Alaska Women's Lobby believes that all women,
including poor women, have the right to control their own
reproduction; that their medical decisions should remain private
between themselves and their physicians; and that physicians
should be free to use their medical judgment based on the
consideration of all factors. She offered her understanding
that the court has already defined the term, "medically
necessary" very broadly in order to provide attending physicians
with the flexibility they need to make their best medical
determinations. The aforementioned new regulation, which goes
into effect today, already clarifies the rules regulating when
Medicaid funds may be used for abortion procedures. She asked,
therefore, that in lieu of moving the bill forward, that that
new regulation be given a chance to work. In conclusion, she
offered suggestions for reducing the number of unintended
pregnancies occurring in Alaska, and the associated costs.
2:06:23 PM
ANN FIORELLA, mentioning that she used to work for [Centers for
Medicare & Medicaid Services] for a number of years, ventured
that [HB 173] is unnecessary given that Medicaid regulations
already prevent reimbursement for procedures that are not
medically necessary, and the State's existing system already
ensures program integrity and provider compliance. Under the
Medicaid regulations, "medical necessity" is determined by a
physician's standards as judged by his/her peers. The principle
of autonomy - the right of an individual to make his/her own
decisions regarding healthcare - is embodied in both the Alaska
State Constitution's right to privacy, and in the Medicaid
regulations and requirements such as those that stipulate that
the State shall provide for such things as "person-centered"
planning; even people who are developmentally and intellectually
disabled are allowed to make decisions regarding healthcare.
Pregnant women do not lose their capacity to make decisions
regarding their own healthcare, but efforts to [pass legislation
such as HB 173] appear to abandon the principle of autonomy and
instead strive to force pregnant women to forfeit their autonomy
in ways that are not being required of either men or non-
pregnant women. This is impermissibly inconsistent - allowing
competent adults to make their own decisions regarding
healthcare unless they are pregnant.
MS. FIORELLA opined that there are already sufficient safeguards
in place in the Medicaid regulations to ensure that abortions
that are not medically necessary are not paid for with public
funds. She said she thinks that HB 173 is overly proscriptive,
confusing in many ways, and particularly flawed in that neither
it nor the definition of abortion in AS 18.16.090 contain a
provision addressing fetal abnormalities. Referring to a
pregnancy that occurred in her own family involving a fetal
abnormality wherein the fetus didn't have a brain, she said she
would not wish for any pregnant woman to have to carry such a
pregnancy to term. Again, HB 173 makes no provision for such
[medical] conditions. In conclusion, she said:
I am appalled that the State, under this bill, would
act as an agent ... to force birth; I ask you to
choose respect for women and recognize that the
principle of autonomy requires that the State not
interfere with a woman's decision regarding her
healthcare even when she receives State funding for
pregnancy services.
MS. FIORELLA, in response to comments, opined that one cannot
define the term, "medical necessity" simply by producing a list
of "allowed" diagnoses - there are just too many medical issues
that could be involved. She again pointed out the lack of
provision for fetal abnormalities.
2:14:14 PM
KAREN CRANDALL relayed that she supports HB 173 because, by
defining the term, "medically necessary abortion" for purposes
of Medicaid reimbursement, it addresses an important moral
issue; and offered her belief that it isn't necessary to use
public funds to pay for the abortion of pregnancies that result
from rape.
2:18:11 PM
GEORGE W. BROWN, M.D., mentioning that he's a pediatrician, said
he doesn't believe that HB 173 is going to address what he, as a
physician, considers to be the underlying serious and
challenging health problem of unintended pregnancies. He urged
[legislators] to instead find common ground and address that
health problem, and recommended therefore that the bill be heard
by the House Health, Education and Social Services Standing
Committee. In response to questions, he said he doesn't believe
it's possible to view a pregnant woman's physical health,
behavioral health, and mental health separately; explained that
if a woman carries a pregnancy to term but regrets doing so,
that's clearly going to impact both her mental health and her
physical health; opined that once pregnant, the complicated
decision of what to do about it should be left up to the
individual woman to make; and offered his belief that HB 173's
proposed list of what constitutes a medically-necessary abortion
should include fetal abnormalities that are likely to result in
the death of the fetus, because carrying a fetus with such a
problem to term could be injurious to the woman's physical and
mental health.
CHAIR KELLER mentioned that HB 173 is attempting to make a
distinction between medically-necessary abortions and elective
abortions.
2:32:03 PM
KAREN LEWIS, Director, Center for Bio-Ethical Reform, offered
her belief that the U.S. Supreme Court's ruling in Roe would be
overturned, and indicated approval of HB 173.
2:36:22 PM
CAROL BRADY (ph) spoke briefly about the pregnancy and child
that resulted when her sister was raped back in 1939.
2:39:59 PM
ROBERTA N. HUNTER, Executive Director, Fascinating Womanhood
Alaska Center for Woman, said she supports HB 173 as legislation
that would reduce the number of abortions occurring in Alaska
and the public funding thereof.
2:42:06 PM
AMY BOLLENBACH relayed that she agrees entirely with Dr. Brown
and Dr. Hogenson; referred to the difficulty of statutorily
listing all the medical conditions that [could result in the
need for a] medically-necessary [abortion]; offered her belief
that every individual, regardless of income, should have an
opportunity to have medical care; and said she is very much
against HB 173.
2:43:54 PM
DEE LONGENBAUGH said she is testifying against HB 173, and
commented on the costs of carrying a damaged fetus to term and
then attempting to sustain it, when part of the brain is missing
or there are other severe problems, for example.
2:45:35 PM
REGINA C. CHENNAULT, M.D., said she very much supports
legislation defining what constitutes a medically-necessary
procedure for purposes of ensuring that public funds are not
used to pay for abortions. She offered her understanding that
the term, "medical necessary" is already defined as meaning a
service or treatment that's absolutely necessary to protect what
she referred to as "the health status as a condition of a
patient," and offered her belief that there are very few medical
conditions - except those wherein the fetus is dead or lacks a
brain, or those causing the pregnant woman's vital signs to
become unstable - which absolutely indicate that an abortion
should be performed. In conclusion, she indicated a belief that
neither the termination of unintended pregnancies nor the
abortion of fetuses with abnormalities/diseases/syndromes should
be paid for with public funds.
2:53:20 PM
CATHY GIRARD urged the committee to vote "No" on HB 173, adding
that she takes issue with what appears to be an assault by
politicians on private medical matters between a woman, her
family, her faith, and her physician. She offered her
understanding that legislation such as HB 173 has already been
found by the Alaska Supreme Court to be unconstitutional, and
that existing regulations already address [the issue of ensuring
that public funds are only used for medically-necessary
abortions]. She added:
No one seems to question whether tax payers or the
State of Alaska has the fiscal responsibility to
Medicaid recipients that find themselves with health
complications associated with their personal decisions
to overeat, to eat poorly, to smoke, to drink to
excess, to use drugs, or to partake in other known
risky behaviors that can produce expensive and well-
documented health consequences. But in contrast, I
don't believe our legislature has ever proposed
legislation to determine medical necessity for
treating the health complications associated with
unsavory behaviors.
MS. GIRARD relayed that to her, HB 173 - as another attempt to
impose government-sanctioned morality under the guise of
offering fiscal responsibility - constitutes bad fiscal policy,
bad health policy, and bad social policy, and would likely
embroil the State in costly litigation. In conclusion, she
again urged the committee to vote "No" on HB 173.
2:55:27 PM
RICHARD CLAYTON TROTTER, General Counsel, The Justice
Foundation, said he opposes having public funds used for
abortions and elective procedures; offered his understanding
that the diagnostic list used by Medicaid already includes all
medically-necessary diagnoses; and urged the committee to vote
in favor of HB 173. In response to questions, he opined that
once a woman, in consultation with her physician, decides to
have an abortion, then she - and not the public - should be
responsible for paying for it; and offered his understanding
that it's the legislature that decides which medical procedures
shall be paid for with public funds.
3:08:37 PM
JOAN FRANZ urged the committee to vote "No" on HB 173, adding
that she does not want state law to discriminate against low-
income women and the private healthcare decisions they make in
consultation with their physicians, characterizing such as an
invasion of and a disregard for individual rights. She offered
her understanding that physicians are already required to
certify that an abortion is medically necessary before public
funds may be used to pay for it, and thus further "definitions"
are unnecessary and only serve to restrict personal freedom. In
conclusion, she offered suggestions for reducing the number of
unintended pregnancies, and again urged the committee to vote
"No" on HB 173, opining that it's not necessary to define the
term, "medically necessary" [as that term relates to abortions].
3:11:23 PM
JEAN WATSON JAMES (ph) mentioned that back when abortions were
illegal, it didn't stop women from obtaining abortions but
instead only resulted in a lot of women being maimed or killed
during illegal procedures; made reference to what's being done
differently in countries that have abortion rates much lower
than the U.S.; and said she strongly believes that
determinations regarding whether an abortion is medically
necessary should be made by the physician, not by the
legislature or via legislative mandate, which can be
misinterpreted. She offered her understanding that the term,
"medically necessary" is already defined as a physician's best
practice. She urged the committee to oppose HB 173 and vote
"No" on it; offered suggestions to reduce the need for
abortions; and mentioned that she is the widow of a physician
who would have been very opposed to HB 173.
3:13:57 PM
KARL BAURICK, M.D., Obstetrician/Gynecologist (OB/GYN), urged
the committee to vote "No" on HB 173; said he thinks that trying
to define what constitutes a medical indication is a mistake and
unnecessary; and cautioned against following the agendas of
those opposed to abortion. He noted that the bill doesn't yet
address fetal indications for medically-indicated abortions, and
characterized that lack as a serious flaw. There are many
serious flaws to be found when trying to define what constitutes
a medically-necessary abortion, particularly given that
pregnancy in and of itself can endanger a woman's life. He
himself, he relayed, has addressed several high-risk pregnancies
endangering the life of the mother. Forcing a woman to carry a
fetus with a lethal chromosomal abnormality - such as Trisomy
18, for example - to term, might endanger her life and cause
great psychological damage to her. He said he doesn't believe
it's possible, truly, to encompass all the [medical] indications
for an abortion, and again recommended a "No" vote on HB 173.
3:16:32 PM
JOYCE ZOUNIS, offering information about the seven abortions
she'd had, asked the committee to support HB 173, expressing
concern that women would use state-funded abortions as birth
control, as she'd done. In conclusion, she opined that the
term, "medically-necessary abortion" needs to be defined, and
asked the committee to vote "Yes" on HB 173 and protect the
lives of the unborn in Alaska.
CHAIR KELLER closed public testimony on HB 173.
[HB 173 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 173 Planned Parenthood of Alaska Testimony.pdf |
HJUD 4/1/2013 1:00:00 PM |
HB 173 |
| HB 173 Letter of Testimony-Bethany Swenson.pdf |
HJUD 4/1/2013 1:00:00 PM |
HB 173 |
| HB 173 Letter of Opposition-ACLU.pdf |
HJUD 4/1/2013 1:00:00 PM |
HB 173 |
| HB 3 Letter of Support-Alaskans for Alaskans.pdf |
HJUD 4/1/2013 1:00:00 PM |
HB 3 |
| HB 3 Letter of Opposition-Doyon Limited.pdf |
HJUD 4/1/2013 1:00:00 PM |
HB 3 |