Legislature(2013 - 2014)CAPITOL 120

03/29/2013 01:00 PM House JUDICIARY

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01:09:06 PM Start
01:11:02 PM HB173
02:09:16 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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<Bill Hearing Canceled>
<Bill Hearing Canceled>
<Pending Referral>
Heard & Held
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<Bill Hearing Canceled>
         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                                                               
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.]                                                                                                         

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