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