Legislature(1997 - 1998)

01/30/1998 09:00 AM HES

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

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