Legislature(2001 - 2002)
05/09/2002 04:12 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 9, 2002
4:12 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
OTHER LEGISLATORS PRESENT
Representative Fred Dyson
Representative Andrew Halcro
COMMITTEE CALENDAR
SENATE BILL NO. 364
"An Act relating to medical services under the state Medicaid
program."
- HEARD AND HELD
PREVIOUS ACTION
BILL: SB 364
SHORT TITLE:MEDICAID PAYMENTS FOR ABORTIONS
SPONSOR(S): RLS BY REQUEST
Jrn-Date Jrn-Page Action
04/18/02 2840 (S) READ THE FIRST TIME -
REFERRALS
04/18/02 2841 (S) FIN
04/23/02 (S) FIN AT 9:00 AM SENATE FINANCE
532
04/23/02 (S) -- Meeting Canceled --
04/23/02 (S) FIN AT 4:00 PM SENATE FINANCE
532
04/23/02 (S) Moved Out of Committee
04/23/02 (S) MINUTE(FIN)
04/24/02 2920 (S) FIN RPT 5DP 2DNP 1NR
04/24/02 2920 (S) DP: KELLY, GREEN, OLSON,
LEMAN, WARD;
04/24/02 2920 (S) DNP: DONLEY, AUSTERMAN; NR:
WILKEN
04/24/02 2920 (S) FN1: INDETERMINATE(HSS)
05/01/02 (S) RLS AT 10:30 AM BELTZ 211
05/01/02 (S) -- Location Change --
05/01/02 (S) MINUTE(RLS)
05/06/02 3182 (S) RULES TO CALENDAR 1OR 5/6/02
05/06/02 3185 (S) READ THE SECOND TIME
05/06/02 3186 (S) ADVANCED TO 3RD READING FLD
Y13 N6 E1
05/06/02 3186 (S) ADVANCED TO THIRD READING 5/7
CALENDAR
05/07/02 3208 (S) READ THE THIRD TIME SB 364
05/07/02 3208 (S) PASSED Y12 N7 E1
05/07/02 3208 (S) ELLIS NOTICE OF
RECONSIDERATION
05/08/02 3221 (S) RECON TAKEN UP - IN THIRD
READING
05/08/02 3221 (S) PASSED ON RECONSIDERATION Y12
N8
05/08/02 3244 (S) TRANSMITTED TO (H)
05/08/02 3244 (S) VERSION: SB 364
05/09/02 3460 (H) READ THE FIRST TIME -
REFERRALS
05/09/02 3460 (H) JUD, FIN
05/09/02 (H) JUD AT 4:00 PM CAPITOL 120
WITNESS REGISTER
GWENDOLYN HALL, Staff
to Senator Pete Kelly
Alaska State Legislature
Capitol Building, Room 518
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 364 on behalf of Senator
Kelly, who was the requestor SB 364, which was sponsored by the
Senate Rules Committee.
SENATOR PETE KELLY
Alaska State Legislature
Capitol Building, Room 518
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the requestor of SB 364, which
was sponsored by the Senate Rules Committee.
KIRSTEN BEY, Member
Board of Directors
Alaska Civil Liberties Union (AkCLU)
PO Box 667
Nome, Alaska 99762
POSITION STATEMENT: During discussion of SB 364, provided
comments in opposition.
DEATRICH SITCHLER
520 Glacier Bay Circle
Anchorage, Alaska 99508
POSITION STATEMENT: Testified against SB 364.
ROBIN SMITH
14100 Jarvi Drive
Anchorage, Alaska 99515
POSITION STATEMENT: Testified in opposition to SB 364.
KATHLEEN G. TODD, M.D.
Valdez Medical Clinic
PO Box 1829
Valdez, Alaska 99686
POSITION STATEMENT: Her testimony opposing SB 364 was read by
Robin Smith.
PAULINE UTTER
13820 Jarvi Drive
Anchorage, Alaska 99515
POSITION STATEMENT: Testified in opposition to SB 364.
JAN WHITEFIELD, M.D.
Alaska Women's Health Services, Inc.
4115 Lake Otis Parkway
Anchorage, Alaska 99508
POSITION STATEMENT: Her testimony opposing SB 364 was read by
Pauline Utter.
LEILA WISE
(No address provided)
POSITION STATEMENT: Testified in opposition to SB 364.
JOHN MIDDAUGH, M.D., Chief
Epidemiology Section
Division of Public Health
Department of Health & Social Services (DHSS)
PO Box 240249
Anchorage, Alaska 99524-0249
POSITION STATEMENT: Testified in opposition to SB 364.
LISA VILLANO
PO Box 751655
Fairbanks, Alaska 99775
POSITION STATEMENT: Testified in opposition to SB 364.
KRISTEN BOMENGEN, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Provided comments during discussion of SB
364.
COLLEEN M. MURPHY, M.D., Obstetrician-Gynecologist
3260 Providence Drive
Anchorage, Alaska 99508
POSITION STATEMENT: Testified in opposition to SB 364.
CHIP WAGONER
Alaska Catholic Conference
3294 Pioneer Avenue
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of SB 364.
SIDNEY HEIDERSDORF, Alaskans For Life, Inc.
PO Box 20874
Juneau, Alaska 99802
POSITION STATEMENT: Testified in support of SB 364.
ACTION NARRATIVE
TAPE 02-61, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 4:12 p.m. Representatives
Rokeberg, James, Coghill, and Meyer were present at the call to
order. Representatives Berkowitz and Kookesh arrived as the
meeting was in progress.
SB 364 - MEDICAID PAYMENTS FOR ABORTIONS
Number 0012
CHAIR ROKEBERG announced that the committee would hear SENATE
BILL NO. 364, "An Act relating to medical services under the
state Medicaid program."
Number 0082
GWENDOLYN HALL, Staff to Senator Pete Kelly, Alaska State
Legislature, testified on behalf of Senator Kelly, who was the
requestor SB 364, which was sponsored by the Senate Rules
Committee. She remarked that it was Senator Kelly's intention
to define "medically necessary" with regard to state-funded
Medicaid abortions. She said:
Right now there is almost an epidemic of elective
abortions' being funded with state monies even though
the court case of Perdue versus Planned Parenthood
[State Dept. of Health & Social Services v. Planned
Parenthood of Alaska, et al. (07/27/2001) sp-5443]
states that only medically necessary abortions will be
paid with state funds. What this bill does is, just
defines medically necessary so we know exactly what
we're talking about. There's been accusations and
claims that there is no proof that elective abortions
are being paid for with state monies, and since we
don't have in law yet that all abortions need to be
reported, we can only use data from previous years.
And in 1997, there were 1079 abortions paid for with
state Medicaid monies, and they have these codes,
which were kind of confusing, on the left-hand column
- and I'm sorry, I didn't provide you with copies of
this ... - that diagnose what each medical procedure
is.
And if you look through the "Professional for
Physicians, Volumes 1 and 2," you can find reference
to what these codes are. And for "legal abortion,
uncomplicated" - obviously, those are without medical
necessary reasons - and then right below that is
unwanted pregnancy - that's without medical reasons.
Then you have legally induced abortions, and with that
code you'll find: without specific complications.
And so that right there is proof in the pudding that
the state is paying for elective abortions. This bill
isn't planning on making abortion illegal; ... it
wasn't introduced to take away medical procedures for
indigent women of Alaska. It's just making sure that
we are abiding by the Planned Parenthood versus Perdue
[State Dept. of Health & Social Services v. Planned
Parenthood of Alaska, et al. (07/27/2001) sp-5443]
case, and only paying for medically necessary
abortions.
MS. HALL, in response to a question, said that last year, 577
abortions were paid by Medicaid.
Number 0409
SENATOR PETE KELLY, Alaska State Legislature, speaking as the
requestor of SB 364, which was sponsored by the Senate Rules
Committee, said that abortions are paid with Medicaid match
money. In response to a question, he said:
Federal dollars are not used to pay for abortions
other than those that fall under the "Hyde Amendment,"
which can be paid for by Medicaid. The state uses
money that we would have matched against Medicaid, but
we choose not to fund more of the health issues with
them; we fund the abortions under ... Medicaid match.
It used to be under general relief medical; that
program was ended, and now ... we just use Medicaid
match (indisc.).
SENATOR KELLY, in response to another question, said:
We match Medicaid money with general fund ... money
when the services are performed. If we don't ever
take that match money and pay for services with it, it
never gets ... in the Medicaid pot, so to speak; it
can be diverted for other purposes. The court has
done that to pay for state funded abortions. Once
it's matched ... for a Medicaid service, it can't be
used to pay for abortions except those under the Hyde
Amendment. I don't know the exact number of those,
but those are very few.
CHAIR ROKEBERG asked, "So there's matching federal and state
dollars under our ratio that pays for Hyde Amendment abortions,
is that correct?"
SENATOR KELLY said:
Yes, Mr. Chairman, those pay for a lot of other
medical services as well. As I said, I don't know the
exact number of Medicaid abortions; those are very
few, and if ... [there] are any at all, and there are
a couple of them, they are for those that fall under
the Hyde Amendment. The ones that we do under state
regulations are not paid for with Medicaid money;
they're paid for with other money - state money.
Number 0565
CHAIR ROKEBERG said he has concerns because even in the
aforementioned case, "[Chief] Justice Fabe very clearly states
that these payments are not to be made for elective abortions,
and that's not the issue here.
SENATOR KELLY said:
The problem is, is that elective abortions are a
matter of the regulations. That's the purpose of the
bill.... Medically necessary abortions are ones that
would affect the life and health of the mother.
However, under our regulations, the term medically
necessary is defined as those things that adversely
affect the physical health and psychological health of
the mother. And that's why you have this big
discrepancy between us and other states, where you
have so many medically necessary abortions, is because
when you throw in the word psychological, all of a
sudden you've got a pretty broad definition of what is
a medically necessary abortion. Technically, when the
... [Alaska] Supreme Court says that they aren't
paying for elective abortions, yeah, technically
that's true because we have defined just about any
abortion anyone would ever want to have as being
medically necessary under the terminology of the
psychological health.
SENATOR KELLY then paraphrased portions of 7 AAC 47.290, which
read:
(8) "therapeutic abortion" means the termination of a
pregnancy;
(A) certified by a physician as medically necessary to
prevent the death or disability of the woman, or to
ameliorate a condition harmful to the woman's physical
or psychological health; or
SENATOR KELLY said: "The problem is, if you're going to
ameliorate some condition of a person's psychological health,
that terminology is way too broad, or it is my contention and
(indisc. - voice faded away)."
CHAIR ROKEBERG indicated that this issue should simply be
brought before the Joint Committee on Administrative Regulation
Review (JARR).
SENATOR KELLY opined that narrowing the statutes would have a
similar impact on the regulations.
Number 0767
KIRSTEN BEY, Member, Board of Directors, Alaska Civil Liberties
Union (AkCLU), testified via teleconference. She said:
If the main concern is that the definition of
medically necessary is -- if that's what the purpose
of this bill is getting at, [it] doesn't appear to me
that that really gets at that at all. It just sets up
a whole bunch of other terms that we don't have any
definition for. What's the definition of
"significantly aggravated", "seriously endanger",
"highly dangerous"? And who is going to make those
decisions? Instead of having one term "medically
necessary", we now have three or four terms that,
again, there are no definitions to that. Also, if ...
a big problem in the current definition of medically
necessary is to address or ameliorate the
psychological health of the mother, then why does this
bill so significantly curtail the medical situations,
the actual, physical medical situations that an
abortion can be available for to someone who cannot
afford to pay for their own?
To put a woman in a situation where she needs to try
to decide, "Well, is this going to 'significantly
aggravate' a condition I have?" or have to wait for
weeks and weeks to see if a pregnancy "significantly
aggravates" that, [it] just ... doesn't do anybody any
good.... And ... the use of the "would" in here: in
the medical arena, ... there are very few situations
where a doctor can say for [a] certainty [that]
something is going to happen. To say that that doctor
has to somehow certify that a situation would happen
effectively cuts out the ability of ... poor women to
obtain abortions that may well be medically necessary.
REPRESENTATIVE BERKOWITZ noted that an elective procedure is
defined in 7 AAC 47.290 as:
(3) "elective procedure" means a procedure that is
subject to the choice or decision of the patient or
physician regarding medical services that are
advantageous to the patient but not necessary to
prevent the death or disability of the patient, and
includes an elective abortion;
REPRESENTATIVE BERKOWITZ said, "Given the definitions that we
have here for medically necessary, it would seem to me that
there's substantial overlap ... between what's medically
necessary and what would be considered an elective procedure."
He asked Ms. Bey if she has given this matter any thought.
Number 0962
MS. BEY said that she has given this matter some thought, but
noted that she has not actually seen the regulations that are
being discussed. She indicated that from what has been read
from the regulations thus far, there doesn't appear to be any
overlap.
CHAIR ROKEBERG noted that 7 AAC 47.290 describes an elective
abortion in [paragraph (7)] which reads:
(7) "elective abortion" means a procedure, other than
a therapeutic abortion, to terminate a pregnancy;
REPRESENTATIVE BERKOWITZ opined that a procedure which is
defined as medically necessary according to the definition in
the bill - "adverse physical condition ... that ... would
seriously endanger the physical health of the woman" - would not
fit into the regulatory definition of a procedure that is
"necessary to prevent the death or disability of the patient".
He said "endangering the physical health" seems to fall short of
either "death" or "physical disability"; therefore, he
reiterated, there seems to be a substantial overlap in the
definitions of "elective procedure" [in regulations] and
"adverse physical condition/medically necessary" [in SB 364].
MS. BEY said:
Under that section of the bill, there's two things
[that] have to happen: the ... adverse physical
condition is either caused by the pregnancy or ... a
condition would be significantly aggravated, and would
seriously endanger the physical health.... Again, I
guess it's just the whole question of the definitions:
there are no definitions. So how is anyone going to
really ... decide, and who's going to come in and say,
"Well, what is 'seriously endanger'?" And I guess I
would think "seriously endanger" would ... lead to
some kind of disability, but whether it's an actual
ongoing disability or something that's just temporary
... That's just one of the big objections I have to
the bill, is, if the purpose of it is to ...
CHAIR ROKEBERG interjected, and opined that Representative
Berkowitz is referring to the regulations rather than the bill.
MS. BEY opined, rather, that Representative Berkowitz is
suggesting that portions of the bill don't fit within the
regulations because "seriously endanger" doesn't go all the way
to the point of causing death or disability.
Number 1187
DEATRICH SITCHLER testified via teleconference in opposition to
SB 364. She said:
I reside here in Anchorage and I am testifying for
myself. I'm here to oppose this bill, and to ask you
to do everything in your power to stop this from
becoming law. I would like to share with you my
personal reasons why this bill would be detrimental to
many women with similar situations to mine. At a
young age, I was diagnosed with hemophilia, a disease
affecting the blood. As a result of this condition,
it could be medically dangerous for me to carry a
pregnancy to term because the loss of blood during
delivery could be potentially fatal to me. I
emphasize the word "could."
There are cases where women like me have had children
successfully, but at a very high risk. A high risk
that they have determined they want to take. Under
this bill, I probably would not qualify for Medicaid
services. My doctor is not going to say that if I
take the pregnancy to term, I "would" seriously
endanger my physical health. My doctor would probably
say that there is, for example, a 70 percent chance
that carrying this pregnancy to term "could" seriously
endanger my physical health. I don't think I should
be denied the right to [Medicaid] assistance because
there is a 30 percent chance that my pregnancy could
turn out okay.
No doctor could ever be certain of what would happen
if I carried a pregnancy to term. Especially in cases
like mine, where the woman has a high chance of a
serious endangerment to her physical health, she
should be the one who decides whether or not she is
willing to take that risk. This bill could force
women like me to carry their pregnancy to term and
risk their own lives just because the doctor cannot
say for sure that carrying this pregnancy to term
"would" endanger their physical health.
MS. SITCHLER concluded:
I would also like to remind the committee members that
this decision to terminate my pregnancy would be very
painful for me, and I would be doing this to
potentially save my own life. There are many women
out there who would be forced to carry a potentially
dangerous pregnancy to term and risk their own life
just because they can't afford to pay for an abortion,
and they don't fit into your very limited category of
women whose pregnancies "would" seriously endanger
their physical health. I don't think the legislature
should be making these types of life-altering
decisions for women just because they are low income.
And for these reasons I urge you to oppose the bill as
drafted. Thank you.
Number 1329
ROBIN SMITH testified via teleconference in opposition to SB
364. First, however, she read the following testimony of
KATHLEEN G. TODD, M.D.; Valdez Medical Clinic:
I urge you not to pass Senate Bill 364 - limiting
abortion funding. This bill excludes any
consideration of fetal anomalies as a legitimate
reason for abortion, which, I assure you, are high on
many women's lists of legitimate reasons for abortion.
Should my patient whose fetus has multiple congenital
anomalies incompatible with life caused by an unknown
exposure to a teratogenic agent be required to carry
to term? This bill also requires an impossibly high
burden of proof to protect the mother's health. We in
the medical care [field] are often faced with chances,
not certainties. This bill would require a certainty
before action was taken; thus precluding most actions.
Abortion and pregnancy must remain a decision made by
individuals who can assess risk and weigh these risks
based on their own value systems.
In thinking about abortion funding, we need to keep in
mind where fairness lies. Those who argue against
spending government money on abortions, as something
they don't believe in, forget that other people also
have deeply held beliefs. It's against my convictions
to knowingly carry to term a grossly deformed baby or
to try to carry septuplets or to endanger my life for
the sake of a fetus. I wouldn't do it, and I wish
that ... state money wasn't spent on these kind of
pregnancies. However, I don't think the state should
cut off all funding to a woman who doesn't have an
abortion in these circumstances. She might believe
differently than I do. The government needs to stay
neutral, not allowing anyone to impose abortion on
women - including the poor - but likewise, not
allowing anyone to impose pregnancy on them.
Number 1449
MS. SMITH, on behalf of herself, said:
I also just want to say that I ... oppose SB 364.
This bill cuts deep into the doctor/patient
relationship. I believe it sets precedent. I don't
think we really want the [legislature] make health
care decisions for a person just because they're low
income. And I'm really kind of sorry that
Representative Ogan isn't here, because I wonder if
there hasn't been a time in his past where he hasn't
had insurance and would have been considered low
income. And would he actually want the legislature
determining the type of health care he can get, or
whether or not a pacemaker was really medically
necessary?
Feedback that I get from the doctors in the field are
that they're being cautious; doctors are using
Medicaid funds only when it is (indisc.) necessary to
(indisc.) court ruling. They fear financial
consequences - loss of payment or a lawsuit - if the
abortion is not medically necessary. [So] they've
been very leery to perform ... any abortion that isn't
medically necessary. Thank you; I hope you stop this
bill now.
CHAIR ROKEBERG noted that the Alaska Supreme Court has made a
ruling in which it uses the term "medically necessary" over 30
times. He stated:
As the sponsor of the "Alaska Patients' Bill of
Rights" bill, I struggled for three years working with
the insurance industry and with the Alaska Medical
Association, trying to define the "medical necessity."
I failed. I worked on it for three years. I want
everybody to be very aware of this right now. So I'm
a super skeptic ... [with regard to] a good deal of
this type of debate.
Number 1542
PAULINE UTTER testified via teleconference in opposition to SB
364. First, however, she read the following testimony of JAN
WHITEFIELD, M.D.; Alaska Women's Health Services, Inc.:
Senate Bill 364 is dangerous to the women of Alaska.
Consider a woman with Class D diabetes who becomes
pregnant. She may develop blindness during pregnancy
secondary to retinal detachment, or may develop renal
failure. She has an increased incidence of pregnancy-
induced hypertension in pregnancy that may cause her
to have a seizure and subsequent stroke. While I can
tell a woman of these risks, I am not able to predict
the future and tell her whether she will or will not
get any or all of these problems. I am simply aware
of the increased risk compared to other women and can
counsel her to these risks. As a physician, I cannot
state with 100 percent assuredness that a woman will
or will not develop a particular problem. The same is
true [for] many other problems in pregnancy such as
hypertension, seizure disorders, Lupus, and many other
disorders too numerous to list.
Similarly, if I put a patient on a particular medicine
in pregnancy to treat a disorder such as Lupus,
hypertension, or depression, I cannot tell the patient
with 100 percent surety that a particular drug will or
will not affect her baby. Just read any package
insert of most drugs, and the manufacturers will
discuss the risks of a drug in pregnancy. It becomes
very clear that there are no guarantees in medicine.
Prednisone is commonly used to treat Lupus and asthma
in pregnancy. The Physicians' Desk Reference says:
"Since adequate human reproduction studies have not
been done with [corticosteroids] (prednisone), the use
of these drugs in pregnancy, nursing mothers, or women
of childbearing potential requires that the possible
benefits of the drug be weighed against the potential
hazards to the mother and embryo or fetus. Infants
born of mothers who have received substantial doses
corticosteroids during pregnancy should be carefully
observed for signs of hypoadrenalism".
Number 1637
The testimony of Dr. Whitefield as read by Ms. Utter continued:
I may see an unmarried woman who works to support
herself and her three children, and she may relate
that she is severely distressed over a current
pregnancy. She may request an abortion, or wonder
about being placed on an antidepressant. All
antidepressants have possible risks to the fetus.
Consider Prozac, a commonly used antidepressant. In
the book Drugs in Pregnancy and Lactation, a standard
reference text in this field by Gerald Briggs, Ph.D.
in Pharmacy, the following quote can be read:
"Because at least one animal study has shown that
fluoxetine (Prozac) can produce changes, perhaps
permanent, in the fetal brain, the maternal benefits
must be carefully weighed against the potential embryo
and fetal risks before exposing a pregnancy to this
drug."
Should I or should I not give this drug to this
patient? Will it affect her fetus? Is this drug
dangerous to the fetus? Will her life be negatively
affected or endangered if I do not give her the drug?
You may be able to answer those questions, but I
can't. I am a physician, not a soothsayer. These are
only two of an infinite number of examples that can be
presented with equally ambivalent answers. As
physicians we can anticipate possible outcomes, but
cannot predict with 100 percent certainty any specific
outcome. This law, if enacted, will surely eliminate
the payment of many abortions by the State of Alaska.
However, the pregnant women, with their difficult
problems and uncertain outcomes, will remain and will
suffer the consequences. They are the ones who will
lose their sight, or have the stroke, or have their
kidneys fail. While it may gain a politician some
points with certain constituents, the women of Alaska
will suffer. Please consider the health of the women
and do not allow this bill to pass through your
committee [or] the general body of the Senate and
House.
Number 1734
MS. UTTER, on behalf of herself, said, "Of all [the] hearings
that I've been to on this bill ..., we've yet to see any
physicians testify that they were in favor of this bill." She
opined that it is critical for legislators to consider the
bill's lack of physicians' support.
Number 1759
LEILA WISE testified via teleconference in opposition to SB 364.
She opined that SB 364 is unconstitutional, is bad public
policy, and would certainly result in [women] getting bad health
care or inadequate health care. She said that she can
understand that some legislators do not wish to see medically
necessary abortions for poor women paid for with state funds;
nonetheless, the courts have said that state funds must be used
in the context of medically necessary abortions. She opined
that the efforts to circumvent the courts on this issue does
[all Alaskans] a disservice, and that enacting this legislation
would be a bad idea. She urged the committee to not pass SB
364.
CHAIR ROKEBERG, referring to the constitutionality of SB 364,
offered that the legislation would merely define what the Alaska
Supreme Court said with regard to this issue.
Number 1853
JOHN MIDDAUGH, M.D., Chief, Epidemiology Section, Division of
Public Health, Department of Health & Social Services (DHSS),
testified in opposition to SB 364. He explained that he is
board certified in internal medicine and preventive medicine,
and has been practicing medicine in Alaska since 1975. He said:
My comments today are meant to convey concerns, from a
physician's point of view, related to the practice of
medicine and to the difficulty of applying the legal
language being proposed in this legislation within the
context of the physician-patient relationship. You've
heard already in some of the testimony very similar
things that I just quickly and briefly will reiterate.
In the absence of a clear understanding of the meaning
of the language in the proposed legislation and its
interpretation, physicians will have great problems in
signing the certifications required by the
legislation, not because of a concern over the medical
need of the procedure, but due to uncertainty over the
vagueness of the language.
All of the terms that are restricting or proposed to
be restricting the definition of "medically necessary"
bring their own problems: "serious adverse physical
condition", "significantly aggravated", "seriously
endanger the physical health" - those, every day in
the practice of medicine, are things weighed between a
physician with clinical training and clinical judgment
in cooperation with the patient, in their own
circumstances, discussing options and probabilities to
arrive at [a] course of action ... that's optimal for
that patient in that circumstance.
The terms as proposed in the language are not clear
and ultimately would have to be interpreted later in
order to enforce the statute. But who would make the
decision, and based upon what? In the absence of
knowledge of the legally and ethically confidential
and intimate disclosures between the patient and
physician, how is that third party, without knowledge
of the facts, going to be able to determine if the
circumstances did "seriously endanger the physical
health" or if "serious adverse physical conditions"
are ... "[significantly] aggravated".
Number 1959
DR. MIDDAUGH continued:
You've heard about the concerns over the use of the
term "would", as opposed to "might" or "could", and I
want to reiterate those. I think you know, ... in
your own medical care, that physicians don't and are
not able to use terms with 100 percent certainty. And
I'd also like to call [to] your attention that the
bill excludes from coverage the tragic circumstances
where there's a pregnancy but where, with modern
medical knowledge and diagnostics, it can be
determined that that fetus can't be viable at the end
of pregnancy, yet this woman would not be able to get
a procedure covered by these funds.
I think that there's no evidence of an "epidemic" of
elective abortions. We know that the policies of the
state are not to pay for elective procedures, and we
also know that the rates of these procedures are not
an epidemic in Alaska, and, in fact, the rates in
Alaska are lower than the national average. There's
no science- or medical-based evidence or justification
for the proposed language. The legislation embodies a
rejection of the basic principles of the practice of
medicine and the powerful systems that assure
accountability for the standards of that medical
practice. As you value the basic principles of
medical practice as an individual, a legislator, and
an eventual patient, as a physician, I urge you not to
support this legislation. Thank you.
CHAIR ROKEBERG asked Dr. Middaugh for his interpretation of the
language in regulations that says, "to ameliorate a condition
harmful to the woman's physical or psychological health".
DR. MIDDAUGH said:
It would be consistent with the standards of medicine
to consider the courses of impact on a woman's health,
either physically or psychologically. For example,
take the circumstances of a woman, as you heard, with
diabetes who has a severe problem with diabetes and
controlling the blood sugar and blood pressure, faced
with potential ... threatening blindness; hypertension
threatening stroke; exacerbation of renal disease,
threatening loss of kidney functions - and having to
weigh her own health against the potential of having
to have a termination of a pregnancy. What's the
psychological damage to that woman as she has to weigh
those values? It's not unusual to have that
precipitate a severe depression and, depending on how
severe, could even result in a woman becoming
suicidal.
Number 2116
I think that's exactly why the weighing of these
factors isn't a formula. It's not able to be done
just by a simple matter applicable across the board to
every patient. It's one of the most difficult choices
faced by a woman and by a physician in counseling a
woman about those factors. And health is more than
just physical; the link between psychological and
physical health is a quite powerful one, as I know you
know.
CHAIR ROKEBERG remarked that the word "ameliorate" seems to be
"an awfully broad term," and he would interpret it as having a
good deal of "liberality." He asked Dr. Middaugh if he agreed.
DR. MIDDAUGH said:
I would say that it's very consistent with your
opening comments. If you and others, with three years
of concentrated effort to attempt to define "medical
necessity", were unable to do so, I would argue that
that's exactly why these terms need to have a broad
ability, so that a physician and patient have the
ability to determine and weigh options in order to
take into account the almost infinite number of
severely and often unpredictable medical and
psychological complications [that] can result from our
human condition.
CHAIR ROKEBERG asked Dr. Middaugh to explain what he thinks is
unclear about the language in proposed (b)(1)(A) and (B).
DR. MIDDAUGH said that the language is unclear because the
standard being used is "would".
Number 2234
CHAIR ROKEBERG disagreed, adding that there "is a disjunctive
'or' there."
DR. MIDDAUGH remarked that as a physician, he would be very
pleased with the bill and would support it if, on line 12 of
page 1, a period were added after "medically necessary" and the
remaining language were deleted. He opined that "this list of
qualifiers" creates additional problems of interpretation and
"drops out" other instances when there clearly would be
medically necessary procedures but they've been excluded due to
the "lack of consistency" in the phrases used after "medically
necessary".
CHAIR ROKEBERG opined that the language in SB 364 is clearer
than the language in the regulations.
DR. MIDDAUGH, in response to questions, said that currently,
doctors make the determination regarding a patient's
psychological health, and that the medical degree allows them to
make such determinations without assistance from outside
sources.
CHAIR ROKEBERG asked Dr. Middaugh whether he had any suggestions
regarding language that could be inserted which would address
the issues of nonviable fetuses and fetal anomalies.
DR. MIDDAUGH said he did not have any changes to suggest that
would address those issues. He reiterated his suggestion to
simply delete all text after "medically necessary". In response
to the assertion that the legislature would then "be stuck with"
the regulations, he opined that the language in the regulations
is very appropriate and that defaulting to it would be adopting
"a high standard of practice of medicine."
TAPE 02-61, SIDE B
Number 2340
LISA VILLANO testified via teleconference in opposition to SB
364. She opined that SB 364 will be detrimental to the women
and children of Alaska. She remarked that this issue should be
kept between a woman and her doctor, and she urged the committee
to "keep the bureaucracy out of it." She relayed that according
to an e-mail she received, "these bills only cover abortions if
the woman's health is at risk; fetal anomalies are not
considered." She added that it would be horribly cruel and
barbaric to force a woman to carry to term a pregnancy in which
the fetus is so deformed or ill that it cannot survive outside
the womb. She requested that the committee not pass SB 364.
Number 2275
KRISTEN BOMENGEN, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law (DOL), noted
that as a routine part of her duties, she advises the DHSS. She
said that she has come before the committee in order to address
the legal problems that are posed by the definition as it
appears in SB 364, and that she would do so by turning the
committee's attention to [State Dept. of Health & Social
Services v. Planned Parenthood of Alaska, et al. (07/27/2001)
sp-5443]. She said that the court described this case as one
that concerned the state's denial of public assistance to
Medicaid-eligible women whose health is in danger. She read
from the paragraph that stated:
The range of women whose access to medical care is
restricted by the regulation is broad. According to
medical evidence provided to the superior court, some
women -- particularly those who suffer from pre-
existing health problems -- face significant risks if
they cannot obtain abortions. Women with diabetes
risk kidney failure, blindness, and preeclampsia or
eclampsia -- conditions characterized by simultaneous
convulsions and comas -- when their disease is
complicated by pregnancy. Women with renal disease
may lose a kidney and face a lifetime of dialysis if
they cannot obtain an abortion. And pregnancy in
women with sickle cell anemia can accelerate the
disease, leading to pneumonia, kidney infections,
congestive heart failure, and pulmonary conditions
such as embolus. Poor women who suffer from
conditions such as epilepsy or bipolar disorder face a
particularly brutal dilemma as a result of DHSS's
regulation -- medication needed by the women to
control their own seizures or other symptoms can be
highly dangerous to a developing fetus. Without
funding for medically necessary abortions, pregnant
women with these conditions must choose either to
seriously endanger their own health by forgoing
medication, or to ensure their own safety but endanger
the developing fetus by continuing medication.
Finally, without state funding, Medicaid-eligible
women may reach an advanced stage of pregnancy before
they can gather enough money for an abortion;
resulting late-term abortions pose far greater health
risks than earlier procedures.
Number 2207
MS. BOMENGEN said that the conclusion of the [Alaska Supreme
Court] was that once the state undertakes to fund medically
necessary services for poor Alaskans, it may not selectively
exclude from that program women who medically require abortions.
[Senate Bill 364] endeavors to define the term "medically
necessary", but in doing so, she remarked, it essentially sets
up two groups of women: Those who are very much in need of a
medically necessary abortion, and then other women who may also,
for medically indicated reasons, be facing the necessity of
addressing their medical condition with an abortion as one of
their options.
MS. BOMENGEN said that the decision of the [Alaska Supreme
Court] in the aforementioned case was based on an analysis of
the equal protection clause, and it mandated equal protection of
all those similarly situated, and it defined the group in the
case as "all women for whom abortion is medically necessary.
She reiterated that the definition in SB 364 creates a division
based on the enumerated reasons in [paragraphs (1)(A)(B) and
(2)(A)(B) of the bill]. Therefore, "you'll have a group of
women for whom [an abortion is] medically necessary who fall
outside of those enumerated reasons, and ... that really makes
this definition vulnerable to constitutional challenge," she
warned.
MS. BOMENGEN, referring to the term "would", went on to say:
We've heard testimony that medical practice is not
really done with the kind of certainty that predicts
that a set of medical conditions will lead to a
certain result. If we look at the middle of the
paragraph, the case itself says, "Women with renal
disease may lose a kidney and face a lifetime of
dialysis if they cannot obtain an abortion". But it's
not a certainty; ... the likelihood is a variation ...
[that] runs along a line, and so ... we have the
"may". Also, "pregnancy in women with sickle cell
anemia can accelerate the disease", but it doesn't, in
all cases, accelerate the disease.
How will that determination be made? That is one of
those things [for which] ... a doctor needs to be able
to look at the condition of the patient. To the
extent that the term "would" appears in ... [SB 364's]
definition, I suspect that it will create confusion
for doctors, and [that] applying it will be viewed as
overly restrictive for medical practitioners when they
try to apply it - the term's not based on sound
medical-practice terminology - and that the definition
will likely be found to be constitutionally infirm on
those premises.
Number 2073
MS. BOMENGEN said:
By using "would" rather than "could", it does raise
the level of certainty that you're expecting of the
medical practitioner, and it places that practitioner
in a dilemma if they are trying to make certain that
they are falling within the law, which conscientious
practitioners are doing.
MS. BOMENGEN, in response to a question, pointed out that
notwithstanding the use of the disjunctive "or", "would" gets
read into all of the [qualifiers] listed in the bill.
CHAIR ROKEBERG agreed that "would" is a stronger word than
"could", and noted that according to Black's Law Dictionary,
"would" will be interpreted more as "should". He also mentioned
that the sentences in SB 364 contain both conjunctive and
disjunctive elements.
MS. BOMENGEN, in conclusion, reiterated that use of the word
"would" will create two groups of women, and, in so doing, will
subject the legislation to equal protection challenges.
CHAIR ROKEBERG referred to language on [page 1] lines 4 and 5 of
SB 364, which read, "(a) Except as otherwise required by federal
law". He asked Ms. Bomengen whether this language fully covers
the provisions of the Hyde Amendment, according to her
understanding.
Number 1830
MS. BOMENGEN said, "I assumed that was what it was intended to
do, and when I read it, I don't immediately identify a problem
with it." In response to another question, she concurred that
the provisions of Hyde Amendment are included under the
aforementioned language. In response to a question of whether
she would [be more comfortable] if "could" were used in place of
"would", she said:
As I analyze the case - again, I'm looking at the
language in the case - and the case talks about "may"
and "can" as the words indicating, when a woman has a
particular medical condition, what the outcome might
be. And so simply looking at the words "would" and
"could", "could" works more appropriately with ...
[that] type of medical determination - though I guess
I would defer to a doctor, as well, in terms of how
that language would be applied - but from the
testimony we've heard, a doctor would be working more
comfortably in that kind of predictability when
dealing with a patient.
CHAIR ROKEBERG surmised, then, that using "could" instead of
"would" will provide physicians with more discretion and
flexibility.
MS. BOMENGEN agreed that "would" and "could" are gradations of
different consideration. In response to a question of how to
improve SB 364, she, too, suggested that placing a period after
"medically necessary" on line 12 [and deleting the following
text] would be the better solution. She also suggested that
another way to address [the sponsor's concerns] would be to
focus attention on the regulatory definitions, which have not
been altered since 1997, and ensure that they reflect the
findings of the recent Alaska Supreme Court case, State Dept. of
Health & Social Services v. Planned Parenthood of Alaska, et al.
[(07/27/2001) sp-5443]. She suggested that doctors would have
more of an opportunity to weigh in on the issue if it were
addressed through the process of rewriting the regulations and
their accompanying definitions.
Number 1601
COLLEEN M. MURPHY, M.D., Obstetrician-Gynecologist, testified
via teleconference in opposition to SB 364. She said:
The language of [SB 364] is really not comprehensible
to medical practitioners. Currently, some of our
highest-risk patients that have a risk of dying from a
pregnancy, some of the highest-risk conditions we have
are things like Marfan's syndrome, with enlarged
aortic roots, that with the rigors of labor can
dissect and cause ... [women] to die up to 50 percent
of the time. Likewise, pulmonary hypertension is a
condition that can cause cardiovascular death in
pregnant women that can happen up to 50 percent of the
time. And, again, when I look at your definitions of
"[medically] necessary", how high does a woman have to
risk death in order to meet these standards? Fifty
percent might not be high enough. Ten percent?
Twelve percent? What would you want for your wife,
your mother, your daughter?
So "medically necessary" can be broadly interpreted.
And frankly, even pregnancy itself is twelve times
more dangerous than a safe termination of pregnancy
done in a legal setting; we know that if a woman
carries a pregnancy to term, she (indisc.) twelve
times a higher likelihood of dying, for what was
presumed to be normal pregnancy.... I personally have
a very hard time interpreting "medically necessary",
because what ... the current risk [is] to the woman
that makes it acceptable to the Medicaid program is
not clear.
I do want to also advise your group that currently the
United States now ranks number 12 in the world for the
incidence of maternal mortality. Approximately 1.2
women die per 100,000 in our country, and we're far
behind the Scandinavians, the Japanese, and other
Western European countries. And by basically saying
that we would limit terminations of pregnancy to very
high-risk pregnancies, you're basically asking for
higher risk of maternal mortality, both for elective
terminations of pregnancy and for ones that are higher
risk....
Number 1464
DR. MURPHY, referring to the issue of psychological [health],
said:
That is (indisc.) difficult question for doctors to
discern, and I just want to invoke a very high-profile
case that we recently saw widely discussed in the
media. And that was Andrea Yates; she is [a] woman
who was pregnant multiple times, with a known
depressive disorder, and then went on to basically
murder her children during a psychotic episode, and
now will be spending life in prison. How could a
doctor have predicted that her depressive disorder
would've resulted in such an outcome?
How do I predict the nature of a woman's depression in
the first trimester of pregnancy and how it may worsen
or improve, or even result in psychosis and serious
depression postpartum? I am not a genie; I am not a
magician. But when a woman tells me that she's
depressed and she can't care for this pregnancy or the
eventual child, I greatly fear for the outcome. And
so, again, I find that as a practicing doctor, ... the
terminology you have in your bill is very, very
difficult to interpret; it's very subjective in the
decision making that should be kept between the doctor
and [his/her] patient. Thank you.
DR. MURPHY, in response to a question, replied:
We know that women do get postpartum blues 80 percent
of the time; 15 percent of women will get postpartum
depression; and one in a thousand will get postpartum
psychosis. And when a woman basically tells me that
she's already depressed in early pregnancy, I fear
greatly that she'll fall [into] the more significant
categories, not only during her pregnancy but post-
delivery.
CHAIR ROKEBERG asked whether she would normally prescribe
medication for "that type of psychological manifestations."
DR. MURPHY explained that most medications currently used for
depression are what are called "category C drugs," for which
[physicians] don't have experience pertaining to human
[reproductive] consequences. "We have experience in rats, we
have experience in mice, but we can't predict the outcomes
necessarily in humans," she added. She remarked that experience
with the way those drugs affect human reproductive systems is
now being accumulated by virtue of using them on humans.
Notwithstanding the accumulation of this incoming data, however,
category C drugs are generally to be avoided during pregnancy,
she noted. She said: "And [I] certainly would feel very
uncomfortable ... prescribing category C drugs with the
frequency that they may [be] required, [while] denying a woman
termination of pregnancy when she's requesting it for
psychological reasons."
Number 1289
DR. MURPHY, in response to a question, said:
There's three categories of drugs, actually four
categories of drugs, that pharmacies classify.
Category A is known to [be] safe in humans throughout
all three trimesters of pregnancy. Category B
basically is another classification that we have some
human experience [in], but we should avoid it in the
first trimester. And category C means we only have
animal data. And then category D is a teratogen. And
like right here under your [paragraph] (2)(A), "the
medication required to treat the illness would be
highly dangerous to the fetus"; well there's about 8
to 10 known teratogens - things that are known to
cause birth defects.
[For example] lithium; lithium, when taken in the
first trimester, can cause an anomaly of the heart
called Ebstein's anomaly, [which] occurs [in] one in
10,000 pregnancies - it's called a teratogen.
Accutane, which is taken by mouth for acne, if taken
in the first trimester can cause cranial-facial
deformities - a small head - up to 40 percent of the
time. Is that high enough for you? Or do I make the
woman carry to term to find out she has a baby with a
profoundly abnormal central nervous system.
A woman who takes [the seizure medication] Dilantin in
the first trimester of pregnancy has [a] 10 percent
chance of having a baby with an abnormal brain and
abnormal facial features [and] small fingers. Is that
high enough for you? Methotrexate, if inadvertently
taken in the first trimester of pregnancy, will create
limb deformities. Shall we wait and see, when the
baby turns out? [Diethylstilbestrol] DES, if taken in
the first trimester, can cause abnormal uteri -
cancers - in the women who later go on in their
reproductive age. Is that high enough for you?
Alcohol, the most common teratogen: even the worst
alcoholic will have 40 percent incidence of fetal
alcohol syndrome [FAS]. Is that high enough for you?
She's been drinking every day [for] last two months
[and] she doesn't want to be pregnant. Is that high
enough for you?
DR. MURPHY concluded by saying: "That's what I deal with. It's
not 100 percent. It's [an] ... objective assessment and plan -
the individualized care. You watch a woman cry; you listen to
them tell you about their lives and how hard it is."
Number 1162
REPRESENTATIVE COGHILL remarked that after people are born, they
are not killed just because they suffer from deformities or
because their parents have severe psychological problems, and
that [SB 364] raises a philosophical issue. He opined that Dr.
Murphy was being facetious in asking the question, "Is that high
enough for you?"
DR. MURPHY countered that she is merely offering testimony as a
doctor, an obstetrician-gynecologist, and a scientist. She
said:
Well here I am testifying and telling you that when we
do an informed consent, we're actually scientists; we
don't actually bring in, hopefully, our own subjective
life-views. We basically give patients percentages of
outcomes because nothing is 100 percent. We can tell
you that if you do "this," 25 percent of the time
"this" may happen; if you do "that," another 30
percent. [And then we'd ask], "What do want to have
done?" Nothing ever occurs 100 percent of the time.
And so, frankly, we try to take the data that's
accumulated in the medical literature and give women
their best advice about the outcome of their
pregnancy.
But we don't have the science that your current bill
would suggest, to basically have the decision making
to proceed with this, because in fact nothing is 100
percent. And, again, you're asking me as a scientist,
and a doctor, a woman, an [and] OB/GYN. Currently the
definition of pregnancy is a successfully implanted
fertilized egg, and that's the definition that is
ascribed to by the World Health Organization, the
National Institute of Health, and the [American
College of Obstetricians and Gynecologists]. And,
again, as you well know, ... "unborn child" is not a
scientific terminology; it's called an embryo to eight
weeks, and a fetus thereafter, and then a "live born"
after delivery.
REPRESENTATIVE COGHILL surmised, then, that Dr. Murphy is saying
that the term "would" does not allow doctors enough discretion.
Number 0952
DR. MURPHY replied that in spite all the time and effort that
has gone into this legislation, it can still be interpreted "any
way you want. She elaborated:
And, frankly, it will be interpreted in the privacy of
the office setting; with individual health care, one
woman thinks that the psychological illness ... is
serious enough to impair her health or endanger her
health. Because one woman might find a 5 percent risk
of death too great, another woman might -- like right
now I have a diabetic woman who's basically bled into
her eyes and can't drive right now, who's 23 weeks
pregnant, with renal failure.... She's continuing her
pregnancy even though she's probably going to lose her
kidneys and her eyesight in the next two years. But
she's willing to take that risk to bear a child.
There are other women that don't want to take that
risk. But it's an individual choice.
DR. MURPHY, in response to a question, offered that according to
the available information, only 20 to 30 percent of what most
medical doctors do is data-driven, and that much of the rest is
based on anecdotal evidence and local practice. She indicated
agreement that medicine is both an art and a science: "It is an
art of medicine [in] that we do the best we can with the
available data, and we continue to monitor the results and
hopefully collect more information about outcomes to guide us in
the future."
CHAIR ROKEBERG turned to the issues of fetal abnormalities and
nonviable fetuses. He asked Dr. Murphy to comment on those
issues. He also asked whether carrying a nonviable fetus to
term is a common situation, and what percentage of pregnancies
are "naturally lost or aborted."
DR. MURPHY said:
Well, first off, we basically classify a miscarriage
as a pregnancy lost prior to 20-weeks' gestational
age. After 20-weeks' gestational age, it's called an
intrauterine fetal demise, and it just so happens I
was on the web today doing "question of the day" and
that was [one] of the topics. Interestingly enough,
you call it perinatal mortality; perinatal mortality
includes the death in utero - intrauterine fetal death
- plus neonatal death in the first month of life.
Basically at this time, ... six per thousand
pregnancies are an intrauterine fetal demise, and
about four per thousand pregnancies are neonatal
death. So, actually, intrauterine fetal demises occur
more frequently than postnatal death within the first
month of life. So they occur six per thousand women,
two-thirds of which occur after 35 weeks'
gestation.... About one-half of those, we don't know
why they occur, and the other half are related to
birth defects, maternal disease, [and] other things.
Number 0742
CHAIR ROKEBERG said he thought the rate of spontaneous
termination of pregnancy was much higher.
DR. MURPHY said:
Well miscarriages - those are prior to 20 weeks - they
are much higher. If you look at some of the
reproductive data out there, up to probably 60 to 70
percent of fertilized eggs never implant, and then
once ... [the remaining percentage] implant, [they]
produce pregnancy hormones; about 15 to 20 percent of
all pregnancies will then miscarry. But that's,
again, prior to 20 weeks - that's a miscarriage -
that's not an intrauterine fetal demise.
CHAIR ROKEBERG said he has a concern regarding how the language
in SB 364 would work under certain circumstances such as when
there is a nonviable fetus. He asked, "So those things happen
with some frequency, like even particularly 'FAS children'?"
DR. MURPHY said yes, adding that there are a lot of causes of
pregnancy loss. She noted that if a heartbeat is not detected
prior to 20 weeks' gestational age, if left alone, women will
successfully miscarry spontaneously 80 percent of the time - the
women don't necessarily have to go to dilatation and curettage.
After 20 weeks' pregnancy, she explained, with the majority of
women [in that situation], the tissue will start to degenerate,
which sets up a chemical reaction that results in labor.
However, after retaining a dead fetus for three weeks, Dr.
Murphy pointed out, some of the breakdown products can result in
something called disseminated intravascular coagulation in which
the woman's blood will start to thin, causing her to
spontaneously bleed, and could result in her bleeding to death
when she delivers the fetus and placenta. She elaborated:
So after carrying an intrauterine fetal demise
[longer] than three weeks, we generally will monitor
the woman's blood to make sure she's not developing
that disseminated intravascular coagulation, which
would be jeopardizing to her, rather than continuing
expectant management, waiting for the spontaneous
onset of labor. So basically it's medically indicated
to consider delivering a dead fetus for the sake of
the mother if she hasn't passed the tissue and fetus
within about a month, and psychologically they
ofttimes want to, also, move on.
CHAIR ROKEBERG surmised, then, that the interpretation of any
forthcoming statutory language will occur "by a physician in the
privacy of [his/her] office with [his/her] patient."
Number 0589
CHIP WAGONER, Alaska Catholic Conference, testified in support
of SB 364. He remarked that at the federal level, federal funds
are not used to pay for abortion unless the life of the mother
is at risk, or the pregnancy is the result of rape or incest.
He said, "The United States Supreme Court has upheld that law,
stating that the federal government - under equal protection of
the U.S. Constitution - need not fund any other kinds of
abortions." He added, "They've also said ... that states, under
the U.S. Constitution, are not required to fund abortions."
Referring to 7 AAC 43, he said that the Medicaid regulations
that the court dealt with are what he thinks of as the "mini
Hyde Amendment," and surmised, therefore, that according to
those regulations, the state, too, would only have to pay for
abortions in which the life of the mother is at risk, or the
pregnancy is the result of rape or incest.
MR. WAGONER observed that it was these regulations which the
Alaska Supreme Court recently determined were in violation of
the equal protection provision of the Alaska State Constitution.
He opined that in making that determination, the Alaska Supreme
Court "basically threw out the ... Medicaid regulation relating
to abortions." He referred to comments made by Ms. Hall, and
then offered his interpretation of how doctors get paid for
abortions under the Medicaid program. He then offered his
opinion that when doctors [code] an abortion as uncomplicated,
they are referring to an elective abortion. Mr. Wagoner
repeated the 1997 statistics detailed by Ms. Hall in her opening
remarks, and suggested that the DHSS has more recent statistics.
MR. WAGONER acknowledged that Ms. Bomengen made some good
points, and agreed that SB 364 would create two classes of
women. He opined that the difference between those two classes
of women is that one class would be those whose abortions are
medically necessary, and the other would be those whose
abortions are elective. He said that according to his
knowledge, abortion is the only medical procedure paid for by
the Medicaid program that can be performed for either medically
necessary reasons or as an elective procedure. Because of this,
he opined, there has to be line drawn somewhere in order to
differentiate between medically necessary abortions and elective
abortions.
MR. WAGONER offered the aforementioned 1997 statistics as "proof
positive that that bright line is not there." "And there needs
to be that bright line there," he added, "because Medicaid
dollars to help poor people should be paid for helping poor
people with medical problems, not for people who just want an
abortion." He remarked that although it may be difficult to
draw that line, SB 364 provides that the department shall
promulgate regulations to implement the bill. He again opined
that an abortion coded as an "uncomplicated legal abortion
unspecified" is merely an elective abortion. He also opined
that SB 364 will not in any way interfere with the doctor-
patient relationship, but rather will simply ensure that
Medicaid funds do not pay for elective abortions. He remarked
that the [Alaska Supreme Court] was quite clear when it said
that if the state is going to provide medical services to poor
people, it had to provide medically necessary abortions. He
pointed out, however, that the court did not say that the state
had to provide "abortion on demand."
TAPE 02-62, SIDE A
Number 0001
MR. WAGONER suggested that the sponsor probably took some of the
wording in SB 364 directly from the recent Alaska Supreme Court
case. Referring to the term "would be significantly
aggravated", he opined that such terminology is not as
restrictive as [opponents of SB 364] have suggested. In
response to a question, he surmised that the term
"significantly" is used because of the 1997 statistical
information.
CHAIR ROKEBERG offered that to simply say "adverse physical
condition ... would be aggravated by continuation of the
pregnancy" is sufficient; therefore, there is no need to include
the [qualifier] "significantly". "That just raises the
standards even higher," he noted.
MR. WAGONER agreed.
CHAIR ROKEBERG remarked that having "adverse physical condition"
as a predicate eliminates the need to qualify "aggravated by
continuation of the pregnancy" with the term "significantly",
particularly since that language is conjunctively linked with
[subparagraph (B)].
MR. WAGONER argued that some could say that merely being
pregnant for nine months is aggravating; thus inclusion of the
term "significantly" would clarify further that the abortion was
truly "medically necessary."
CHAIR ROKEBERG asked, "So you're hanging the whole definition of
'medically necessary' on the word 'significantly'?"
MR. WAGONER clarified that he did not mean to imply such. He
suggested that when promulgating regulations, the department
could provide further interpretation on a case-by-case basis.
He opined that if SB 364 passes, it "will clearly show what the
intent of the legislature is."
CHAIR ROKEBERG pointed out that the terms "significantly",
"seriously", and "highly" are adverbs, words which modify - or
qualify - other words. He remarked that after investigating the
term "medical necessity", he felt that there is a need for
physicians to have flexibility. He suggested that using the
aforementioned adverbs will "raise the bar."
MR. WAGONER agreed.
Number 0332
CHAIR ROKEBERG surmised, then, that at issue is not whether an
abortion is "medically necessary"; rather, it appears that in
using the aforementioned adverbs, the goal of SB 364 is simply
to create a higher level of "medically necessary". "You're
shifting the standard ... by using these adverbs; you're'
raising the gradient, but that's ... a sub-definition within
what you're trying to do here," he added.
MR. WAGONER argued that using such terms is not new, for
example, the definition of "emergency hospital services" says,
serious impairment of the health of the individual".
CHAIR ROKEBERG pointed out, however, that that definition uses
the word "serious", not "seriously". He remarked that in terms
of a legal construct, he has concerns regarding [the use of the
aforementioned adverbs].
MR. WAGONER said:
A court, when they first look at this, statutes are
presumed to be constitutional. And I think what they
would have to do ... [would be] to look at how this
was being implemented to see if ... [Ms. Bomengen's]
view that two different classes of really, truly
medically necessary abortions were being created,
where one was being paid for and one wasn't.
CHAIR ROKEBERG remarked that regardless of where one stands on
the issue of abortion, when laws are drafted, they should be
drafted in such a way that they hold up in court.
MR. WAGONER agreed.
CHAIR ROKEBERG reiterated that this issue would more
appropriately be an issue for the JARR to consider, since "a lot
if it has to do with regulations."
Number 0509
SIDNEY HEIDERSDORF, Alaskans For Life, Inc., testified in
support of SB 364. He said:
First of all, we support SB 364; we support any effort
with the goal of trying to restrict state involvement
with the funding of abortion. It would be, certainly,
not ideal in our minds, but we believe that this bill
does contribute or accomplish at least a portion of
this goal, which is to get the state out of the
abortion business. My comments here are going to be
more of a general nature, and - as opposed to specific
portions of the bill - we've been talking all
afternoon ... kind of in sterilized terms, quibbling
over the meaning of words, which I'm not saying is not
important, but ... we're aloof from the real issue.
And we are in fact talking about life and death
issues, and so when we use words like "procedure" and
"termination of pregnancy", I think we're kind of
getting away from the real ... issue at stake for many
... of us....
While we're doing this, babies are being destroyed,
and I couldn't help but think of the statement ...:
"Boys throw stones at frogs in jest, but the frogs die
in earnest." So we're sitting here today talking in
this very sterilized fashion, and we're talking about
a very, very serious issue. I would like to point out
that ... the regulations that people were referring to
... were objected to by the same people saying the
same thing when those regulations were adopted, [at]
hearings for those regulations. So, I'm sure you're
well aware that nothing in this area is going to
satisfy the crowd that supports abortion. And that's
why you get the ... pro-abortion doctors calling; the
doctors that don't do abortions, this is not an issue
with them - they just practice good medicine. So
that's why they're not coming forward, because this is
not an issue that they deal with.
Number 0699
MR. HEIDERSDORF continued:
I would like to say just a few words about this
elective abortion issue. About 25 years ago, in [the]
Hammond Administration, there was an issue which arose
where the state contract with "Blue Cross" forbad the
spending of money for elective procedures. And the
state Department of Administration ordered Blue Cross
to stop paying for those procedures.... You can
imagine what a stir that caused, and it eventually, of
course, went to the governor's office, and at that
time Avrum Gross was the Attorney General. And he
wrote an opinion which said Blue Cross had to pay
because elective abortions had to be done by doctors;
therefore, they were medically necessary. And the
reaction from anyone who looks at what the word
"elective" means, versus "medically necessary", we
should have all just risen up and laughed in derision
about making such a statement.
But that statement stood. And the state had to go
back and tell Blue Cross, "You still have to pay for
these," as if we could not decide what an elective
abortion was.... When the issue is abortion, I think
we all know the rules change, and we've seen that with
our courts and all kinds of things. And of course
when I thought about that, I was thinking about the
fact that there have been claims made in testimony
that all of the abortions paid for by Medicaid funds
this past year were medically necessary, rather than
elective. But I think this is a classical case of
doublespeak, just like Avrum Gross's memo. They're
not all medically necessary. There are many of them -
a very high percentage - [that] are elective. And, of
course, the problem is the wording in the regulations,
which is a terrific problem to try to resolve ...;
when you start using words like "health" and
"psychological indications", you open the door, and
we've got abortion on demand.
Number 0862
MR. HEIDERSDORF referred to the [1997] statistics, and remarked
that in 1998, the legislature made great efforts to restrict
abortion funding and was successful for short periods of time
"until the courts got their hands on the issue." He purported
that although the state paid for [over] 1,000 abortions in 1997,
in contrast, the state only paid for 15 in 1998. He opined that
this means that at least 300 to 400 babies were saved, adding
that this is assuming that some of the women "went elsewhere"
when they were told that Medicaid would not pay for their
abortions.
MR. HEIDERSDORF said:
There are many of us out there who are very thankful
for [what] the legislature has done over the years in
attempting to get a handle on this payment for
abortions. It is an issue that rankles very deep for
many of us, and it's the state's primary
responsibility to protect life.
MR. HEIDERSDORF opined that when the state is involved in paying
for abortions, the state clearly is not living up to that
responsibility. He remarked that in paying for abortions, the
state is promoting abortions. He asked the committee to do
everything possible to minimize state involvement in the
"abortion business," adding that he is happy to have even one
life saved as a result of passage of SB 364.
CHAIR ROKEBERG said that it seems to him that the Alaska Supreme
Court has issued a clear mandate to the legislature [to resolve
this issue]. He observed that in order to do that, it is
imperative that any forthcoming legislation be drafted in such a
way as to withstand legal challenge.
CHAIR ROKEBERG announced that SB 364 would be held over.
ADJOURNMENT
Number 1134
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 6:07 p.m.
| Document Name | Date/Time | Subjects |
|---|