During its 2013 legislative session, the Alaska legislature failed to pass a bill meant to limit the conditions under which a pregnant person enrolled in Medicaid can obtain a Medicaid-funded abortion. Now, state health commissioner William Streur, an appointee of Republican Gov. Sean Parnell, has proposed a new certificate form for doctors to fill out when requesting reimbursement for an abortion performed on a Medicaid patient. The form would reduce the number of ways in which an abortion can be considered “medically necessary” in Alaska, and some doctors predict it could make it more difficult for Medicaid patients to access abortions and for medical professionals to receive funding for such procedures. 

Streur told the Associated Press that he chose to revamp the form after deciding that the Alaska Department of Health and Social Services was seeing physicians’ requests for reimbursements for abortion procedures at a “considerably faster pace,” rather than at a slower pace, as hoped, compared to the same time period last year.

With Steur’s form, pregnant people enrolled in Medicaid whose lives are in danger as a result of their pregnancy or who are victims of rape or incest could have the cost of their abortion procedure reimbursed by the federal government under allowances in the Hyde Amendment. But the checklist of acceptable conditions for reimbursement would reduce access by no longer allowing doctors to just say that an abortion was necessary for a patient’s health, instead creating a list of specific conditions under which a doctor can claim an abortion was done for health reasons. The change also eliminates general health concerns, including mental health, as a reason to fund an abortion. The end result would be exactly what the state board of health and the legislature have been trying to accomplish since 2012. 

Much like the 2013 bill that failed in session, the checklist of allowable health conditions redefines “medically necessary abortion” for pregnant people on Medicaid. Included as reasons the government will support a termination of pregnancy are those that pose “threat of serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily function” and range from diabetes to cancer to “severe infection exacerbated by the pregnancy” or dilation of more than 6 centimeters prior to 22 weeks’ gestation. Mental health as a reason for termination is narrowed explicitly to “a psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.”

Some doctors have expressed concerns that not only will women on Medicaid find it more difficult to access abortion services, but that the medical professionals who provide the service could be dissuaded from doing so as a result of the form, which would make it harder for them to receive abortion payments from the government. “This actually happened to me about 15 years ago,” one doctor told Alaska Public Media. “But if someone from the enforcement branch basically said, ‘I don’t think you’re exercising due clinical oversight, and you’re essentially billing the state for things they shouldn’t be paying for, and you’re breaking the law.’ So from that practical point, that’s chilling to me.”

Planned Parenthood, which opposes the proposal, calls it unnecessary. “The Department of Health and Human Services just did rule making on this last year and instituted a certificate process to ensure that any abortions in Alaska provide with public funding were compliant with existing state law,” Jennifer Allen, public policy director for Planned Parenthood Votes Northwest, told Rewire. “Now, suddenly, not even a year later, they are looking at revising that rule making in a very extreme way.”

Although the commission said that he believes the certification process could better ensure those abortions eligible for federal reimbursement are paid while eliminating situations where state funds are being wasted, Allen finds it difficult to believe that’s the true impetus for the review. “The state of Alaska’s stated reasons for doing this don’t seem to amount to much,” she said. “Their idea is that they will somehow get the federal Medicaid office to pay for more abortions provided in Alaska. Since we know that the federal Medicaid program under the Hyde amendment only pays for abortions for rape or incest, or if the woman’s life is at risk, and studies across the country show that is only 1 percent of abortions, it looks like this rule making process might save the state of Alaska about $1500 a year. Obviously it would cost the state a lot more to do the rule making than the savings it would generate. It seems like that can’t possibly be the real reason behind this rule.”

Like the last health department rule change, Streur’s proposal is up for public comment, and feedback will be accepted through September 27. Even if the changes are approved, pro-choice groups believe a state supreme court challenge would be likely.

“From our perspective this is blatantly unconstitutional based on previous supreme court rulings saying women’s pregnancy decisions need to be given equal protection under the law,” said Allen. “It says all pregnancy decisions [need equal protection], whether it is a decision to terminate or to carry to term.”

Jean Mischel of the state Legislative Affairs Agency says the new proposal is likely unconstitutional, writing in a memo that the proposed changes “create a new and restrictive state standard for determining when abortion services are ‘medically necessary’ without applying this same standard to coverage for other types of medical care services.”