Alaska Law Limits Which Abortions Can Be Deemed ‘Medically Necessary’

SB 49 requires doctors to select a reason for an abortion being "medically unnecessary" from an approved list—a term that is used to determine which procedures can be funded by Medicaid in the state.

The Alaska Capitol building in Juneau Alaska government via Shutterstock

Alaskan Gov. Sean Parnell signed a bill Thursday that will limit the circumstances under which doctors can deem an abortion “medically necessary”—a term that is used to determine which procedures can be funded by Medicaid in the state.

The federal Hyde Amendment bans states from using federal money to fund abortion services under Medicaid, with an exception for abortions that are deemed medically “necessary to save the life of the woman” or when a pregnancy is the result of rape or incest. Whether an abortion is “medically necessary” is determined by a pregnant person’s doctor. States can expand the program with state funds to include coverage of all abortion services.

The new law, SB 49, requires doctors to select a reason for the procedure being “medically unnecessary” from an approved list. The law says that a procedure is “medically necessary” if it is to “avoid a threat of serious risk to the life or physical health” of a patient, according to a physician’s “objective and reasonable professional judgment.” The law creates a list of 21 reasons why a pregnancy may be a “serious risk to the life or physical health” of a patient, including eclampsia, pulmonary hypertension, and epilepsy. A “catch-all” provision is included in the law stating that an abortion can be performed for “another physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy that places the woman in danger of death or major bodily impairment if an abortion is not performed.”

The list does not include anything about the mental health of the patient.

“There shouldn’t be a list at all. It’s up to women and their doctors to make these personal medical decisions—not an arbitrary list drafted by politicians and bureaucrats in Juneau,” Erik Houser, a spokesperson for Planned Parenthood Votes Northwest, told Rewire.

According to the Alaska Dispatch, Sen. Hollis French (D-Anchorage) said during the floor debate over the legislation that SB 49 would add “special burdens on a woman’s right to choose.” French also questioned the constitutionality of the bill, saying he has “little doubt that this bill we’re passing here today will never go into effect because it’s contrary to our Constitution.”

In 2001, the Alaska Supreme Court ruled that the state must pay for medically necessary abortions if it pays for other procedures deemed medically necessary. In that decision, the court ruled that medication needed by women with conditions like bipolar disorder and epilepsy “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.

The new law is similar to regulations approved by the state health commissioner, which are currently in litigation after a lawsuit by Planned Parenthood of the Great Northwest.

The bill passed the state senate with a provision establishing a women’s health program to provide state-funded “family planning services, health screening examinations, and related services,” but the house stripped that provision from the legislation before it was signed.

“When he signed SB 49 into law today, Governor Parnell reaffirmed his commitment to politicians coming between women and their doctors,” said Jessica Cler, Alaska Public Affairs Manager for Planned Parenthood Votes Northwest, in a statement. “Not only is this legislation unfair, restrictive, and harmful for low-income women and families, it’s also unconstitutional.”

“SB 49 is a blatant attempt to put politicians between low-income women and access to abortion, and by removing the Medicaid Women’s Health Program, the legislature has made it clear that their only interest is restricting women’s pregnancy decisions—not promoting women’s health or reducing unintended pregnancies,” said Cler.

CORRECTION: This article has been updated to reflect the fact that states can choose to cover abortion services using their own funds; they are just unable to use federal money to fund abortion under Medicaid, except in cases of rape, incest, or when the pregnant person’s life is deemed in danger.