GOP refuses to pay for some abortions

Conflict to come to a head as health department seeks $217,300 in reimbursement

Posted: Thursday, March 01, 2001

No matter what doctors and judges might say, key Republican legislators say there are some abortions they won't pay for.

Although the Department of Health and Social Services is under court order to pay for abortions that physicians certify as "therapeutic," which can refer to protecting the mental or physical health of the mother, indications from top lawmakers this week are that they won't reimburse those expenditures.

That decision might not prevent the ongoing payment of claims, however.

And in the meantime, while an Alaska Supreme Court decision on the issue is pending, lawmakers are starting to refer to "a constitutional crisis."

The conflict results partly because the Alaska Constitution conveys a more explicit right to privacy than the U.S. Constitution.

Under the Hyde Amendment, named for Illinois Republican congressman Henry Hyde, federal law permits Medicaid funding for abortions for low-income women in cases of rape and incest, or when the mother's life is at stake. Currently, the federal government reimburses states for 60 percent of their Medicaid costs.

In 1998, the Legislature prevented the state from using its own funds to pay for any abortions not eligible for federal reimbursement. That led to a legal challenge from Planned Parenthood, which named Health and Social Services Commissioner Karen Perdue in its suit.

In April 1999, Anchorage Superior Court Judge Sen Tan found the new regulation an unconstitutional infringement of the right to privacy, saying the state couldn't discriminate among pregnancy-related services. The state, which appealed to the Supreme Court, said it couldn't pay for the non-Hyde abortions because the Legislature hadn't appropriated funds for that purpose.

Planned Parenthood sought to hold the state in contempt of court. Instead, in September, the judge removed all obstacles to using state funds for those abortions, and claim payments began. In November, the Supreme Court heard oral arguments on the state's appeal.

The issue is coming to a head in the Legislature because the health department is seeking reimbursement for $217,300 that officials project they will have spent on the "non-Hyde" abortions by the end of the fiscal year, on June 30.

From late September through Jan. 29, the state had paid $142,232 on 228 such claims, said Nancy Weller, manager of the department's state, federal and tribal relations unit for Medicaid. Some of the claims dated from 1999, following the original Superior Court decision, she said.

But while administration officials say they have no choice but to pay, pending the outcome of their appeal, Republican legislators disagree.

"I see absolutely no support in the Finance Committee or in our caucus for changing our policy," said Senate Majority Leader Loren Leman of Anchorage.

Senate Finance Co-Chairman Dave Donley of Anchorage called the standoff "classic constitutional crisis material." Co-Chairman Pete Kelly of Fairbanks called the judge's original decision "nonsense."

"It may be the seeds of a serious constitutional confrontation," agreed Senate President Rick Halford, a Chugiak Republican.

Prospects for funding non-Hyde abortions are no better in the House.

"I believe there's a substantial question about separation of powers," said Rep. Eldon Mulder, an Anchorage Republican who is co-chairman of the House Finance Committee. "It's not in the court's ability to require us to do funding for anything."

Mulder said the Department of Health and Social Services was under an order from the Legislature not to spend money on the non-Hyde abortions and therefore should have defied the court judgment.

"In my opinion, the commissioner did not exhaust her (legal) remedies" before payments started, Leman said.

But even if the Legislature doesn't reimburse the department, that won't stop compliance with the court order, said Weller, the department official.

Recent department practice when lawmakers deny supplemental funding requests is stop paying on some claims until the new fiscal year starts, when additional money is available, Weller said. The result is typically a delay in payment, not a denial of claims, she said. "If the Legislature says we don't want to pay for this, that doesn't alleviate us from the court's order."

Leman said he wasn't surprised by that. "When an administration wants to do something, they will find a way to accomplish that."

However, diverting state Medicaid money to the non-Hyde abortions siphons off the state match that could be used to leverage federal reimbursement. Department officials haven't said what Medicaid programs might be affected as a result.

"Maybe we aren't able to pay for a prescription or maybe we aren't able to pay for part of a hospital stay," said Bob Labbe, director of the division of medical assistance. "It's a fairly small piece of that big (Medicaid) pie."

"What they're doing is saying it's more important to spend that money on elective abortions that are not medically necessary ... than it is to spend it on eyeglasses or medications for those with disabilities," Leman said. "We are working to make sure it's not going to happen again."

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