Court: Alaska must fund some abortions

Ruling overturns Legislature's denial of funding for the poor

Posted: Sunday, July 29, 2001

JUNEAU -- The state Legislature may not require health officials to deny funding for abortions for poor women whose health may be at risk, the Alaska Supreme Court ruled on Friday.

In its unanimous decision, the state High Court found that denying funding for medically advised abortions violates the state constitutional rights of indigent Alaskan women.

It was the latest in a long-running dispute over state-funding of abortions for Medicaid recipients for reasons other than rape or incest or when the mother's life was in danger.

Planned Parenthood and two doctors filed a lawsuit against the state Department of Health & Social Services in 1998 after the Legislature cut funding by ending a medical program that paid for them. In its place was instituted another program that barred most abortions.

In upholding a ruling by Superior Court Judge Sen K. Tan, the court found that the Legislature violated the constitutional right of indigent women to "equal rights, opportunities and protection."

"The Legislature's spending power does not create a license to disregard citizens' constitutional rights," wrote Chief Justice Dana Fabe.

Karen Perdue, Health and Social Services commissioner, said the ruling was "very clear and unanimous."

"The basic notion is, this is a pregnancy-related service. If you are going to offer all kinds of pregnancy-related services, this is one you offer," Perdue said.

The ruling sparked an immediate reaction from both sides of the volatile debate.

The Alaska Civil Liberties Union, which brought suit on behalf of Planned Parenthood, hailed it as a victory, saying it affirms that Alaskans have more rights under the state constitution than the federal constitution.

"For more than 25 years, the state provided assistance -- as it should -- for medically necessary care regardless of whether women carried a pregnancy to term or had an abortion," said Jennifer Rudinger, executive director of the state civil liberties union.

Sen. Pete Kelly, a Fairbanks Republican and a staunch abortion opponent, accused the state Supreme Court of opening the door for state-funded abortions as elective surgery.

Under provisions of the state program, an abortion is funded after the doctor and the Medicaid recipient deem it necessary. That can include abortions for the mental and physical health of the mother.

Kelly said the state High Court overstepped its bounds in dictating what the Legislature may or may not fund.

"You have a right to an abortion, but we don't have to pay for it. That's all we're trying to say," Kelly said.

"This group is fundamentally changing the role of the judiciary in the political process."

Kelly said he would propose a constitutional amendment to stop state funding for such procedures in the next legislative session.

Fabe said similar restrictions in 15 other states have been rejected by state supreme courts.

The department estimates this would annually fund abortions for between 600 and 800 poor women in the state, said Bob Labbe, director of the division of medical assistance. Alaska spend $324,312 last fiscal year for such procedures, Labbe said.

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