The Alaska Department of Health and Social Services paid for more than nine hundred abortions or abortion-related procedures last year. In a public hearing last legislative session, Commissioner Bill Struer cited the Supreme Court’s decision in State Department of Health and Social Services vs. Planned Parenthood of Alaska as the State’s justification for ignoring a legislative directive in the State Operating Budget that would preclude funding of abortions.

Citing obscure case law, including decisions from other states, and a handful of equally tangential federal decisions, the Alaska Supreme Court concluded that the DHSS regulation in question violated the equal protection provision of Alaska’s Constitution. In the Court’s own words, the regulation banning State funds for elective abortions was alleged to “discriminatorily burden the exercise of a constitutional right.”

The DHSS regulation was crafted in strict compliance with the Federal Hyde Amendment, allowing exceptions for rape, incest, and the life of the mother. In response to a query in the House Health and Social Services Committee earlier this year, Commissioner Struer averred that no abortions falling under the purview of the Hyde Amendment were paid for by DHSS last year. We can therefore assume that of all the abortions paid for by the State of Alaska last year, none were reported to be on account of rape, incest, or to save the life of the mother. It follows therefore that the legal classification of all State-funded abortions in the State of Alaska last year would be “elective.”

The Court’s decision is based upon two flawed premises: that a fundamental constitutional right is “burdened” by a lack of public funding, and that a personal choice constitutes a proper legal basis for a constitutionally protected class. The Superior Court granted summary judgment on the first premise; the Supreme Court based it’s decision upon the second. The Constitution offers no positive rights beyond equal treatment. It merely restrains the government. Further, there is absolutely no legal precedent for elective legal classification with respect to constitutional protections.

While the Alaska Supreme Court declined to review the Superior Court’s legal basis for summary judgment, it upheld the lower court’s decision on the basis of constitutional equal protection. The rationale is completely dependent on the premise that a violation of equal protection obtains on the basis of an elective procedure that the legislature has declined to cover under Medicaid services.

The truth is that all women similarly situated under the regulation in question had exactly the same access to an identical set of services. The real issue with respect to the Court’s decision is whether the legislature has authority to decide which medical services will be covered under the Medicaid program, and which will not. As we all know, the legislature regularly opts to pay for some services, and declines to pay for others. The Court’s decision simply doesn’t comport with the facts.

To be continued . . .

Categories: The Bench Review

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