IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
Planned Parenthood Great Northwest, )
Hawai‘i, Alaska, Indiana, Kentucky, )
)
Plaintiff, )
v. )
)
State of Alaska; et al., )
)
_ _ _ _ _ _Defe_ndan_ts. _ )
) Case No. 3AN-19-11710CI
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Introduction
Plaintiff Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky (Planned
Parenthood) filed this lawsuit challenging AS 18.16.010(a)(1), which prohibits anyone other than a
licensed physician from providing abortions. Planned Parenthood argues that applying the restriction
to otherwise qualified physician assistants and advanced practice registered nurses violates Article I,
section one of the Alaska Constitution, which protects the right to equal protection, and Article I,
section 22 of the Alaska Constitution, which protects the right to privacy. Planned Parenthood asks
the court to enjoin the prohibition on these advance practitioner clinicians from performing first
trimester medication abortion and aspiration abortion. The court held a trial to determine whether
prohibiting otherwise qualified medical clinicians from providing medication and aspiration abortion
substantially burdens patient's fundamental privacy right to make reproductive health care decisions
and access abortion care protected by the Alaska Constitution, or violates patients' state constitutional
right to equal protection. Based on the evidence presented, the court concludes that, as applied to
otherwise qualified medical clinicians, AS 18.16.010(a)(1) imposes a substantial burden on patients'
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fundamental privacy rights to make reproductive decisions and access abortion care, and their rights
to equal protection,1 and permanently enjoins the State from enforcing AS 18.16.010(a)(1) against
otherwise qualified medical clinicians performing medication and aspiration abortion.2
Course of Proceedings
Planned Parenthood filed a complaint against the State of Alaska challenging AS
18.16.010(a)(1), which prohibits abortion unless performed by a physician licensed by the State
Medical Board.3 The complaint alleges that AS 18.16.010(a)(1) violates the privacy, liberty, and
equal protection rights of patients seeking abortion,4 as well as the equal protection rights of
Planned Parenthood clinical providers whose scope of practice5 would otherwise include
providing medication and aspiration abortion. 6
This court entered a limited preliminary injunction enjoining enforcement of AS
18.16.010(a)(1) with respect to medication abortion after concluding that Planned Parenthood had
demonstrated probable success on the merits of its claims that prohibiting otherwise qualified
clinicians from performing medication abortion violates the privacy and equal protection rights
of patients seeking such care.7
The court also concludes that AS 18.16.010(a)(1) violates the equal protections rights of advanced practice
clinicians whose scope of practice otherwise includes medication or aspiration abortion.
2 See Sagoonick v. State, 503 P.3d 777, 796 & n. 96 (Alaska 2022) ("A litigant may challenge the constitutionality of
a statute or government policy in two different ways. A facial challenge alleges that a statute or policy is unconstitutional
'as enacted'; [the court] will uphold a facially challenged statute or policy 'even if it might occasionally create constitutional
problems in its application, as long as it has a "plainly legitimate sweep." (quoting Planned Parenthood of the Great Northwest
v. State, 375 P.3d 1122, 1133 (Alaska 2016)) (internal citations omitted) An as-applied challenge alleges that 'under the facts
of this case [,] application of the statute [or policy] is unconstitutional. Under other facts, however, the same statute [or
policy] may be applied without violating the constitution."' (quoting State v. ACLU ofA laska, 204 P.3d 364, 372 (Alaska
2009)).
3 Compl. (filed 12/12/2019).
4 ALASKA CONST. art. I § 1, 22.
5 Scope of practice refers to what services or types of care the practitioner is permitted to perform and under what
circumstances. Scope of practice is defined through regulation and also by the education, training, and knowledge of the
practitioner.
,r,r
6 Compl. 111-118.
7 Order on Motion for Preliminary Injunction (entered 11/2/2021).
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Both parties filed motions for summary judgment. 8 This court denied both motions after
concluding that there were questions of fact whether prohibiting otherwise qualified medical
clinicians from providing medication and aspiration abortion substantially burdens patients'
fundamental privacy right to make reproductive health care decisions. 9
°
The court held a bench trial and heard the testimony of five witnesses. 1 Following trial,
the parties filed proposed findings of fact and conclusions of law.11 Based on the evidence
presented at trial, the court makes the following findings of fact and conclusions of law.
Findings of Fact
1. Alaska Statute 18.16.010(a)(1) was enacted in 1970 as part oflegislation legalizing abortion
in Alaska. 12 It prohibits abortion unless "performed by a physician licensed by the State
Medical Board."13 Knowing violation of AS 18.16.010(a)(1) is a criminal offense
punishable by up to five years' imprisonment and a fine of up to $1,000.14
2. Tonya Pasternak, M.D., the Alaska Medical Director for Planned Parenthood and a board
certified obstetrician-gynecologist, testified as a hybrid fact and expert witness. As Medical
Director, Dr. Pasternak is responsible for ensuring Planned Parenthood's policies and
procedures are followed, consultation on complicated cases, physician recruitment and on
boarding, training clinical staff, annual reviews of physicians and advanced practice
clinicians, coordination of staffing, leadership and strategic planning, as well as direct
Plaintiffs Motion for Summary Judgment (filed 12/19/2022); State Defendant's Motion for Summary Judgment
(filed 12/19/2022).
9 Order on Cross Motions for Summary Judgment (entered 5/23/2023).
10 11/13/2023-11/17 /2023.
11 Plaintiff's Proposed Findings of Fact (filed 1/26/2024); Proposed Findings of Fact (filed 2/26/2024); Reply in
Support of Plaintiffs Proposed Findings of Fact (filed 3/12/2024).
12 Ch. 103, § SLA 1970.
13 AS 18.16.010(a)(1).
14 AS 18.16.010(c).
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patient care. She is an expert in the norms and standards for providing gynecological
services, including abortion, the practice and training of medical staff, including non
physicians, and the scope of practice and competence of advanced practice clinicians.15
3. Dr. Pasternak testified that AS 18.16.010(a)(1) limits the number of days that Planned
Parenthood can offer abortion services, placing a burden on patients seeking such care by
causing delay, contrary to their health. She testified that AS 18.16.010(a)(1) does not
enhance patient safety and instead imposes both a psychological burden and potential
medical burdens on patients whose access to abortion is delayed.
4. Dr.Joanne Spetz, Ph.D., testified as an expert in the advanced practice nursing workforce,
scope of practice regulations for advanced practice clinicians, and the impact of scope of
practice regulations on quality, cost and patient access to care. Dr. Spetz testified that
advanced practice clinicians are highly educated professionals who play a growing role in
the provision of care in the United States, and that restrictions on scope of practice for
advanced practice clinicians are associated with reductions in access to care without
benefi.tting quality of care. According to Dr. Spetz, APCs are more likely to accept
Medicaid and to practice in community health centers and rural health settings. APCs
therefore play an essential role in delivering care for patient populations than are low
income, or more isolated or rural. There is a large body of evidence that demonstrates the
quality of care, including abortion care, provided by APCs within their scope of practice is
comparable to care provided by physicians and that APCs improve access to care. 16 Dr.
15 Advanced practice clinicians (APCs) include advanced practice registered nurses (APRNs) and physician
assistants (PAs).
16 Dr. Spetz cited a study of rates of emergency department use following Medicaid expansion. States that permitted
nurse practitioners to practice autonomously had very little increases in the emergency department visit rates than states
with more restrictions, which experienced steep increases in emergency department visits with Medicaid expansion.
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Spetz testified that AS 18.16.010(a)(1)'s restriction lacks a basis in evidence and research
on the safety of APC practice generally and with respect to abortion care specifically, and
. .
is inconsistent with the way Alaska otherwise regulates the practice of APCs. Dr. Spetz
did not conduct research or offer opinions based on data gathered in Alaska, instead basing
her opinion on national data or studies in other states.
5. Dr. Shanthi Ramesh, M.D., Chief Medical Officer at Virginia League for Planned
Parenthood, testified as an expert in norms and standards for providing gynecological
services, including abortion and miscarriage, and in the practical capabilities of medical
staff, including non-physicians. Dr. Ramesh testified that AS 18.16.010(a)(1) imposes
medically unnecessary restrictions on titime-sensitive health care that could otherwise be
safely provided by an APC, limiting access to care. She testified that AS 18.16.010(a)(1)
does not benefit patient safety and places additional burdens on patients' financial,
logistical, psychological, and physical barriers to care by limiting the number of providers.
According to Dr. Ramesh, the licensing and infrastructure of the Board of Medicine and
Board of Nursing adequately regulate health care delivery based on medical evidence.
6. Amy Bender, M.S.N., A.R.N.P., F.N.P.-B.C., former lead clinician at Alaska Planned
Parenthood, also testified as a hybrid fact and expert witness. At the time of trial Bender
had moved out of state but continued to provide telehealth and follow-up care to Planned
Parenthood patients in Alaska. In her role as lead clinician, Bender supervised APCs at
Planned Parenthood and provided direct patient care. Bender testified as an expert in the
provision of reproductive healthcare in Alaska. Bender testified that abortion is within the
scope of APC practice, that AS 18.16.010(a)(1) harms patients and does not reflect medical
standards or provide any health benefit.
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7. Dr. Ingrid Johnson, Ph.D., testified as an expert in intimate partner violence and rural
urban dynamics in Alaska and unique barriers facing victims of intimate partner violence.
Dr. Johnson testified that AS 18.16.010(a)(1) increases risk for victims of intimate partner
violence to experience exacerbated violence and be unable to receive abortion care within
their gestational limit. She testified that barriers for rural victims of violence are more
extreme than for other pregnant patients attempting to access abortion. Dr. Johnson
testified regarding Alaska's high rates of violence against women, to the increased risk for
unintended pregnancy and pregnancy complications for victims of violence, as well as the
increased risk of homicide and other violence for pregnant victims of intimate partner
violence. Dr.Johnson testified regarding coercive control (including reproductive control)
and monitoring behaviors of perpetrators of intimate partner violence that create barriers
for victims seeking abortion care. According to Dr. Johnson, in light of those barriers, as
well as limited economic barriers and limited social networks, victims of intimate partner
violence face significant barriers in accessing abortion care and that AS 18.16.010(a)(1)
amplifies those barriers.
8. Planned Parenthood, a not-for-profit corporation, is the only known provider of abortion
in Alaska. It operates three health centers in the state, in Fairbanks, Anchorage, and Juneau.
Planned Parenthood provides reproductive and sexual health services, including well
person examinations, birth control, testing and treatment for sexually transmitted
infections, miscarriage care, cancer screening, gender-affirming care, pregnancy testing,
and abortion.
9. APRNs include certified nurse midwives (CNMs) and nurse practitioners (NPs). APRNs
and PAs hold advanced degrees, have rigorous licensing requirements, and are advanced
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practice clinicians (APCs). Nationally, APCs provide the majority of obstetric and
gynecologic care. This is also true at Planned Parenthood's health centers.17
10. Planned Parenthood provides medication abortion at all of its health centers through
eleven weeks of pregnancy. It provides aspiration abortion in Fairbanks and Juneau
through thirteen weeks, six days, and aspiration and other procedural abortions through
seventeen weeks, six days at its Anchorage center. To obtain an abortion after seventeen
weeks, six days, a patient must leave Alaska. Planned Parenthood relies on per diem
physicians to provide abortion care to comply with AS 18.16.010(a)(1).
11. There are two primary methods of abortion: medication abortion and procedural abortion.
In the first eleven weeks of pregnancy patients are eligible for medication and aspiration
abortion, a form of procedural abortion. Nationally, approximately 90% of abortions are
performed during the first trimester. In Alaska, 89% of abortions take place during the
first twelve weeks of pregnancy. 18
12. Medication abortion involves taking medication to end a pregnancy. Medication abortion
typically is performed through administration of two medications: mifepristone and
misoprostol. Mifepristone blocks the hormone progesterone, which is necessary to
maintain pregnancy. Misoprostol, typically taken up to 48 hours after administration of
mifepristone, causes the cervix to open and the uterus to contract, expelling the contents
of the uterus. Medication abortion does not require instruments, anesthesia, or sedation.
Mifepristone and misoprostol are also used to treat miscarriage.
17 At the time of trial, Planned Parenthood currently employed primarily APRNs and contracted per diem with a
PA.
1s Based on data from 2020.
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13. The medication regimen was approved by the Food and Drug Administration (FDA) in
2000.19 The initial approval included a requirement of physician supervision (which did
not require the physician to be on-site), later removed in 2016. Between 2019 and 2023
the FDA lifted additional restrictions, including surrounding in-person dispensation and
telehealth. 20 Medication abortion is extremely safe, with a major complication rate of .31
percent.
14. In procedural abortion, a provider uses instruments to end the pregnancy and empty the
uterus. Aspiration is a form of procedural abortion and may be performed up to fifteen
weeks. To perform an aspiration abortion, the clinician uses a speculum to visualize the
cervix, dilates the cervi.'{, inserts a tube into the patient's uterus through the cervix and uses
suction to remove the contents of the uterus. Aspiration abortion is not surgery. It is
extremely safe, with a major complication rate of .16 percent. After fifteen weeks patients
seeking abortion care are eligible for a dilation and extraction (D&E) abortion. 21
15. Some patients require aspiration abortion because they are not eligible for medication
abortion due to contraindications such as having an intrauterine contraceptive device
(IUD), ectopic pregnancy, hemorrhagic disorder, anemia, severe liver or kidney disease, or
19 The 2000 approval was of Mifeprex, the brand-name mifepristone.
20 In Alliance for Hippocratic Medicine, et al v. U.S. Food and Drug Admin., 668 F.Supp.3d 507 (N.D. Tex. 2023), a Federal
District Court entered a preliminary injunction enjoining FDA's 2000 approval of mifepristone (as well as FDA's further
actions in 2016 (extending the maximum gestational age from 49 days to 70 days, eliminating the requirement that
misoprostol be administered on-site at a clinic, removing the requirement for an in-person follow-up exam, and allowing
healthcare providers other than physicians to dispense), 2019 (approving a generic mifepristone), and 2021 (removing the
in-person dispensing requirement)) after concluding that the plaintiffs had shown substantial likelihood of success on the
merits of their claim that the FDA 's 2021 authorization of mail or mail-order pharmacy dispensation of mifepristone and
that FDA's 2000 approval of mifepristone through its regulations accelerating approval of new drugs for serious or life
threatening illnesses, 21 C.F.R. § 314.520. (Subpart H), were unlawful. Ultimately the Supreme Court ruled that the
plaintiffs, doctors and medical associations that did not prescribe or use mifepristone but wanted to make the medication
less available for others, lacked standing to pursue their claims. Food and Drug Admin. v. Alliance for Hippocratic Medicine, 602
U.S. 367, 372-72, 385-97 (2024).
21 D&E is a similar procedure to aspiration abortion, but involves the use of instruments in addition to suction to
empty the uterus.
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taking blood thinner medication. Some patients require medication abortion because they
are not eligible for aspiration abortion due to contraindications including complex cardiac
disease or uterine fibroids.
16. Some patients prefer one form of abortion over the other. Medication abortion allows
patients to end their pregnancies in their own home or place of their choosing, and to
choose a time that best fits their other obligations. Medication abortion is experienced
similarly to miscarriage. Medication abortion also allows a patient to disguise their abortion
as a miscarriage, which can be important for patients who wish to keep their abortion
private. Some patients who have experienced rape or sexual trauma prefer medication
abortion to avoid the trauma of having instruments placed in the vagina or being placed
in the position for a pelvic exam with stirrups on the table. Some patients prefer aspiration
abortion because the procedure is completed in the health center in the presence of
medical staff.
17. The most common complications from medication abortion are excessive bleeding,
incomplete abortion,22 failed abortion,23 infection, and allergic reaction (extremely rare).
The risk of excessive bleeding increases with gestational age. The most common
complications from first trimester aspiration abortion are excessive bleeding, cervical
laceration, uterine perforation, and infection. Complications from aspiration are similar to
complications secondary to IUD insertion. Complications from medication and aspiration
abortion requiring intervention are usually managed by medication and/ or aspiration and
very rarely require hospitalization.
22 Meaning not all of the contents of the uterus are emptied.
23 Continuing pregnancy.
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18. Miscarriage occurs in approximately 10% of patients who know of their pregnancy.
Miscarriage management involves three types of care: waiting for the body to pass the
pregnancy or tissue, medication management, which uses medication to cause the uterus
to contract and pass the pregnancy, and an aspiration procedure to remove the pregnancy
tissue. Medication management of miscarriage involves the use of mifepristone and
• misoprostol in the same dosages as for medication abortion and requires the same provider
skills. 24 Incomplete abortion is when a patient has a miscarriage or medication abortion
and has not passed all of the tissue, causing cramping and bleeding. Aspiration is typically
used to treat incomplete abortion, is similar to aspiration abortion (e xcept it usually
requires less dilation of the cervix) and requires the same provider skills as aspiration
abortion.
19. Abortion is safer than pregnancy. Approximately half of pregnancy patients experience
complications and 10% are hospitalized for complications (this does not include
hospitalization secondaty to labor and delivery). Common pregnancy complications
include urinary tract infections, hypertensive disorders, worsening of other chronic
conditions and mental health conditions. Some of the more serious complications, such as
blood pressure and complications related to cardiac disease, manifest later in pregnancy.
20. Abortion is safer than childbirth. Common complications include the need for delivery by
cesarean section, a major abdominal surgery requiring hospitalization, perianal lacerations,
wound complications, blood pressure issues, and postpartum depression. Mortality rates
for patients who carry pregnancies to term are higher than for abortion patients. Alaska
24 Sometimes medication management involves only misoprostol.
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maternal mortality rates are twenty times higher than the mortality rate of patients who
terminate their pregnancies. Patients living in rural communities, patients with lower
socioeconomic status, lower educational attainment, chronic medical conditions, or less
access to prenatal or postnatal care, as well as Black women are disproportionately affected
by high mortality rates.
21. Abortion is ti.time-sensitive health care. The risks of abortion methods increase with
gestational age. As pregnancy progresses, the abortion procedure becomes more complex
and patients who are delayed in accessing abortion care may experience increased medical
risks. In addition, there are gestational age limits for types of abortion, as well as where
those services may be obtained.
22. Patients seek to terminate their pregnancies for a variety of reasons. Some have a medical
condition that is worsened by pregnancy. Some are in unstable situations with a partner or
family. Many patients are already mothers who do not desire additional children or desire
to control the ti.ming of additional children. Some patients' pregnancies are the result of
sexual assault. Some patients experience inti.mate partner violence and do not want to
parent with that partner.
23. Abortion care is typically siloed to providers like Planned Parenthood. Nationally, there
are many state-level restrictions on abortion care, there is stigma associated with providing
abortion care, and there are institutional barriers such as religious hospitals restricting
abortion. As a result, abortion care is mostly available in urban centers where providers
are able to live without harassment and threats. Alaska is no different.
24. APC provider categories emerged in the 1960s. APCs hold advanced degrees and have
rigorous licensing requirements. In Alaska, APCs' scope of practice is regulated by state
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boards, as limited by the individual knowledge and education of the APC. APRNs in
Alaska are authorized to perform any medical diagnosis and treatment within their scope
of practice. Like most states, Alaska authorizes APRN s to practice without physician
supervision or relationship. PAs practice under the supervision of a physician and may
perform any medical procedure within the scope of practice of the physician.25
25. APCs provide medical care autonomously and prescribe medications, including
medication such as narcotics, that carry higher risks than abortion. APCs provide the
majority of women's health care nationwide. The Alaska Board of Medicine and Board of
Nursing recognizes a broad scope of practice for APCs. APCs in Alaska can perform many
of the same tasks as physicians, including examinations, diagnosis, treatment, prescription
and dispensation of medication.26
26. APCs routinely manage pregnancy and childbirth in Alaska. APCs provide routine prenatal
care, screen for and diagnose serious pregnancy complications, manage vaginal deliveries,
repair vaginal lacerations, and routinely manage serious complications such as postpartum
hemorrhage. At Planned Parenthood, APCs provide a broad range of reproductive health
services, including preventative care, cancer screenings, annual exams, pap smears,
screenings for sexually transmitted disease, contraception, and ultrasounds. Abortion is
the only medical procedure that is otherwise within their scope of practice that APCs are
barred from performing in Alaska.
27. But for AS 18.16.010(a)(1), abortion is or would be within the scope of practice of APCs.
Properly trained, APCs can provide medication and aspiration abortion as safely as
25 AS 08.64.170(a)(1); 12 A.AC 40.430(a).
26 AS 08.64.170; AS 08.68.850.
.,
1
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physicians. There are no greater risks of complications from abortion performed by an
APC than by a physician. Planned Parenthood APCs routinely treat complications arising
from abortion.
28. APCs are authorized to provide medication abortion in twenty states and Washington,
D.C., and aspiration abortion in sixteen states and Washington, D.C. In clinics that have
physicians, permitting APCs to perform abortion increases the number of clinicians
available to provide the service and expands the number and available times for abortion.
29. Planned Parenthood has policies and procedures to ensure competency in the skills its
providers utilize, and that its clinical staff only provide care within the boundaries of their
skills and training. Planned Parenthood's medical standards and guidelines are regularly
updated.
30. Planned Parenthood APCs provide all care leading up to abortion and provide nearly all
follow up care and treatment of complications. APCs are more likely than physicians to
manage abortion complications because they are at health centers more frequently.
Planned Parenthood APCs staff the 24-hour hotline for post-abortion concerns, triaging
patient calls, providing follow-up care and treatment, and referring for a higher level of
care if necessary. As a result of AS 18.16.010(a)(1), patients can be prevented from
receiving abortion from the clinical provider they are familiar with and with whom they
have a relationship.
31. Treatment of abortion complications is medically identical to medication and aspiration
abortion, and similar to miscarriage treatment. A patient may experience excessive bleeding
with medication abortion. An APC can assess a possible incomplete abortion through
ultrasound and treat it with medication or aspiration. This is the same treatment used to
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provide abortion or treat miscarriage complications. There is no difference in skill or
training required to provide such treatment for incomplete abortion, abortion, or
miscarriage management. The doses of medication used for medication abortion are the
same as those used for miscarriage management. Similarly, aspiration for miscarriage
management is medically identical to aspiration abortion and requires the same skill and
training.
32. APCs are authorized to treat miscarriage in Alaska with medication or aspiration, and it is
within their scope of practice. Planned Parenthood APCs in Alaska are not currently
trained to and do not provide aspiration in Alaska (for miscarriage or to address
complications from abortion). There are relatively low numbers of patients requiring
aspiration for miscarriage management or for incomplete abortion. In light of this, and
because under AS 18.16.010(a)(1) APCs may not perform aspiration abortions, an APC
would need to go out of state to gain sufficient experience and practical training to perform
aspiration procedures in Alaska. 27
33. Planned Parenthood APCs routinely provide care similar in risk and complexity to
abortion care. APCs treat patients for ectopic pregnancies using Methotrexate, a
medication that stops a pregnancy from growing. Medication abortion is safer than
Methotrexate treatment of ectopic pregnancy. APCs insert and remove intrauterine
devices (IUDs), which requires steps similar to aspiration.28 APCs also provide treatment
for HIV, and gender-affirming care, which can be more complex than abortion care.
27 At least one Planned Parenthood APC did this but then relocated out of state and is therefore not performing
aspiration in Alaska.
28 The clinician may have to visualize and dilate the patient's cervix and insert instruments through cervix into the
uterus.
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34. Since the preliminary injunction was entered, APCs have also been providing nearly all
medication abortion. Because Planned Parenthood APCs were already extensively trained,
some required only minimal training and were able to begin providing medication
abortion within a day of entry of the injunction. The safety protocols for follow-up are the
same whether the abortion is provided by a physician or APC.
35. Planned Parenthood's complication rate has remained low since the injunction.
Complication rates have not changed from when only physicians provided medication
abortion, nor has the rate of hospitalizations increased (following entry of the injunction
there were no medication abortion complications requiring hospitalization).
36. There is no medical reason why properly trained Planned Parenthood APCs could not
continue to provide medication abortion, no medical reason why properly trained Planned
Parenthood APCs could not provide aspiration abortion, and no medical reason why
abortion is regulated more restrictively than any other reproductive health care.
37. The evidence was not sufficient for the court to quantify, even roughly, the number of
patients who, as a result of AS 18.16.010(a)(1), were delayed in accessing abortion care,
were unable to obtain a medication abortion or aspiration abortion due to gestational age
as a result of the physician requirement, had to leave the state, or were unable to access
care at all. The total number of abortions Planned Parenthood performed after the
injunction did not rise, suggesting that, notwithstanding AS 18.16.010(a)(1), Planned
Parenthood has been able to meet the overall demand for abortion care. And, as discussed
in further detail below, wait times for abortion care appear to have increased.
38. Dr. Pasternak's and Bender's testimony regarding AS 18.16.010(a)(1)'s impact on patients
seeking abortion care at Planned Parenthood in Alaska was largely anecdotal and
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impressionistic. In their testimony regarding the impact of AS 18.16.010(a)(1), Bender and
Dr. Pasternak relied on their experience treating patients, on patient accounts and on
accounts of other clinicians regarding patient difficulties with scheduling. Planned
Parenthood did not gather or present data regarding individual patients. Individual patient
charts reflect information such as whether patients had complicating medical conditions
or were victims of assault, but not whether patients had attempted to schedule an earlier
appointment. Patients sometimes offer information at appointments about their
difficulties scheduling or attending their appointments. But providers do not typically ask
patients why they did not get to a health center sooner to access abortion care because it
is not relevant to the care they need and providers avoid questions that may come across
as judging the patient.
39. Bender and Dr. Pasternak testified credibly regarding their knowledge and experience of
patients who were impacted by delay caused by AS 18.16.010(a)(1). This includes patients
who scheduled appointments on days a physician was not available because the patient did
not decide to terminate the pregnancy until after making the appointment (e ither because
they did not know they were pregnant or had not decided), or sometimes due to scheduling
errors for patients seeking an abortion at the time they made the appointment.29 Neither
witness quantified how frequently this happened, but Bender testified credibly that it was
"not infrequent" and that patients reported challenges and concerns regarding their ability
to return to the clinic on a day a physician was available. Bender also testified that she
29 Bender had more direct experience with this type of patient interaction, because she could not provide abortion
to a patient seeking one and would have to counsel them about needing to return on a different day when a physician was
present. As a licensed physician Dr. Pasternak would not be in such a situation with a patient but was aware of such events
through her work as medical director.
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encountered situations where the need for a second appointment would take a patient
outside of the window for a medication abortion or for eligibility for abortion within the
state. Again, she did not quantify how frequently this occurred, but testified that it was
"not uncommon."30 Bender also testified that she was aware of patients who were unable
to obtain an abortion and continued their pregnancy because they could not return for a
second appointment in time. They also testified that, as a result of the preliminary
injunction, they have been treating patients with medication abortion at earlier gestational
ages overall.
40. The number of patients who experience significant adverse impacts as a result of AS
18.16.010(a)(1) is low, likely very low, compared to the overall number of abortion patients
who receive care at Planned Parenthood. Planned Parenthood overcomes the barrier
presented by AS 18.16.010(a)(1) through its staffing and scheduling decisions, successfully
so in the vast majority of cases.
41. Planned Parenthood does not employ a full-time physician in Alaska. It employs per diem
physicians as needed. APCs deliver the majority of other services offered by Planned
Parenthood. This model allows Planned Parenthood, a nonprofit, to keep its costs down.
The per diem physicians all have other practices with highly variable schedules, and this
model results in some variability in scheduling. Scheduling per diem physicians at Planned
Parenthood requires consistent assessment and balancing.
30 Bender estimated that prior to the injnnction, one in fifteen patients had concerns about whether they would be
able to return for an appointment within gestational limits for medication and that she could think of 20 to 30 patients
who ultimately were nnable to get an abortion in the state due to gestational limits. Based on her testimony and prior
deposition testimony, these estimates are highly speculative.
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42. Of Planned Parenthood's clinics, Fairbanks is the most difficult to staff with per diem
physicians. At times Planned Parenthood has not had a physician provider in Fairbanks
and needed to fly providers in from other locations. Flying physicians is difficult because
it increases the burnout rate of that physician due to the long day and weather delays can
result in rescheduling. To contract with sufficient numbers of per diem physicians to be
able to provide abortion services on every day a clinic was open would significantly
increase Planned Parenthood's expenses and administrative burdens.
43. Before the preliminary injunctions, Planned Parenthood offered medication abortion
approximately one to two times per week at each clinic, depending on physician availability,
including by telemedicine. Generally, there were regular days abortion was expected to be
available, but schedules varied somewhat in light of physicians' schedules. Aspiration
abortion was available less frequently.
44. Plaintiffs Exhibit 1022 is a chart that purports to map out the number of days each type
of abortion was available at each health center before and after the injunction. Some of
the other evidence admitted at trial conflicted with the information in the exhibit. For
example, according to Exhibit 1022, medication abortion was available before the
injunction once per week at each clinic. But the other evidence at trial indicated that
medication abortion was available more frequently, particularly through telemedicine.
While there were preferred days to schedule abortions at each clinic, the days that physician
actually staffed the clinics varied and there was therefore not a truly fixed schedule for
available days for abortion at each clinic.
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45. Since the injunction, medication abortion is available at Planned Parenthood's health
centers every day the center is open. In Juneau, it is available three days per week, in
Fairbanks, four days per week, and in Anchorage, si..x days per week.
46. Planned Parenthood offers aspiration once per month in Juneau (typically the third
Wednesday of every month) and Fairbanks (typically the first Wednesday of every month)
through thirteen weeks six days.31 Planned Parenthood offers procedural abortion,
including aspiration, through seventeen weeks six days, once per week in Anchorage
(depending on physician availability). The injunction did not change the availability of
aspiration. 32
47. Since the injunction, patients seeking medication abortion have more flexibility in
scheduling their appointment. While the number of total abortions performed by Planned
Parenthood has decreased, the number of medication abortions has increased. Medication
abortion increased by approximately 33 percent in the year following the injunction
compared to the year before. However, medication abortion has also increased nationwide
during the same period and Planned Parenthood changed its protocols to eliminate or
streamline follow-up requirements for medication abortion. Medication abortion increased
sufficiently in Fairbanks to reduce the number of aspiration abortions such that Fairbanks
began offering aspiration once per month, rather than twice.
48. Since the injunction, patients have been able to receive abortion care earlier in their
pregnancies. Before the injunction, it was not unusual for a patient seeking medication
31 There have been times that Planned Parenthood offered aspiration abortion twice per month in Fairbanks
depending on physician availability.
32 Patients seeking abortion or miscarriage care requiring aspiration still face delays due to physician availability.
With respect to miscarriage care, this can increase the patient's risk of infection.
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abortion to schedule an appointment for abortion after the gestational age limit for
medication abortion. After the injunction this has occurred less frequently.
49. Patients seeking abortion services face numerous obstacles. Patients need to take time off
of work, school, and childcare responsibilities. Patients who reside outside the three cities
where Planned Parenthood operates must make travel arrangements. It is not unusual for
patients seeking abortion care to need to reschedule their appointments due to the other
barriers they face. Limiting the available days on which patients can make appointments
can make it more difficult for patients to access care.
50. These limits have a disproportionate impact on people who are low-income, have limited
access to transportation, or have inflexible work or caregiving schedules. Many patients
must pay for travel and childcare and take time off of work to obtain abortion care. Delays
can increase these costs, particularly if the delay results in a patient exceeding the
gestational age for aspiration abortion in Fairbanks and Juneau who must then travel to
Anchorage. Patients sometimes schedule and reschedule their appointments due to their
personal obligations, contributing to delay.
51. It is not unusual for the limited availability of abortion appointments to result in a delay
of a week or more. It is also not unusual for a patient to have to return for successive
appointments. Prior to the preliminary injunction, a patient seeking medication abortion
may be ineligible due to gestational age and have to return on a day a physician is available.
When medication and aspiration abortion are available on all the days a health center is
open it can significantly reduce the impact of delay, even when patients need to reschedule
for their own reasons.
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52. Delays in accessing abortion care can result in patients exceeding the gestational age limit
for medication abortion, for aspiration abortion in Fairbanks or Juneau, and ultimately for
procedural abortion in Anchorage. This can result in the patient receiving a different form
of abortion than they preferred (aspiration v. medication, D&E v. aspiration), it can result
in the need for increased travel, including out of state, to access care, or even in the patient
not receiving the abortion.
53. Delay in accessing abortion means that the patient must remain pregnant for longer than
they would otherwise. This can expose the patient to the increased risks of pregnancy,
which can range from nausea and vomiting, delay in receiving treatment for disease such
as cancer, or increased medical risk due to other conditions, such as severe heart disease.
54. Patients who want to terminate a pregnancy are less likely to obtain prenatal care. If the
patient is unable to terminate the pregnancy, they face increased medical risks due to lack
of prenatal care. They may also experience adverse socioeconomic consequences.
55. Patients who unable to access timely abortion care may experience psychological harm.
This is particularly true of patients who are pregnant as a result of sexual assault. Pregnant
people experiencing intimate partner violence are at risk for increased violence during
pregnancy, and delays in accessing abortion care, particularly if the patient must return for
additional appointments, may make it more difficult to keep the pregnancy confidential.
Limiting the number of days a patient can obtain an appointment can make it more
difficult for the patient to maintain the confidentiality of their care.
56. Wait time data reflecting the amount of time, pre-and post-injunction, that elapsed
between when a patient made an abortion appointment and when the abortion was
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performed, was admitted at trial.33 The data showed that patients waited a longer time to
receive abortion care after the injunction was entered, which does not support Planned
Parenthood's assertion that AS 18.16. 010(a)(1) acts as a barrier to patients seeking
abortion. But there were other factors, in particular staffing challenges Planned
34
Parenthood faced during and after the Covid-19 Pandemic, that likely contributed to
increased wait times. In addition, the wait time data measured the time between when the
patient made the appointment and when the patient attended the appointment. But a more
accurate way to measure appointment availability is to track the period of time between
the date the patient schedules to the next available appointment. In general, there was no
reliable statistical evidence presented at trial that would permit the court to draw a
conclusion regarding the impact of AS 18.16.010(a)(1) on a patient's ability to timely access
abortion care.
57. Planned Parenthood does not have to exclude the possibility that delays in obtaining
abortion care result from patient's personal circumstances in order to meet its burden of
demonstrating that AS 18.16.010(a)(1) substantially burdens patients' reproductive rights.
The question is whether, in the context of the various barriers patients face, AS
18.16.010(a)(1) increases patients' barriers to accessing care. It does.
58. When APCs are barred from providing abortion, there are fewer available providers, fewer
appointments, and potential for greater delay. Given the time-sensitivity of accessing
abortion care and the way the service is delivered state-wide through three health centers
many patients must travel significant distances to reach a health center.
33 Ex. M, T, U, V.
34 The data showed that in 2020 the average wait time was just under eight days. Average wait times increased in
2021, 2022, and 2023, with an average of just over eleven days in 2023.
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59. Patients have a liberty and privacy interest in access to abortion care, in determining the
type of abortion they receive, and in obtaining those services from their preferred qualified
clinical provider.35 AS 18.16.010(a)(1) substantially burdens this right. As a result of AS
18.16.010(a)(1), some patients experience delays in obtaining abortions, some delays result
in those patients no longer being eligible to obtain their preferred type of abortion, some
patients are forced to travel greater distances to access abortion care, including out of state,
and some patients do hot receive abortion care even when they desired to terminate their
pregnancy. Even though the number of patients affected in the foregoing ways is relatively
low, those impacts constitute a substantial burden on a fundamental constitutional right
to reproductive choice. 36
60. Because AS 18.16.010(a)(1) burdens reproductive choice, it "must be subjected to strict
scmtiny and can only smvive review if it advances a compelling state interest using the
least restrictive means of achieving that interest."37 The State has not asserted that it has a
compelling medical, safety, or public welfare interest served by prohibiting otherwise
qualified APCs from performing medication or aspiration abortion. 38 Certainly, the State
has a legitimate interest in the health and welfare of its citizens.39 But AS 18.16.010(a)(1)
is not the least restrictive means of protecting the health and safety of patients seeking to
35 Order on Cross Motions for Summary Judgment *12-14 (entered 5/23/2023). See also Ht!lfman v. State, 204 P.3d
339, 347 (.Alaska 2009) (the right to make medical decisions on one's own behalf and on behalf of one's children is
fundamental); (Valley Hospital Ass'n v. Mat-Su Coalition for Choice 948 P.2d 963,969 (Alaska 1997).
36 See Planned Parmthood oft he Great NorthJVest v. State, 375 P.3d 1122, 1133 & n. 48 (.Alaska 2016) ("A law is measured
for constitutional validity 'by its impact on those whose conduct it affects,' and the proper constitutional inquiry focuses
on 'the group for whom the law is a restriction, not the group for whom the law is irrelevant."') (q uoting Planned Parenthood
qy
ofS e. Pa. v. Casey, 505 U.S. 833, 894 (1992) overruled Dobbs v. Jackson Women's Health O,;g., 597 U.S. 215, 231 (2022)).
31 State v. Planned Parenthood ofA laska, 171 P.3d 577, 582 (.Alaska 2007).
38 CJ Valley Hosp. Ass'n, Inc., 948 P.2d at 969.
39 Gibson v. State, 930 P.2d 1300, 1302 (.Alaska 1997) (rights to privacy and to bear arms not unconstitutionally
infringed by law criminalizing possession of a firearm while impaired by intoxicating substance).
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terminate their pregnancies. First, AS 18.16.010(a)(1) does not advance the health or safety
of patients seeking to terminate their pregnancies. Second, the law already provides for a
comprehensive framework regulating the practice of medicine through the Alaska Medical
Board40 and the Alaska Board of Nursing.41 AS 18.16.010(a)(1) is not a regulation of
medical care, it is a revision of a criminal law prohibiting abortion. 42 The law carries
penalties of up to five years in prison.43
61. Because AS 18.16.010(a)(1) burdens reproductive choice and does not serve a compelling
state interest using the least restrictive means, AS 18.16.010(a)(1) violates patients' state
constitutional right to privacy and may not be enforced against APCs whose scope of
practice includes medication or aspiration abortion.
62. The Alaska Constitution '"mandates equal treatment of those similarly situated"' and
protects Alaskans' "right to non-discriminatory treatment more robustly than does the
federal equal protection clause."44 To analyze a claim under Alaska's equal protection
clause, the court "must identify and assess the nature and importance of the competing
personal and governmental interests at stake, identify the relevant level of scrutiny for
governmental action, and assess the means chosen to advance governmental interests."45
'
63. AS 18.16.010(a)(1) treats similarly situated patients unequally. It treats pregnant patients
seeking the same medical care differently based on the patient's exercise of their
fundamental privacy right to reproductive choice. First, the law treats pregnant patients
40 AS 08.64.010-380; 12 AAC 40.
41 AS 08.68.010-850; 12 AAC 44.
42 § 65-4-6 ACLA 1949; am Ch. 103 § 1 SLA 1970. See former AS 11.15.060.
43 AS 18.16.010(c).
44 State, Dep't of Health & Soc. Serus. v. Planned Parenthood ofA laska, Inc., 28 P.3d 904, 909 (Alaska 2001) (quoting
Alaska Pacific Assurance Co. v. Brown, 687. P.2d 264,271 (Alaska 1984)); see also State v. Anthony, 810 P.2d 155, 157 (Alaska
1991).
45 See Planned Parenthood of the Great Northwest v. State, 375 P.3d 1122, 1132 (Alaska 2016).
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seeking medication or aspiration abortion differently from pregnant patients seeking
medication or aspiration management of miscarriage. Second, the law treats pregnant
patients seeking medical care to terminate their pregnancies differently from pregnant
patients seeking all other types of medical care. The law burdens the fundamental privacy
rights of pregnant patients seeking to terminate their pregnancies and must therefore be
subjected to strict scrutiny. It may only be sustained if it is the least restrictive means of
serving a compelling governmental interest. 46
64. To be a compelling interest, the interest must be more than legitimate; the State must show
that the interest needs to be vindicated because it is actually impaired.47 The State does not
argue that it could meet this high burden. As previously mentioned, there exists a
comprehensive statutory and regulatory framework to protect health and safety in the
practice of medicine. Absent AS 18.16.010(a)(1) it remains unlawful for a person not
properly licensed or qualified through education, skill and training to perform medication
or aspiration abortion. Practicing medicine without a license is a class A misdemeanor.48
Practicing nursing without a license is a class B misdemeanor.49 The State Medical Board and
Board of Nursing have procedures for ensuring that licensees are qualified and to sanction
licensees who do not conform to professional standards.50 Because AS 18.16.010(a)(1) does
not serve a compelling governmental interest through the least restrictive means, it may not
be enforced against APCs whose scope of practice includes medication or aspiration
abortion.
46 Id.
47 Id. &n. 88.
48 AS 08.64.360.
49 AS 08.68.340(a)(2).
50 AS 08.64.326-331; AS 08.68.270-275; AS 08.68.360-390.
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- - ~ - - - - - - - - - - - - - - - - - - - - - - -

65. Planned Parenthood also argues that AS 18.16.010(a)(1) violates the equal protection rights
of APCs by prohibiting them from providing care within their scope of practice. This claim
concerns APCs' right to engage in an economic endeavor within a particular industry,
which the Alaska Supreme Court has held "is an important right that the government may
impair only if its interest in taking the challenged action is important and the nexus between
the action and the interest it services is close."51 The State has not articulated what its
interest in AS 18.16.010(a)(1) is, beyond asserting that the enactment was constitutional in
1970. Even if the State's interest was important, the nexus between the action and the
served interest is not close, for the same reasons as previously addressed. Accordingly, AS
18.16.010(a)(1) violates the equal protection rights of APCs and may not be enforced
against APCs whose scope of practice includes medication or aspiration abortion.
66. Because AS 18.16.010(a)(1) violates the constitutional right to privacy and to equal
protection of patients seeking medication or aspiration abortion, and because the law
violates the equal protection rights of APCs whose scope of practice includes medication
or aspiration abortion, Planned Parenthood is entitled to a permanent injunction enjoining
the State from enforcing AS 18.16.010(a)(1) against otherwise qualified APCs.
Conclusions of Law
67. AS 18.16.010(a)(1) violates Article I, section I of the Alaska Constitution, as applied to
APCs whose scope of practice includes medication or aspiration abortion.
68. AS 18.16.010(a)(1) violates Article I, section XXII of the Alaska Constitution, as applied
to APCs whose scope of practice includes medication or aspiration abortion.
51 Laborers Local No. 942 v. Lampkin, 956 P.2d 422, 430 (Alaska 1998) (quoting State, Dep't of Transp.. & Labor v.
Enserch Alaska Constr.., Inc., 787 P.2d 624,631 (Alaska 1989)).
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69. Plaintiffs are entitled to a declaratory judgment and permanent injunction enjoining the
State from enforcing AS 18.16.010(a)(1) against otherwise qualified APCs whose scope of
practice includes medication or aspiration abortion.
70. Plaintiff must file a proposed judgment within ten (10) days of distribution of these
findings of fact and conclusions of law.
DONE this 4th day of September 2024, at Anchorage, Alaska.
Josie Garton
Superior Court Judge
I certify that on 9 /04/20?4
a copy of the above was mailed to
each of the following at their
addresses of record:
Susan Orlansky
Jennifer Sandman
WendyHeipt
Catherine Humpreville
Camila Vega
Vanessa Power
Veronica Keithley
Shannon Bleicher
Margret Paton-Walsh
Megyn Weigand
Jeffrey Pickett
Christopher Robison
Harriet Milks
Elsie Roehl
Judicial Assistant
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