IN THE SUPREME COURT FOR THE STATE OF ALASKA

Supreme Court No.
S-09109
Superior Court No.
3AN-98-07004 CI

_______________________________________

KAREN PERDUE, Commissioner Department of Health and Social Services, and the DEPARTMENT OF HEALTH AND SOCIAL SERVICES, STATE OF ALASKA, 

Appellants, 

v. 

PLANNED PARENTHOOD OF ALASKA, INC., JAN WHITEFIELD, M.D. and AND SUSAN LEMAGIE, M.D., 

Appellees. 

_______________________________________

 

APPEAL FROM THE SUPERIOR COURT THIRD JUDICIAL DISTRICT AT ANCHORAGE 
JUDGE SEN K. TAN, PRESIDING 

 

BRIEF OF APPELLEES

Christine Schleuss
Cooperating Counsel to the
Alaska Civil Liberties Union
Suddock & Schleuss
500 L Street, Suite 300
Anchorage, AK 99501
(907) 258-7807

Louise Melling*
Jody Yetzer
Talcott Camp
Jennifer Dalven*
ACLU Foundation
Reproductive Freedom Project
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2633 

*Admitted Pro Hac Vice

 

COUNTERSTATEMENT OF ISSUES

1. Whether the superior court correctly concluded that by denying Medicaid coverage to women for medically necessary abortions, while providing coverage for medically necessary services for women who carry to term, the State violates the right of privacy guaranteed by the Alaska Constitution. 

2. Whether the judgment below should be affirmed on the ground that, by denying Medicaid coverage to women for medically necessary abortions, while providing coverage for medically necessary services for women who carry to term, the State violates the Inherent Rights provision of the Alaska Constitution.

3. Whether the judgment below should be affirmed on the ground that, by denying Medicaid coverage to women for medically necessary abortions, while providing all covered services to men whenever medically necessary, the State violates the Civil Rights provision of the Alaska Constitution and the Alaska Human Rights Law.

4. Whether the superior court correctly concluded that it had the inherent power to order relief to remedy the constitutional violation.

COUNTERSTATEMENT OF THE CASE 

Effective July 1, 1998, the State of Alaska turned its back on a more than twenty-five-year history of providing nondiscriminatory medical care for poor women deciding whether or not to continue a pregnancy. Pursuant to 7 AAC 43.140, the regulation at issue in this case [hereinafter the Regulation], state assistance ceased to be available for women seeking to terminate their pregnancies for health reasons. As of that date, state assistance was no longer available for Medicaid-eligible women whose abortions were medically necessary because they suffer from epilepsy, heart disease, renal disease, cancer, and other illnesses. It was no longer available for women whose abortions were medically necessary because of complications resulting from mental illness such as schizophrenia and manic depression. It was no longer available for women whose fetuses were severely, if not fatally, impaired. Indeed, as of July 1, 1998, state assistance for abortions was denied unless the woman would otherwise die or the pregnancy resulted from rape or incest. For Medicaid-eligible women continuing their pregnancies, in contrast, state assistance remained available for all medically necessary care. State assistance also remained available for men for all services covered by Medicaid when medically necessary. In other words, as of July 1, 1998, the State singled out for discriminatory treatment one service -- abortion -- which is constitutionally protected and needed only by women. 

It is this discrimination -- not the morality of abortion and not a claim that the state subsidize the exercise of a fundamental right -- that gave rise to this lawsuit. As the California Supreme Court stated when addressing the very issue presented here: 

[T]he constitutional question before us does not involve a weighing of the value of abortion as against childbirth, but instead concerns the protection of either procreative choice from discriminatory governmental treatment. . . . 

. . . [T]he question presented is not whether the state is generally obligated to subsidize the exercise of constitutional rights for those who cannot otherwise afford to do so. . . . Rather, we face the much narrower question of whether the state, having enacted a general program to provide medical services to the poor, may selectively withhold such benefits from otherwise qualified persons solely because such persons seek to exercise their constitutional right of procreative choice in a manner which the state does not favor and does not wish to support.

Committee to Defend Reprod. Rights v. Myers, 625 P.2d 779, 780-81 (Cal. 1981). 

Looking to the state constitution's express protection for privacy and to this Court's decision in Valley Hospital Association v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997), the superior court held the Regulation restricting medical assistance for abortions unconstitutional insofar as it discriminates. As the court recognized, the State may not use its resources -- be they access to a quasi-public hospital or access to Medicaid coverage -- to favor the decision of a woman to have a child over the decision to end a pregnancy. In so concluding, the court fell in line with this Court's precedent; with every Attorney General Opinion to have considered this question; and with the overwhelming authority from other states that, looking to their constitutions, have held unconstitutional state Medicaid schemes that similarly subject abortion to unique and discriminatory treatment. As the superior court held, the Alaska Constitution requires no less. Appellees now ask this Court to affirm.

Appellants offer essentially two arguments for reversal, both unavailing. First, Appellants argue that the reasoning of the Federal Constitution should govern here. They look to Harris v. McRae, 448 U.S. 297 (1980), where the United States Supreme Court upheld the denial of Federal Medicaid coverage for medically necessary abortions. But the reasoning of Harris -- that under the Federal Constitution the government may use its money to make a "value judgment favoring childbirth over abortion," id. at 314 -- is precisely the reasoning rejected by the courts of California, Montana, Idaho, West Virginia, New Mexico, Minnesota, New Jersey, Massachusetts, Oregon, Illinois, Vermont, and Connecticut when considering their selective Medicaid schemes, and -- most important -- by this Court in Valley Hospital.

Valley Hospital clearly establishes that under the Alaska Constitution, the State may not deny public benefits -- in that case, access to a public facility -- because a woman exercises her right of reproductive choice in a manner the State disfavors and does not wish to subsidize. Thus, having chosen to subsidize reproductive choice by providing medical assistance to women who carry to term, the State cannot constitutionally deny assistance to eligible women who choose not to continue a pregnancy any more than it could subsidize the right to vote by providing busses to the polls, but then offer service only to Democrats. 

Second, Appellants make the extraordinary argument that separation of powers principles preclude judicial relief because "[i]t is the province of [the] legislature to decide policy issues and encourage certain behaviors by funding decisions." Appellants Br. at 41-42. Appellants thus ask this Court to hold that, so long as a constitutional violation is intentional and involves money, the judiciary is powerless to act. This is not the law, as common sense and precedent running from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to Valley Hospital establish. The Court "cannot defer to the legislature [or an agency] when infringement of a constitutional right results from legislative [or agency] action." 948 P.2d at 972. In the case at hand, as the superior court held, the Regulation infringes a fundamental right, necessitating relief. This Court should affirm.

A. Counterstatement of Facts

1. Statutory and Regulatory Framework

Through its Medicaid program, Alaska provides coverage for a broad range of health care for its poor residents, including pre- and post-natal care; inpatient and outpatient hospital services, childbirth services; prescription services; family planning services; nurse midwife services; and nutrition services for pregnant women. 7 AAC 43.005. These services are provided to Medicaid-eligible persons whenever medically necessary. 42 U.S.C. ßß 1396a(a)(10)(A), 1396d(a); Deposition Transcript of Nancy Weller, Medical Assistance Administrator for the Division of Medical Assistance, Department of Health and Social Services [hereinafter Weller Dep.] at 54 [Exc. 264]. Alaska Medicaid pays for all services required under federal law and provides optional coverage and services. See AS 47.07.030(a), (b). Funding for Medicaid comes from federal and state sources. See 42 U.S.C. ßß 1396 to 1396p; AS 47.07.010-020.

Although pregnancy-related services are mandated under Medicaid, federal law prohibits the use of federal funds for abortions other than those necessary because the pregnancy is life-threatening or results from rape or incest. Consolidated Appropriations Act of 2000, Pub. L. No. 106-113, ß 509, 113 Stat. 1501, 1537 (1999). States are free, however, to use their own funds to provide any services ineligible for federal reimbursement, including other abortion services. Id.; see also Harris v. McRae, 448 U.S. 297, 311 n.16 (1980); Weller Dep. at 37-38 [Exc. 69-70].

Alaska has, in fact, for nearly three decades provided coverage for medically necessary abortions and related services, 7 AAC 47.200(a)(4)(F),(5),(6); 7 AAC 43.140, most often with funds from the General Relief Program (GRM),⁽¹⁾ Weller Dep. at 14-15 [Exc. 59-60].⁽²⁾ During the 1998 legislative session, however, the legislature defunded GRM expressly for the purpose of eliminating abortion coverage. It simultaneously established a new program, Chronic and Acute Medical Assistance program (CAMA), identical to GRM in all but one respect: CAMA makes no provision for abortion coverage. See SCS CSHB 459 (RLS) ß 7 [Exc. 9-16]; CCS HB 325 (brf sup maj fld H/S) [Exc. 36-39]; Weller Dep. at 32-33 [Exc. 256-57].

Thus, as of July 1, 1998, state coverage of abortions for Medicaid-eligible women was limited by regulation to those necessary because the pregnancy was life-threatening or resulted from rape or incest. 7 AAC 43.140. State coverage of prenatal, delivery, or postpartum care, in contrast, is not similarly restricted. Weller Dep. at 56 [Exc. 266]. Indeed, with the sole exception of abortions, Alaska Medicaid regulations do not limit reimbursement for any covered service on a showing that the care is lifesaving (or sought as a result of rape or incest), and deny coverage when it is otherwise medically necessary. Id. at 55-57 [Exc. 265-67]. 

2. The Effects of the State's Discriminatory Funding Scheme

Under the terms of 7 AAC 43.140, a Medicaid-eligible woman whose pregnancy threatens her health, but does not rise to the level of endangering her life, is denied coverage if the medical care she seeks is an abortion. The record is replete with evidence of physicians attesting to the compelling circumstances they treated when coverage for medically necessary abortions was available.

One young woman had severe, uncontrolled juvenile diabetes. She already had hemorrhages in the retina affecting her vision and her kidneys were not functioning well. She had been hospitalized twice in the prior three months. The pregnancy made her diabetes more difficult to control. Had she continued the pregnancy, she would have faced multiple hospitalizations. Dukeminier ? 13 [Exc. 218-19]; see also Rollins ? 2 [Exc. 227-28].⁽³⁾

A woman with sickle cell anemia who sought an abortion had suffered three severe sickle cell crises during a previous pregnancy. Each time she had to be hospitalized and on two occasions she received blood transfusions. The pain had been unbearable. When she became pregnant again, she sought an abortion to avoid the significant health risks she faced if she continued the pregnancy. Whitefield ?? 19-20 [Exc. 240].

One woman suffered from AIDS. In addition to physical health problems, she had AIDS encephalitis, an infection in the brain that caused her to suffer from acute psychosis. She had been institutionalized on a number of occasions; at times she lived on the streets; and she had been physically abused. In addition to the health risks to the fetus, it would have been impossible for her to care for a child. For all these reasons, she determined that she could not continue the pregnancy. Whitefield ? 27 [Exc. 243]. 

One patient sought an abortion because her fetus had severe anomalies. It had no stomache bubble, no arms, and severely shortened femurs; and it was also experiencing intrauterine seizures. It was not clear that the fetus could survive. The woman could not bear the idea of continuing the pregnancy, only to have the baby die or suffer incredibly. Nor was she prepared, given her life circumstances, to care for a child with the severe complications that could already be diagnosed. Whitefield ? 23 [Exc. 241-42]. 

These women are not unique. Providers regularly see women suffering from diabetes, hypertension, severe asthma, drug addiction, cancer, heart disease, epilepsy, AIDS, and lupus, among myriad other conditions, who seek medically necessary abortions. E.g., Dukeminier ?? 8-9 [Exc. 217]; Rollins ? 8 [Exc. 229-30]; Lemagie ?? 10-14 [Exc. 248-50]; Montana ? 5 [Exc. 223-24]; Rollins ? 2 [Exc. 285-86]; Whitefield ?? 14-27 [Exc. 239-43]. They see women physically abused by their partners; women suffering from schizophrenia and depression; and women carrying impaired fetuses, even those with no prospect of survival, needing abortions and dependent on Medicaid for their health care. E.g., Whitefield ?? 22-24 [Exc. 241-42]; Lemagie ?? 13-15, 17 [Exc. 249-51]; Montana ? 5 [Exc. 223-24]. As Appellants' representative testified, under the Regulation, women suffering from these conditions would be denied assistance for abortion, despite the harm to their health of continued pregnancy. Weller Dep. at 47-50 [Exc. 260-63]. They would, however, be afforded coverage for a broad range of prenatal, child birth, and postnatal services. 

As the superior court found, the denial of assistance for medically necessary abortions harms Medicaid-eligible women. In the absence of state assistance, many "who seek abortions for medical reasons will not be able to gather the funds necessary to have the procedure performed." Mem. & Dec. at 5 [Exc. 109]; see also id. at 6 [Exc. 110].⁽⁴⁾ Appellants admit as much. The fiscal note submitted by the Department of Health and Social Services [hereinafter the Department or DHSS] to the legislature estimated that, if denied coverage for medically necessary abortions, 35% of pregnant, Medicaid-eligible women in this state who would otherwise have terminated their pregnancies would be forced to carry to term, with the result that 295 additional women per year would need assistance for childbirth and infant care. Fiscal Note to Bill No. CSHB 234 (Jan. 27, 1998) [hereinafter DHSS Fiscal Note] [Exc. 176]; see also Weller Dep. at 68-70 [Exc. 272-74]; Henshaw ?? 19-20 [Exc. 208-09]. 

The obstacles Medicaid-eligible women face obtaining abortions, absent state assistance, are inevitable, and often insurmountable. As the superior court found:

The cost of abortion services for Alaskan women can run from $450 to $4,000. In addition to medical costs, there are often travel and lodging costs. Many women have to travel from remote areas where abortion services are not available, to places such as Fairbanks, Anchorage, Soldotna or Washington state. The cost of travel and lodging for these women can run as high as $1,400. As a result, the total cost of an abortion for Alaskan women can range from $450 to $5,400.

Mem. & Dec. at 5 [Exc. 109]. The finding was amply supported. See Henshaw ?? 7, 9-10 [Exc. 203-04]; Dukeminier ? 6 [Exc. 216]; Huntley ?? 3-7 [Exc. 233-34]; Rollins ? 6 [Exc. 229]; Whitefield ? 9 [Exc. 237].

These sums are well beyond the means of Medicaid-eligible women, many of whom, the superior court found, have no income but public assistance. Mem. & Dec. at 5 [Exc. 109]; see also Henshaw ? 12 [Exc. 205]. In 1998, a family of three subsisting on Alaska Temporary Assistance Program (ATAP) benefits received a maximum cash grant of $923 per month. Mem. & Dec. at 5 [Exc. 109]; see also Henshaw ? 12 [Exc. 205]. The cost of a first-trimester abortion alone then could consume 75% of the family's monthly income. Henshaw ? 9 [Exc. 204]. With travel and lodging added, the total cost for some women exceeds the monthly maximum ATAP grant for a three-person family. See Huntley ?? 3-6 [Exc. 233-34].⁽⁵⁾

Medicaid-eligible women who are unable to gather funds for medically necessary abortions suffer. Their health is at risk if abortion is denied or delayed. Pregnant women who have diabetes, either preexisting or pregnancy-induced, for example, risk hypertension, serious infection, and preeclampsia, Whitefield ? 17 [Exc. 239]; pregnant women with hypertension face an increased risk of severe hemorrhage and heart failure, id. ? 18 [Exc. 239-40]; and pregnant women with schizophrenia and other psychopathologies face an increased risk of breakdowns, Lemagie ?13 [Exc. 249]. In addition, women who are compelled to continue an unwanted pregnancy experience distress and psychological trauma, in varying degrees, as well as greater educational, economic, and employment difficulties. Henshaw ?? 22-23 [Exc. 210-11]; Rollins ?? 7-8 [Exc. 287-88]; Lemagie ? 19 [Exc. 251]. Even those women who manage to secure the funds and thus to obtain an abortion are harmed. To gather the necessary funds, some scrimp on food and clothing and other necessities, to the detriment of themselves and their families. Dukeminier ? 10 [Exc. 217-18]; Whitefield ? 11 [Exc. 238]; see also Henshaw ? 15 [Exc. 206]. Others must compromise their privacy, there being no option but to divulge their plans for an abortion to explain their need for money. Dukeminier ? 10 [Exc. 217-18]; Lemagie ?? 18-19 [Exc. 251]. Because the effort to gather funds takes time, any abortion is delayed, with the result that the cost of the procedure increases, its availability decreases, and the risks increase. Henshaw ?? 7-10, 15-19 [Exc. 203-04, 206-08]. Although abortion remains safer than childbirth, with each week of delay from eight to twenty weeks measured from a woman's last menstrual period, the risk of major medical complications increases by twenty percent, and the risk of death, by thirty percent. Henshaw ?? 17-18 [Exc. 207-08]. Preexisting and pregnancy-induced conditions can also worsen. E.g., Lemagie ? 10 [Exc. 248]. In some cases, medical conditions are relieved with the end of the pregnancy; in others, the woman's health is permanently impaired. Dukeminier ? 12 [Exc. 218]; Lemagie ?? 17-20 [Exc. 250-52]; Whitefield ?? 12-13 [Exc. 238].

Finally, as Appellants admitted and the superior court found, denial of coverage for medically necessary abortions costs the State more than if it were to continue to fund the procedures. Mem. & Dec. at 13-14 [Exc. 117-18]. For fiscal year 1998, the cost on average each time a Medicaid-eligible woman carried to term exceeded $10,500: $8,600 for the birth and postpartum care, plus "considerably" more than $1,900 for infant care for the first year. Weller Dep. at 43, 45, 64 [Exc. 258-59, 270]. In contrast, the State paid on average $1,058 for each medically necessary abortion, including transportation costs. Id. at 58-59 [Exc. 268-69]. Even accounting for 59.8% reimbursement by the federal government for maternal and infant care, id. at 66 [Exc. 271], the denial of coverage for medically necessary abortions results in increased costs to the State. Indeed, the Department projected increased costs to the State in excess of $200,000 in the first year in which coverage for medically necessary abortions was denied.⁽⁶⁾

Appellants submitted no evidence to dispute any of the foregoing, material facts. [R. 990-993, 1036-80].

B. Summary of Proceedings and Opinion of the Superior Court

Appellees Planned Parenthood, Inc., Jan Whitefield, M.D., and Susan Lemagie, M.D., on behalf of themselves and their Medicaid-eligible patients, filed this action in June 1998, to prevent enforcement of Regulation 7 AAC 43.140 insofar as it denies coverage for medically necessary abortions for Medicaid-eligible women. Compl. [Exc. 17-35]. On July 1, 1998, the superior court denied Appellees' motion for a temporary restraining order. Order at 6. [R. 13]. Thereafter, the parties filed cross-motions for summary judgment. 

On March 16, 1999, the superior court issued its Memorandum and Decision, granting Appellees' motion for summary judgment and denying Appellants.' Mem. & Dec. at 19 [Exc. 123]. The superior court concluded, first, that the Alaska Constitution provides independent and broader protection for the right of privacy than the Federal Constitution, and protects reproductive choice as a fundamental right. Id. at 8-9 [Exc. 112-13]. Turning to the Regulation, the superior court emphasized,

If an indigent woman faces a pregnancy with health risks but not sufficient risks to endanger her life, 7 AAC 43.140 provides her with two options. She can carry the pregnancy to term, and have all of her health care costs covered. Or, she can choose to abort, in which case she will receive no coverage.

Id. at 9-10 [Exc. 113-14]. As a result, the court found, some women "will have no choice but to go forward with the pregnancy." Id. at 10 [Exc. 114]. The discriminatory treatment, the court held, "impermissibly interferes with a Medicaid-eligible woman's fundamental right to privacy to decide whether or not to carry a child to term." Id. at 11 [Exc. 115]. 

The court also held that Appellants had proven no compelling interest to justify the discrimination. As the court emphasized, the regulatory scheme will "thwart[]," not serve, the asserted interest -- to ensure the best possible outcome of pregnancies in Alaska -- "leaving as it does fewer health care dollars . . . available for distribution among a greater number of children." Id. at 14 [Exc. 118]. Looking to Valley Hospital, the court further held that the state's interest in "discouragement of abortion" could not justify interference with the fundamental right. Id. at 15 [Exc. 119]. The court did not reach the two alternative grounds advanced by Appellees, namely that the Regulation violates the state constitutional guarantees of equal protection and sex equality. Id. at 16 [Exc. 120]. Finally, the superior court held that it had the inherent authority to order relief to remedy the constitutional violation, rejecting Appellants' argument that any relief would violate the separation of powers doctrine.