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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State Dept of Health & Social Svs v Planned Parenthood of Alaska, et al. (07/27/2001) sp-5443

State Dept of Health & Social Svs v Planned Parenthood of Alaska, et al. (07/27/2001) sp-5443

Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention 
of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, 
phone (907) 264-0608, fax (907) 264-0878.


OF HEALTH & SOCIAL SERVICES,     )     Supreme Court No. S-9109
KAREN PERDUE, Commissioner,     )
                              )     Superior Court No.
             Appellant,          )     3AN-98-7004 CI
     v.                         )     O P I N I O N
PLANNED PARENTHOOD OF ALASKA,     )     [No. 5443 - July 27, 2001]
and SUSAN LEMAGIE, M.D.,          )
             Appellees.          )

Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sen K. Tan, Judge.

Appearances:  Lisa M. Kirsch, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for 
Appellant.  Christine Schleuss, Suddock & Schleuss, Cooperating Counsel to the 
Alaska Civil Liberties Union, Anchorage, and Louise Melling, Jody Yetzer, 
Talcott Camp, and Jennifer Dalven, ACLU Foundation, Reproductive Freedom 
Project, New York, New York, for
Appellees.  Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, for 
Amicus Curiae The Alaska State Legislature.  Jeffrey D. Troutt, Juneau, and 
Paul Benjamin Linton, Northbrook, Illinois, for Amicus Curiae United Families 
International.  Susan Orlansky,
Feldman & Orlansky, Anchorage, Karen E. Katzman, Sheila S. Boston, and Dina L. 
Bakst, Kaye Scholer Fierman Hays & Handler, LLP, New
York, New York, and Martha F. Davis and Yolanda S. Wu, NOW Legal Defense and 
Education Fund, New York, New York, for Amicus Curiae
NOW Legal Defense and Education Fund.  

Before:  Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.  

FABE, Chief Justice.

          Alaska's Medicaid program funds virtually all necessary
medical services for poor Alaskans -- "regardless of race, age,
national origin, or economic standing" [Fn. 1] -- but it denies
funding for medically necessary abortions.  Alone among Medicaid-eligible 
Alaskans, women whose health is endangered by pregnancy
are denied health care based solely on political disapproval of the
medically necessary procedure.  This selective denial of medical
benefits violates Alaska's constitutional guarantee of equal
protection.  Our conclusion is supported by the majority of
jurisdictions that have considered comparable restrictions on state
funding of medically necessary abortions: these state courts have
concluded that, under their state constitutions, government health
care programs that fund other medically necessary procedures may
not deny assistance to eligible women whose health depends on
obtaining abortions. [Fn. 2]
          This case concerns the State's denial of public
assistance to eligible women whose health is in danger.  It does
not concern State payment for elective abortions; nor does it
concern philosophical questions about abortion which we, as a court of law, 
cannot aspire to answer.  We join the California Supreme
Court in clarifying that "this case does not turn on the morality
or immorality of abortion, and most decidedly does not concern the
personal views of the individual justices as to the wisdom of the
legislation itself or the ethical considerations involved in a
woman's individual decision whether or not to bear a child." [Fn. 3] Indeed, 
as the California Supreme Court emphasized, "similar
constitutional issues would arise if the Legislature . . . funded
[Medicaid] abortions but refused to provide comparable medical care
for poor women who choose childbirth." [Fn. 4]  The constitutional
issue in this case therefore "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." [Fn. 5]  As the California court
recognized, the issue 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." [Fn. 6] 
Rather, the issue is whether the State, having enacted a benefits
program, may discriminate between recipients in the manner
attempted by the Department of Health and Social Services (DHSS)
today.  We hold that it may not.  Once the State undertakes to fund
medically necessary services for poor Alaskans, it may not
selectively exclude from that program women who medically require
          Although the State argues that courts may not enjoin
unconstitutional use of the legislative appropriations power, this proposition 
is unsupported by case law from any jurisdiction.  The
legislature's spending power does not create license to disregard
citizens' constitutional rights.  In rejecting this part of the
State's argument, we concur with every state and federal court that
has considered this issue.
          Alaska provides medical services for poor Alaskans
primarily through the Medicaid program. [Fn. 7]  Medicaid is a
comprehensive health care program designed to provide medical
assistance for all eligible poor persons in the state. [Fn. 8]  But
a DHSS regulation, 7 Alaska Administrative Code (AAC) 43.140,
imposes a limit on the state's health care funding:  It denies
Medicaid assistance for medically necessary abortions unless a
pregnant woman is at risk of dying or her pregnancy resulted from
rape or incest. [Fn. 9]  Because DHSS offers no other funding
source for abortions, 7 AAC 43.140 ensures that a woman who
medically requires an abortion will receive no assistance from the
          The range of women whose access to medical care is
restricted by the regulation is broad.  According to medical
evidence provided to the superior court, some women -- particularly
those who suffer from pre-existing health problems -- face
significant risks if they cannot obtain abortions.  Women with
diabetes risk kidney failure, blindness, and preeclampsia or
eclampsia -- conditions characterized by simultaneous convulsions
and comas -- when their disease is complicated by pregnancy.  Women with renal 
disease may lose a kidney and face a lifetime of
dialysis if they cannot obtain an abortion.  And pregnancy in women
with sickle cell anemia can accelerate the disease, leading to
pneumonia, kidney infections, congestive heart failure, and
pulmonary conditions such as embolus.  Poor women who suffer from
conditions such as epilepsy or bipolar disorder face a particularly
brutal dilemma as a result of DHSS's regulation -- medication
needed by the women to control their own seizures or other symptoms
can be highly dangerous to a developing fetus.  Without funding for
medically necessary abortions, pregnant women with these conditions
must choose either to seriously endanger their own health by
forgoing medication, or to ensure their own safety but endanger the
developing fetus by continuing medication.  Finally, without state
funding, Medicaid-eligible women may reach an advanced stage of
pregnancy before they can gather enough money for an abortion;
resulting late-term abortions pose far greater health risks than
earlier procedures.
          In June 1998 the plaintiffs -- two medical doctors and
Planned Parenthood of Alaska -- filed a complaint against DHSS. 
They sought to enjoin enforcement of 7 AAC 43.140 and also sought a judgment 
declaring that the State's denial of funding for
medically necessary abortions violates Alaska's Constitution. 
Superior Court Judge Sen K. Tan granted summary judgment in favor
of Planned Parenthood.  Based on this court's holding that
"reproductive rights are fundamental . . . [and] include the right
to an abortion," [Fn. 10] the superior court concluded that 7 AAC 43.140 
impermissibly interferes with Medicaid-eligible women's
constitutional rights to privacy.  Because the State failed to
articulate a compelling state interest for this interference, the
superior court permanently enjoined DHSS from enforcing the
regulation "so as to deny coverage for medically necessary
abortions."  The State now appeals. [Fn. 11]
          We review a grant of summary judgment de novo, exercising
our independent judgment to "determine whether the parties
genuinely dispute any material facts and, if not, whether the
undisputed facts entitle the moving party to judgment as a matter
of law." [Fn. 12]  On questions of constitutional law, we also
apply our independent judgment. [Fn. 13]  We may affirm the
superior court on any ground supported by the record. [Fn. 14]
     A.The Challenged Regulation Violates Equal Protection.
          By providing health care to all poor Alaskans except
women who need abortions, the challenged regulation violates the
state constitutional guarantee of "equal rights, opportunities, and
protection under the law." [Fn. 15]  The State, having established
a health care program for the poor, may not selectively deny
necessary care to eligible women merely because the threat to their
health arises from pregnancy.  Because we decide this case on state
constitutional equal protection grounds, we do not review the
superior court's privacy-based ruling.  We do note, however, that
our analysis today closely parallels that applied by many of the fifteen 
courts that have rejected similar restrictions. [Fn. 16] 
Although other courts' decisions have rested on a variety of state
constitutional provisions, including equal protection, [Fn. 17]
constitutional equal-rights-for-women clauses, [Fn. 18] due process, [Fn. 19] 
and privacy, [Fn. 20] the underlying logic has
been the same in decision after decision: "[W]hen state government
seeks to act for the common benefit, protection, and security of
the people in providing medical care for the poor, it has an
obligation to do so in a neutral manner so as not to infringe upon
the constitutional rights of our citizens." [Fn. 21]  As the
Massachusetts Supreme Judicial Court observed, the constitutional
principle at issue is straighforward: "It is elementary that 'when
a State decides to alleviate some of the hardships of poverty by
providing medical care, the manner in which it dispenses benefits
is subject to constitutional limitations.'" [Fn. 22]  The State's
spending discretion is limited by the constitution -- "[w]hile the
State retains wide latitude to decide the manner in which it will
allocate benefits, it may not use criteria which discriminatorily
burden the exercise of a fundamental right." [Fn. 23]
          Alaska's constitutional equal protection clause mandates
"equal treatment of those similarly situated;" [Fn. 24] it protects
Alaskans' right to non-discriminatory treatment more robustly than
does the federal equal protection clause. [Fn. 25]  In analyzing a
challenged law under Alaska's equal protection provision, we first
determine what level of scrutiny to apply, using Alaska's "sliding
scale" standard. [Fn. 26]  The "weight [that] should be afforded the 
constitutional interest impaired by the challenged enactment"
is "the most important variable in fixing the appropriate level of review." 
[Fn. 27]  Second, we examine the State's interests served by the challenged 
regulation. [Fn. 28]  If the burden placed on
constitutional rights by the regulation is minimal, then the State
need only show that its objectives were legitimate for the
regulation to survive an equal protection challenge. [Fn. 29]  But
if "the objective degree to which the challenged legislation tends
to deter [exercise of constitutional rights]" [Fn. 30] is
significant, the regulation cannot survive constitutional challenge
unless it serves a compelling state interest. [Fn. 31]  Finally, if
the State shows that its interests justify burdening the rights of
citizens, for the regulation to survive constitutional challenge
the State must demonstrate that the means it has chosen to advance
those goals are well-fitted to the ends, and that its goals could
not be accomplished by less restrictive means. [Fn. 32]
          The regulation at issue in this case affects the exercise
of a constitutional right, the right to reproductive freedom. [Fn. 33] 
Therefore, the regulation is subject to the most searching
judicial scrutiny, often called "strict scrutiny." [Fn. 34]  We
have explained in the past that such scrutiny is appropriate where
a challenged enactment affects "fundamental rights," including "the
exercise of intimate personal choices." [Fn. 35]  This court has
specified that the right to reproductive freedom "may be legally constrained 
only when the constraints are justified by a compelling state interest, and no 
less restrictive means could advance that interest." [Fn. 36]
          Judicial scrutiny of state action is equally strict where
the government, by selectively denying a benefit to those who
exercise a constitutional right, effectively deters the exercise of
that right.  In Alaska Pacific Assurance Co. v. Brown, we held the
State to a "very high" burden to justify a statute that reduced 
workers' compensation benefits paid to workers who exercised their
constitutional right to leave the state. [Fn. 37]  We concluded
that the challenged regulation did not meet this high standard and
thus violated equal protection. [Fn. 38]  Like the regulation at
issue today, the challenged statute in Alaska Pacific Assurance Co.
did not forbid individual exercise of constitutional rights;
rather, it limited the government benefits distributed to the class
of individuals who exercised that right. [Fn. 39]  As we explained
in that case, we look to the real-world effects of government
action to determine the appropriate level of equal protection
scrutiny:  "The suspicion with which this court will view
infringements upon [constitutional rights] depends upon . . . the
objective degree to which the challenged legislation tends to deter
[the exercise of those rights]." [Fn. 40]
          We reached a similar conclusion in Alaska Gay Coalition
v. Sullivan, holding that the Municipality of Anchorage could not
constitutionally withhold a public benefit based on a potential
recipient's beliefs and public expression. [Fn. 41]  The
municipality had undertaken to publish a guidebook to public and private 
organizations in Anchorage, but excluded the Alaska Gay
Coalition from the book. [Fn. 42]  We held that this exclusion
violated the Coalition's constitutional rights to equal protection
under the law. [Fn. 43]  We explained:
When the Municipality decided to publish a
limited informational guide to public and private local resources, it did not 
thereby assume the obligation of providing space to
every possible group. . . .  Had the Municipality deleted groups at random or 
used criteria not related to the nature of the particular organizations, 
constitutional violations may not have resulted.  In deleting the Alaska Gay 
Coalition . . . however, appellees denied that group access to a public forum 
based solely on the nature of its beliefs.  In so doing, they violated 
appellant's constitutional rights to . . . equal protection under the law.[ 
[Fn. 44]]

Similarly, in the instant case, the State's obligations do not
depend on whether the State has undertaken to provide limitless
health care services to all poor Alaskans.  Rather, DHSS is
constitutionally bound to apply neutral criteria in allocating
health care benefits, even if considerations of expense, medical
feasibility, or the necessity of particular services otherwise
limit the health care it provides to poor Alaskans.
          The State argues in this case that it does not provide
all necessary medical care to indigent Alaskans.  For support, it
cites 7 AAC 43.385, a regulation that excludes from Medicaid
coverage such services as medically unnecessary inpatient treatment, [Fn. 45] 
beautifying cosmetic surgery, [Fn. 46] and
transplants of organs other than kidney, cornea, skin, and bone marrow. [Fn. 
47]  This regulation has not been challenged, and the issue has not been 
thoroughly briefed by the parties, but the
restrictions appear to relate to medical necessity, cost, and
feasibility -- all politically neutral criteria.  Such spending
limits are irrelevant to the constitutional issue raised by the
State's denial of coverage for medically necessary abortions.  As
the United States Supreme Court noted in Shapiro v. Thompson:
We recognize that the State has a valid
interest in preserving the fiscal integrity of its programs.  It may 
legitimately attempt to limit its expenditures, whether for public assistance, 
public education, or any other program.  But a State may not accomplish such a 
purpose by invidious distinctions between classes of its citizens.[ [Fn. 48]]

          Like Alaska Pacific Assurance Co., Alaska Gay Coalition
establishes that under Alaska's equal protection provision the
government may not allocate state benefits so as to deter citizens'
exercise of constitutional rights. 
          In this case, it is undisputed that 7 AAC 43.140 deters
women from obtaining abortions.  The State itself stated that
eliminating public assistance for medically necessary abortions
would cause about thirty-five percent of women who would otherwise
have obtained abortions to instead carry their pregnancies to term,
despite the associated threat to their health.  Under Alaska
Pacific Assurance Co., such a restriction warrants the highest
degree of judicial scrutiny.
          In the seminal Shapiro v. Thompson decision, the United
States Supreme Court also strictly scrutinized -- and ultimately
held unconstitutional -- state programs that denied benefits to
citizens based on their exercise of constitutional rights. [Fn. 49]  Shapiro 
invalidated state laws that denied welfare benefits to
persons who had moved into the jurisdiction within the past year.
[Fn. 50] The Court found that "the prohibition of benefits . . .
creates a classification which constitutes an invidious
discrimination denying [new residents] equal protection of the laws." [Fn. 
51]  The Court held that states could not constitutionally tailor their 
benefits programs to deter
immigration from other states:  "If a law has no other purpose . .
. than to chill the assertion of constitutional rights by
penalizing those who choose to exercise them, then it [is] patently 
unconstitutional." [Fn. 52]
          Although Shapiro and Alaska Pacific Assurance Co. applied
strict scrutiny to reject restrictions like the one at issue in
this case, 7 AAC 43.140 would fail equal protection analysis under
any standard.  Under the regulation, the State grants needed health
care to some Medicaid-eligible Alaskans, but denies it to others,
based on criteria entirely unrelated to the Medicaid program's
purpose of granting uniform and high quality medical care to all
needy persons of this state. [Fn. 53]  Thus, even if 7 AAC 43.140
did not affect constitutional privacy rights and we applied our
most deferential standard of review, the regulation still could not
withstand equal protection challenge.  Under Alaska's rational
basis standard, [Fn. 54] differential treatment of similarly
situated people is permissible only if the distinction between the
persons "rest[s] upon some ground of difference having a fair and
substantial relation to the object of the legislation." [Fn. 55]  DHSS 
provides necessary medical care to all Medicaid-eligible
Alaskans except women who medically require abortions.  This
differential treatment lacks a fair and substantial relation to the
object of the Medicaid program, and therefore violates equal protection. [Fn. 
          The United States Supreme Court reached a similar
conclusion in Shapiro: although the Court invalidated states'
differential treatment of similarly situated welfare recipients
under strict scrutiny, it also noted that the differentiation would
be deemed "irrational and unconstitutional" even under federal
rational basis review. [Fn. 57]  In United States Department of
Agriculture v. Moreno, the United States Supreme Court invalidated
a similar restriction under rational basis scrutiny alone. [Fn. 58] 
The Court found no rational basis for a statute denying food stamps
to unrelated persons who shared a household; it therefore concluded
that the statute violated equal protection. [Fn. 59]
          Lower court decisions have applied this principle to
states' allocation of health care benefits, and concluded that
"classification [among recipients] must be based upon some
difference between the classes which is pertinent to the purpose
for which the legislation is designed." [Fn. 60]  A California
court found that the state violated equal protection by paying for
attendant services by spouses of elderly and blind aid recipients,
but denying payment for the same services by the spouses of
otherwise disabled aid recipients. [Fn. 61]  And New York's highest
court held that equal protection was violated by a statute that "effectively 
provide[d] . . . that the aged, disabled, and blind
are entitled to less public assistance than other needy persons."
[Fn. 62]
          DHSS's differential treatment of Medicaid-eligible
Alaskans violates equal protection under rational basis review as
surely as it does under strict scrutiny.  Under any standard of
review, "the State may not jeopardize the health and privacy of
poor women by excluding medically necessary abortions from a system
providing all other medically necessary care for the indigent."
[Fn. 63]
          Because 7 AAC 43.140 infringes on a constitutionally
protected interest, the State bears a high burden to justify the regulation. 
[Fn. 64]  Unless the State asserts a compelling state
interest, the statute will necessarily fail constitutional scrutiny. [Fn. 65]  
The State has failed to demonstrate such an
interest in this case.  It primarily defends 7 AAC 43.140 on the
grounds that "medical and public welfare interests . . . are served
by the legislature's decision to fund childbirth."  But the
regulation does not relate to funding for childbirth, and the
State's decision to fund prenatal care and other pregnancy-related
services has not been challenged.  Indeed, a woman who carries her
pregnancy to term and a woman who terminates her pregnancy exercise
the same fundamental right to reproductive choice.  Alaska's equal
protection clause does not permit governmental discrimination
against either woman; both must be granted access to state health
care under the same terms as any similarly situated person.  The State's 
undisputed interest in providing health care to women who
carry pregnancies to term has no effect on the State's interest in
providing medical care to Medicaid-eligible women who, for health
reasons, require abortions.
          The State also asserts an interest in minimizing health
risks to mother and child, and submits that these interests are
often closely aligned.  But those interests are not aligned in
precisely the situation contemplated by 7 AAC 43.140's Medicaid
exclusion: when pregnancy threatens a woman's health. Under the
U.S. Supreme Court's analysis in Roe v. Wade, the State's interest
in the life and health of the mother is paramount at every stage of pregnancy. 
[Fn. 66]  And in Alaska, "[t]he scope of the fundamental
right to an abortion . . . is similar to that expressed in Roe v. Wade." [Fn. 
67]  Thus, although the State has a legitimate interest
in protecting a fetus, at no point does that interest outweigh the
State's interest in the life and health of the pregnant woman. [Fn. 68]
          Because the State has not asserted an interest
sufficiently compelling to justify denying medically necessary care
to women who need abortions, we need not consider the means-ends
fit of the challenged regulation.  We conclude that 7 AAC 43.140
violates equal protection under the Alaska Constitution.
     B.The Separation of Powers Doctrine Cannot Shield
Unconstitutional Legislation.
          The State argues that by holding the Medicaid program to
constitutional standards, the superior court effected an
appropriation of funds in violation of the separation of powers between 
branches of government.  We disagree.  Under Alaska's
constitutional structure of government, "the judicial branch . . .
has the constitutionally mandated duty to ensure compliance with
the provisions of the Alaska Constitution, including compliance by
the legislature." [Fn. 69]  The superior court had not only the
power but the duty to strike the challenged restriction and any
underlying legislation if it found them to violate constitutional
rights; the same duty mandates our decision today.
          The separation of powers doctrine and its complementary
doctrine of checks and balances are implicit in the Alaska Constitution. [Fn. 
70]  In light of the separation of powers
doctrine, we have declined to intervene in political questions,
which are uniquely within the province of the legislature. [Fn. 71] 
But under the same doctrine, we "cannot defer to the legislature
when infringement of a constitutional right results from
legislative action"; legislative intent is not paramount when that
intent conflicts with the constitution. [Fn. 72]  And the mere fact
that the legislature's appropriations power underlies Medicaid
funding cannot insulate the program from constitutional review.  As
the California Supreme Court observed in rejecting nearly identical
restrictions on abortion funding, the State's claim would remove
all constitutional restraints from legislative exercise of the
spending power:
There is no greater power than the power of
the purse.  If the government can use it to nullify constitutional rights, by 
conditioning benefits only upon the sacrifice of such
rights, the Bill of Rights could eventually become a yellowing scrap of 
paper.[ [Fn. 73]]

          Legislative exercise of the appropriations power has not
in the past, and may not now, bar courts from upholding citizens'
constitutional rights.  Indeed, constitutional legal rulings 
commonly affect state programs and funding.  Many of the most
heralded constitutional decisions of the past century have, as a
practical matter, effectively required state expenditures.  In Green v. County 
School Board, the United States Supreme Court
ordered effective desegregation of public schools; [Fn. 74] in Gideon v. 
Wainwright, it required funding of counsel for indigent
criminal defendants; [Fn. 75] and in Shapiro v. Thompson, it
required states to give newcomers to the jurisdiction equal welfare benefits. 
[Fn. 76]  In each of these cases, a judicial decision
upholding constitutional rights required state expenditures to
support those rights.  As appellee doctors and Planned Parenthood
point out, the funding implications and separation of powers issue
in this case would be identical if the State relied on other
suspect criteria, such as race, to deny Medicaid benefits. 
Following the State's argument, the exclusion of one ethnic group -- or 
inclusion only of other specified groups -- within
legislative Medicaid appropriations would be immunized from
constitutional review, merely because the legislature had exercised
its spending power.  We emphatically reject such a claim.  Like the
Supreme Court decisions listed above, today's holding is squarely
within the authority of the court, not in spite of, but because of, the 
judiciary's role within our divided system of government.
          Our conclusion that the separation of powers doctrine supports 
today's decision is firmly supported by twenty-one other
courts that have considered a state's exclusion of medically
necessary abortions from state-funded health care programs. [Fn. 77]  The 
State has not identified a single state or federal case
holding that the separation of powers precludes a court from
ordering the state to provide equal funding for women whose health
is endangered by pregnancy. [Fn. 78]  Courts that have explicitly
considered separation of powers challenges to holdings like the one
we reach today have dismissed the challenges in no uncertain terms. 
The Massachusetts Supreme Judicial Court, for example, wrote:
[W]e have never embraced the proposition that
merely because a legislative action involves an exercise of the appropriations 
power, it is on that account immunized against judicial review. [We reject] 
the argument that either the doctrine of separation of powers or the political 
question doctrine requires that result. Without in any way attempting to 
invade the rightful province of the Legislature to conduct its own business, 
we have a duty, certainly since Marbury v. Madison, to adjudicate a claim that 
a law and the actions undertaken pursuant to that law conflict with the 
requirements of the Constitution.  "This," in the words of Mr. Chief Justice 
Marshall, "is of the very essence of judicial duty."[ [Fn. 79]]
We agree with this articulation of the court's fundamental powers
and duties.
          A federal case, State of Georgia v. Heckler, also
directly supports our conclusion. [Fn. 80]  In that case, the state
of Georgia sought reimbursement from the federal Department of
Health and Human Services (HHS) for money spent by the state to
fund medically necessary abortions.  Although the Court of Appeals for the 
Eleventh Circuit ultimately denied Georgia's claim, it
emphatically rejected HHS's argument that because Congress had not
appropriated money for medically necessary abortions, a district
court could not compel HSS to pay the claims. [Fn. 81]  As the
Eleventh Circuit court noted, the statute could preclude payment
only if an interpreting court so determined. [Fn. 82]  "There is no
doubt," the Heckler court concluded, "that if this Court decided
that these payments were legally required, HHS would be authorized
to make them." [Fn. 83]     
          We agree with the Eleventh Circuit:  It is legally
indisputable that a trial court order requiring state compliance
with constitutional standards does not violate the separation of
powers doctrine.
          The manner in which the State allocates public benefits
is subject to constitutional limitation under Alaska's equal
protection provision.  The State, having undertaken to provide
health care for poor Alaskans, must adhere to neutral criteria in
distributing that care. It may not deny medically necessary
services to eligible individuals based on criteria unrelated to the
purposes of the public health care program.  Moreover, the DHSS
regulation in this case discriminatorily burdens the exercise of a
constitutional right.  Because we conclude that denial of Medicaid
assistance to poor women who medically require abortions violates
equal protection, we AFFIRM the decision of the superior court.


Footnote 1:

     AS 47.07.010.

Footnote 2:
     See Committee to Defend Reprod. Rights v. Myers, 625 P.2d 779
(Cal. 1981); Moe v. Secretary of Admin. & Fin., 417 N.E.2d 387
(Mass. 1981); Women of Minnesota v. Gomez, 542 N.W.2d 17 (Minn.
1995); Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982); New
Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. 
denied, 526 U.S. 1020 (1999); Women's Health Ctr. of W. Va.,
Inc. v. Panepinto, 446 S.E.2d 658 (W. Va. 1993); but see Renee B.
v. State, Agency for Health Care Admin., No. S.C. 00-989, 2001 WL
776533, ___ So. 2d ___ (Fl. July 12, 2001); Doe v. Department of
Soc. Servs., 487 N.W.2d 166 (Mich. 1992); Rosie J. v. North
Carolina Dep't of Human Resources, 491 S.E.2d 535 (N.C. 1997); Hope
v. Perales, 634 N.E.2d 183 (N.Y. 1994); Fischer v. Department of
Pub. Welfare, 502 A.2d 114 (Pa. 1985).

          A number of lower state courts have also found that
funding restrictions similar to those challenged today violated
their state constitutions.  See Simat Corp. v. Arizona Cost
Containment System Admin., No. CV1999014614 (Ariz. Super. May 23,
2000); Doe v. Maher, 515 A.2d 134 (Conn. Super. 1986); Roe v.
Harris, NO. 96977 (Idaho Dist. Feb. 1, 1994); Doe v. Wright, No. 91-CH-1958 
(Ill. Cir. Dec. 2, 1994); Clinic for Women v. Humphreys,
No. 49D12-9908-MI-1137 (Ind. Super. Oct. 18, 2000); Jeannette R. v. Ellery, 
No. BDV-94-811 (Mont. Dist. May 19, 1995); Planned
Parenthood Ass'n v. Department of Human Resources of Oregon (Or.
App. 1983), aff'd on other grounds, 687 P.2d 785 (Or. 1984)
(declining to reach constitutional issue); Low-Income Women of
Texas v. Bost, 38 S.W.3d 689 (Tex. App. 2000); Doe v. Celani, No.
S81-84CnC (Vt. Super. May 23, 1986); but see Doe v. Childers, No.
94CI02183 (Ky. Cir. Aug. 7, 1995).

Footnote 3:

     Myers, 625 P.2d at 780.

Footnote 4:


Footnote 5:


Footnote 6:


Footnote 7:
     See AS 47.07; see also 42 U.S.C. sec. 1396-1396v (1997).

          A second program, Chronic and Acute Medical Assistance (CAMA) 
complements Medicaid by providing some medical care for
Alaskans who are poor but ineligible for Medicaid.  See AS
47.08.150.  CAMA's predecessor, the General Relief Medical program
(GRM), funded abortions for eligible women when the procedure was
necessary to protect their health or when pregnancy resulted from
sexual assault, sexual abuse of a minor, or incest. See 7 AAC
47.200(a)(4)(F) (2000); 7 AAC 47.290(8) (2000).  In 1998, after
nearly 30 years of government support for medically necessary
abortions through GRM, the legislature stopped funding the program
and enacted CAMA as a replacement.  CAMA covers essentially the
same services as GRM, except that it does not fund any abortions. 
Compare AS 47.08.150 with 7 AAC 47.200.

Footnote 8:

     See AS 47.07.010.  Medicaid relies on joint state-federal
funding, with the federal government paying a portion of the
state's costs.  See 42 U.S.C. sec.sec. 1396b(a), 1396d(b).  The "Hyde
Amendment" limits federal Medicaid contributions for abortions:
Federal funding is available for abortions in cases of rape or
incest or where the woman's life is in danger, but not for
abortions necessary to protect a woman's health.  See Pub. L. No.
106-554, sec.sec. 508-509, 114 Stat. 2763 (2000); Right to Choose v.
Byrne, 450 A.2d 925, 928-29 (N.J. 1982) (discussing history of Hyde

Footnote 9:

     7 AAC 43.140 (2000) provides in part:

     (a)     Payment for an abortion will, in the
department's discretion, be covered under Medicaid if the physician services 
invoice is accompanied by certification that the 

     (1)     life of the mother would be
endangered if the pregnancy were carried to term; or 

     (2)     pregnancy is the result of an act of
rape or incest. 

Footnote 10:

     Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d
963, 969 (Alaska 1997).

Footnote 11:

     For part of the time that this appeal was pending, DHSS
continued to withhold funding for medically necessary abortions,
despite the superior court's injunction.  On Planned Parenthood's
motion, the superior court held a show cause hearing to determine
whether the Department was in contempt of court.  The court heard
DHSS's claim that funding was unavailable, and determined, after a
"struggle", not to hold the agency in contempt.  However, the court
issued a new injunction to reiterate the terms of the first
injunction and explicitly direct that, while DHSS retained
discretion over its use of resources, it should consider state
Medicaid funds available to pay for medically necessary abortions. 
The parties on appeal presented records from these proceedings and
additional related briefing.

Footnote 12:

     M.C. v. Northern Ins. Co. of N.Y., 1 P.3d 673, 674-75 (Alaska

Footnote 13:

     See Rollins v. State, Dep't of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 206 (Alaska 1999).

Footnote 14:

     See James v. McCombs, 936 P.2d 520, 523 n.2 (Alaska 1997); see
also Dixon v. Dixon, 747 P.2d 1169, 1175 n.5 (Alaska 1987).

Footnote 15:

     Alaska Const. art. I, sec. 1.

Footnote 16:

     See supra note 2.

Footnote 17:

     See, e.g., Doe v. Maher, 515 A.2d 134, 157-59 (Conn. Super.
1986); Right to Choose v. Byrne, 450 A.2d 925, 934-37 (N.J. 1982); Planned 
Parenthood Ass'n v. Department of Human Resources of Oregon, 663 P.2d 1247, 
1257-61 (Or. App. 1983), aff'd on other
grounds, 687 P.2d 785 (Or. 1984); see also Committee to Defend
Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981).

Footnote 18:

     See, e.g., New Mexico Right to Choose/NARAL v. Johnson, 975
P.2d 841, 850-57 (N.M. 1998); Doe v. Maher, 515 A.2d at 159-62.

Footnote 19:

     See, e.g., Moe v. Secretary of Admin. & Fin., 417 N.E.2d 387,
398-99 (Mass. 1981); Doe v. Maher, 515 A.2d at 146-57.

Footnote 20:

     See, e.g., Women of Minnesota v. Gomez, 542 N.W.2d 17, 26-32
(Minn. 1995); Women's Health Ctr. of W. Va., Inc. v. Panepinto, 446
S.E.2d 658, 664-66 (W. Va. 1993).

Footnote 21:

     Panepinto, 446 S.E.2d at 667; see also Myers, 625 P.2d at 781
(addressing the narrow question "whether the state, having enacted
a general program to provide medical services to the poor, may
selectively withhold such benefits from otherwise qualified persons
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" and holding that it may not); Gomez, 542
N.W.2d at 28 (defining the "relevant inquiry" as "whether, having
elected to participate in a medical assistance program, the state
may selectively exclude from such benefits otherwise eligible
persons solely because they make constitutionally protected health
care decisions with which the state disagrees," and concluding that
the state may not); Byrne, 450 A.2d at 937 ("[W]e hold that the
State may not jeopardize the health and privacy of poor women by
excluding medically necessary abortions from a system providing all other 
medically necessary care for the indigent."); Johnson, 975
P.2d at 856 ("[C]ourts very rarely require the government to fund
its citizens' exercise of their constitutional rights. . . .  But
that is not to say that when the Department elects to provide
medically necessary services to indigent persons, it can do so in a way that 
discriminates against some recipients on account of
their gender.").

Footnote 22:

     Moe, 417 N.E.2d at 401 (quoting Maher v. Roe, 432 U.S. 464,
469-70 (1977)).

Footnote 23:


Footnote 24:

     Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 271
(Alaska 1984).

Footnote 25:

     See State v. Anthony, 810 P.2d 155, 157 (Alaska 1991).

Footnote 26:

     See Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d
391, 396 (Alaska 1997).

Footnote 27:

     Id. (quoting Alaska Pacific Assurance Co., 687 P.2d at 269).

Footnote 28:

     See id.; State v. Ostrosky, 667 P.2d 1184, 1192 (Alaska 1983).

Footnote 29:

     See id.

Footnote 30:

     Alaska Pacific Assurance Co., 687 P.2d at 271.

Footnote 31:

     See Matanuska-Susitna Borough Sch. Dist., 931 P.2d at 396
(quoting Alaska Pacific Assurance Co., 687 P.2d at 269-70).

Footnote 32:
     See id. at 396-97.

Footnote 33:

     See Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948
P.2d 963, 968-69 (Alaska 1997).

Footnote 34:

     See State v. Ostrosky, 667 P.2d 1184, 1192 (Alaska 1983).

Footnote 35:


Footnote 36:

     Valley Hosp., 948 P.2d at 969.

Footnote 37:

     687 P.2d at 273-74.

Footnote 38:

     See id.  We have since applied more relaxed scrutiny where "[t]he 
infringement on [the] right to travel is relatively small
and would not be likely to deter a person from traveling."  Church
v. State, Dep't of Revenue, 973 P.2d 1125, 1131 (Alaska 1999).  In
this case the likelihood of deterring exercise of the right is very
high:  The State's own statistics and the findings of the superior
court indicate that, under the challenged regulation, some women
"will have no choice but to go forward with the pregnancy."  We therefore 
follow Alaska Pacific Assurance Co. in applying strict

Footnote 39:

     See 687 P.2d at 266-67.

Footnote 40:

     Id. at 271.

Footnote 41:

     578 P.2d 951, 960 (Alaska 1978).

Footnote 42:


Footnote 43:


Footnote 44:


Footnote 45:

     7 AAC 43.385(2), (6), (9), (11) & (12).

Footnote 46:

     7 AAC 43.385(4).

Footnote 47:

     7 AAC 43.385(17).

Footnote 48:

     394 U.S. 618, 633 (1969).

Footnote 49:

     394 U.S. 618 (1969), partly rev'd on other grounds, Edelman v.
Jordan, 415 U.S. 651, 670-71 (1974).

Footnote 50:

     See id. at 621.

Footnote 51:
     Id. at 627.

Footnote 52:

     Id. at 631 (internal quotations omitted) (alteration in
original) (quoting United States v. Jackson, 390 U.S. 570, 581
(1968)).  This precedent was not discussed in the U.S. Supreme
Court's later decision, in Harris v. McRae, that the Hyde Amendment
was permissible under the federal constitution.  448 U.S. 297
(1980).  But in Valley Hospital, we explained that Alaska's broader
constitutional protection at times mandates parting ways with
federal precedent.  See 948 P.2d at 969.  In that case, we rejected
the plurality opinion of Planned Parenthood v. Casey, 505 U.S. 833,
877-78 (1992), in order to declare that a woman's right to an
abortion is fundamental.  See Valley Hosp., 948 P.2d at 969.  We
now join the majority of state courts in concluding that the
federal Supreme Court's decision in McRae provides inadequate
protection under our state constitution.

Footnote 53:

     In the "Purpose" section of the Medicaid statute, the
legislature "declare[s] as a matter of public concern that the
needy persons of this state receive uniform and high quality
medical care, regardless of race, age, national origin, or economic
standing."  AS 47.07.010.

Footnote 54:

     See Sonneman v. Knight, 790 P.2d 702, 705 (Alaska 1990) (using
term "rational basis" to describe lowest standard of review under
Alaska's sliding scale).

Footnote 55:

     Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976) (quoting State v. 
Wylie, 516 P.2d 142, 145 (Alaska 1973)).  Isakson
establishes that Alaska's rational basis review is more rigorous
than that of the United States Supreme Court.  Id.

Footnote 56:

     We note that the United States Supreme Court reached the
opposite conclusion regarding the analogous federal regulation in Harris v. 
McRae, 448 U.S. 297 (1980).  However, as noted above,
federal rational basis review is a less rigorous standard than Alaska's 
rational basis review.  See Isakson, 550 P.2d at 362.  We
have explained that Alaska's broader constitutional protection at
times mandates parting ways with federal precedent.  See Valley
Hospital, 948 P.2d at 969.  The United States Supreme Court in Harris v. McRae 
did not consider the discriminatory allocation of
government benefits cases, Shapiro v. Thompson, 394 U.S. 634 (1969)
and United States Department of Agriculture v. Moreno, 413 U.S. 528
(1973), discussed in this opinion.

Footnote 57:

     Shapiro, 394 U.S. at 638.

Footnote 58:

     413 U.S. at 538.

Footnote 59:

     See id.  The Court noted legislative history indicating
congressional intent to exclude "so[-]called 'hippies' and 'hippie
communes'" from the food stamp program.  Id. at 534.  But it

The challenged classification clearly cannot
be sustained by reference to this congressional purpose.  For if the 
constitutional conception of "equal protection of the laws" means anything, it 
must at the very least mean that a bare congressional desire to harm a 
politically unpopular group cannot constitute a legitimate government 
interest.  As a result, [a] purpose to discriminate against hippies cannot, in 
and of itself and without reference to [some independent] considerations in 
the public interest, justify the [challenged] amendment.

Id. at 534-35 (internal quotations omitted, third alteration added).

Footnote 60:

     Vincent v. State, 22 Cal. App. 3d 566, 572 (Cal. App. 1971).

Footnote 61:

     See id.

Footnote 62:

     Lee v. Smith, 373 N.E.2d 247, 248 (N.Y. 1977); see also White
v. Beal, 555 F.2d 1146, 1149-50 (3d Cir. 1977) (finding equal
protection issue sufficient to support jurisdiction, but not
deciding on equal protection grounds, where remedial eye-care was
available only if a person's visual impairment resulted from eye
disease or pathology); County of Orange v. Ivansco, 67 Cal. App.
4th 328, 337-38 (Cal. App. 1998) (finding equal protection
violation where parents supporting noncustodial children received
different benefits depending on the children's eligibility for
AFDC); but see Moreno v. Draper, 70 Cal. App. 4th 886, 888-89 (Cal.
App. 1999) (analyzing same regulation as in County of Orange and
finding no equal protection violation).

Footnote 63:

     Right to Choose v. Byrne, 450 A.2d 925, 937 (N.J. 1982). 

Footnote 64:

     See Matanuska-Susitna Borough School Dist., 931 P.2d 391, 396-97 (Alaska 
1997) (outlining State's burden for justifying
regulations); Valley Hosp. Ass'n v. Mat-Su Coalition for Choice,
948 P.2d 963, 971 (Alaska 1997) ("Since the right is fundamental,
it cannot be interfered with unless the interference is justified
by a compelling state interest.").

Footnote 65:

     See Matanuska-Susitna Borough Sch. Dist., 931 P.2d at 396-97.

Footnote 66:

     410 U.S. 113, 163-64 (1973).

Footnote 67:

     Valley Hospital, 948 P.2d at 969.

Footnote 68:

     Accord Byrne, 450 A.2d at 935 (holding, based on Roe, that "at
no point in pregnancy may [the state's interest in protection of
potential life] outweigh the superior interest in the life and
health of the mother").

Footnote 69:

     Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1982); see also Marbury v. 
Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is
emphatically the province and duty of the judicial department to
say what the law is.").

Footnote 70:

     See State v. Dupere, 709 P.2d 493, 496 (Alaska 1985), modified, 721 P.2d 
638 (Alaska 1986) ("The separation of powers
doctrine must be considered along with the complementary doctrine
of checks and balances."); Alaska State-Operated Sch. Sys. v.
Mueller, 536 P.2d 99, 103 (Alaska 1976); Public Defender Agency v.
Superior Court, 534 P.2d 947, 950 (Alaska 1975).

          The United States Supreme Court recently discussed the
division of powers within the federal system of government.  See United States 
v. Morrison, 120 S. Ct. 1740 (2000).  It reiterated
the duty of courts to limit acts of legislation when those acts
conflict with rights guaranteed by the Constitution, explaining
that the framers of the Constitution divided power among the three
branches of government

so that the Constitution's provisions would
not be defined solely by the political branches nor the scope of legislative 
power limited only by public opinion and the
legislature's self-restraint.  It is thus a permanent and indispensable 
feature of our constitutional system that the . . . judiciary is supreme in 
the exposition of the law of the

Id. at 1753 n.7 (internal quotations and citations omitted).

Footnote 71:

     See Abood v. League of Women Voters, 743 P.2d 333, 338 (Alaska
1987); Malone, 650 P.2d at 356-57.

Footnote 72:

     Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d
963, 972 (Alaska 1997).

Footnote 73:

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

Footnote 74:

     391 U.S. 430 (1968).

Footnote 75:

     372 U.S. 335 (1963).

Footnote 76:

     394 U.S. 618 (1969), partly rev'd on other grounds, Edelman v.
Jordan, 415 U.S. 651, 670-71 (1974).

Footnote 77:

     See supra note 2.

Footnote 78:

     A single justice in a concurring opinion stated that the
judiciary may not, under the equal protection clause of Michigan's
constitution, require legislative funding for medically necessary
abortion.  Doe v. Department of Soc. Servs., 487 N.W.2d 166, 182-83
(Mich. 1992) (Levin, J., concurring).  To our knowledge, his is the
sole dissenting voice on this issue.

Footnote 79:

     Moe v. Secretary of Admin. & Fin., 417 N.E.2d 387, 395 (Mass.
1981) (internal citations omitted); see also Committee to Defend
Reprod. Rights v. Cory, 183 Cal. Rptr. 475, 478 (Cal. App. 1982)
("When there is an unconstitutional restriction in an existing
appropriation, it offends no constitutional principle to direct
that the disputed payments be made from funds already appropriated
for the same general purpose."); Clinic for Women, Inc. v. Humphreys, No. 
49D12-9908-MI-1137, Slip Op. at 12 (Ind. Super.,
Oct. 18, 2000) ("If the challenged enactments violate the state
Constitution, the Court can grant relief even if doing so means
that state funds will be spent in a manner not explicitly approved
by the Legislature.  The Court has the power to shape appropriate
remedies and the Legislature has a duty to appropriate funds to
meet its constitutional obligations."); Low-Income Women v. Bost, 38 S.W.3d 
689, 702 (Tex. App. 2000) ("The relief sought by
Low-Income Women -- funding medically necessary abortions -- cannot
be characterized as a new appropriation.  They do not ask for a new
appropriation of funds to the Medical Assistance Program.  Rather,
they seek declaratory and injunctive relief against
unconstitutional restrictions placed on the use of funds already
appropriated pursuant to a pre-existing law authorizing funds to be
used for health care under the program.").

Footnote 80:

     768 F.2d 1293 (11th Cir. 1985).

Footnote 81:

     See id. at 1295-96.

Footnote 82:

     See id. at 1296.

Footnote 83: