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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Planned Parenthood of the Great Northwest (2/15/2019) sp-7334

State v. Planned Parenthood of the Great Northwest (2/15/2019) sp-7334

         Notice:  This opinion is subject to correction before publication in the P    ACIFIC 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, email corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



STATE OF ALASKA and THE                                   )  

COMMISSIONER OF THE                                       )    Supreme Court No. S-16123  

DEPARTMENT OF HEALTH &                                    )  

SOCIAL SERVICES,                                          )    Superior Court No. 3AN-14-04711 CI  

                                                          )  

                           Appellants,                    )    O P I N I O N  

                                                          )  

         v.                                               )    No. 7334 - February 15, 2019  

                                                          )  

PLANNED PARENTHOOD OF THE                                 )
  

GREAT NORTHWEST,                                          )
  

                                                          )
  

                           Appellee.                      )
  

                                                          )
  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                                                 

                  Judicial District, Anchorage, John Suddock, Judge.  



                  Appearances:  Stuart W. Goering and Margaret Paton Walsh,  

                  Assistant      Attorneys        General,      Anchorage,         and     Jahna  

                  Lindemuth, Attorney General, Juneau, for Appellants.  Susan  

                                                                                           

                  Orlansky, Reeves Amodio LLC, Anchorage, Janet Crepps,  

                                                                                 

                  Center      for   Reproductive         Rights,     Simpsonville,         South  

                  Carolina, Autumn Katz, Center for Reproductive Rights, New  

                  York, New York, and Laura F. Einstein, Planned Parenthood  

                                           

                  of the Great Northwest, Seattle, Washington, for Appellee.  

                  Kevin      G.    Clarkson,      Brena,      Bell,    &    Clarkson,       P.C.,  

                  Anchorage, Steven H. Aden, Alliance Defending Freedom,  

                  Washington, D.C., for Amicus Curiae Alaska Physicians for  

                                                                                 

                  Medical Integrity.  Jeffrey M. Feldman, Summit Law Group  

                                                           

                  PLLC, Seattle, Washington, and Sara L. Ainsworth, Legal  

                  Voice, Seattle, Washington, for Amicus Curiae Legal Voice.  

                                                                                   

                  James      J.   Davis,     Jr.,   Northern      Justice     Project,     LLC,  

                  Anchorage, and Catherine A. McKee, National Health Law  


----------------------- Page 2-----------------------

                   Program,   Carrboro,   North   Carolina,   for   Amici   Curiae  

                   Northern Justice Project, LLC and The National Health Law  

                                                                                        

                   Program.  



                   Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                                               

                   and Carney, Justices.  



                   CARNEY, Justice.
  

                   STOWERS, Chief Justice, dissenting.
  



I.       INTRODUCTION  



                   We are again called upon to determine whether restrictions placed upon  



Alaska's Medicaid funding of abortions violate the Alaska Constitution.  A 2014 statute  

                                                                                   



and 2013 regulation re-define which abortions qualify as "medically necessary" for the  

                                                                                                                  



purposes of Medicaid funding.  The statute defines medically necessary abortions as  



those that "must be performed to avoid a threat of serious risk to the life or physical  

                                                                                                



health of a woman from continuation of the woman's pregnancy" as a result of a number  

                                                                                                           



of listed medical conditions; the regulation is similarly restrictive.  Planned Parenthood  

                                                                                              



of the Great Northwest challenged both the statute and regulation as unconstitutional,  



                                                                                           

and the superior court held that both measures violated the equal protection clause of the  



                                                                        

Alaska Constitution.  The court reasoned that these measures imposed a "high-risk, high- 



hazard" standard on abortion funding unique among Medicaid services, and held that our  



2001 decision striking down an earlier abortion funding restriction on equal protection  



grounds  compelled  the  same  result.    The  State  appeals,  arguing  that  the  statute  and  



regulation should be interpreted more leniently and therefore do not violate the Alaska  



Constitution's equal protection clause.  



                   We  affirm  the  superior  court's  decision.    These  measures  cannot  be  



                                                                 

interpreted as leniently as the State suggests, and their language compels a "high-risk,  



                                                    

high-hazard" interpretation akin to that adopted by the superior court.  This standard  



                                                           -2-                                                     7334
  


----------------------- Page 3-----------------------

imposes different requirements for Medicaid funding eligibility upon women who choose  



                                                 

to have abortions than it does upon women who choose to carry their pregnancies to  



           

term.  The statute's and the regulation's facially different treatment of pregnant women  



                                                                 

based upon their exercise of reproductive choice requires us to apply strict scrutiny, and  



the proposed justifications for the funding restrictions do not withstand such exacting  



                                           

examination.  We therefore conclude that the statute and the regulation violate the Alaska  



Constitution's guarantee of equal protection.  



II.       FACTS AND PROCEEDINGS  



          A.         Medicaid Coverage In Alaska  

                     Medicaid is a health insurance program for low-income individuals.1  It was  



                                                     2 

created by the federal government,  which sets guidelines for eligibility and requires that 

                                                                                                                    



                                             3  

certain benefits be provided.   The federal government provides matching funds that  



                                                                                  4  

subsidize states' costs in providing such health care.   Individual states administer the  



                                                                              5  

program in compliance with federal requirements.   But each state decides whether to  



          1          AS  47.07.010.    Medicaid  also  provides  coverage  for  certain  other  



individuals.  AS 47.07.020 (Medicaid eligible persons).  



          2          See Social Security Act, Pub. L. 89-97, 79 Stat. 286 (1965); 42 U.S.C.  



 1396-1 (2012).  



          3          See 42 U.S.C.  1396a (describing requirements for state plans for medical     



assistance); id.  1396-1.  



          4         Id.  1396-1.  



          5         Id. (providing for appropriations for payments to states that have received  



federal approval of their medical assistance plans).  



                                                                 -3-                                                          7334
  


----------------------- Page 4-----------------------

offer benefits in addition to those required by federal rules, and each state is authorized       

to limit services as long as such limits comply with federal standards.6  



                    Alaska's Medicaid program funds "uniform and high quality" medical care  



for  low-income  individuals  "regardless  of  race,  age,  national  origin,  or  economic  



               7  

standing."   Medicaid is administered by the Department of Health and Social Services  



(DHSS); it pays for medical services that are "medically necessary as determined by"  



                                                                                                                                 8  

                                                                                                           

statute,  regulation,  "or  by  the  standards  of  practice  applicable  to  the  provider." 



Although  DHSS's  regulations  do  not  define  "medically  necessary,"  they  state  that  



Medicaid will only pay for services that are "reasonably necessary for the diagnosis and  



treatment of an illness or injury, or for the correction of an organic system, as determined  

upon review by the department."9  



                                                                                                     

                    Doctors submit requests for Medicaid reimbursement of services provided  



to individuals enrolled in the Medicaid program.  In Alaska DHSS usually provides  



                                                                                                                 

Medicaid reimbursement to doctors without requiring prior authorization or a significant  



                                                                                                            

review of the claims.  Where there is concern about cost-effectiveness, efficacy, fraud,  



waste,  or  abuse  associated  with  certain  treatments,  doctors  are  required  to  provide  



                                                 

additional documentation of the need for the treatment.  In such situations doctors submit  



                                                                                                   

the  documentation  with  their  payment  request.    This  has  been  the  method  used  for  



                                                                       

abortion  payments.    For  a  third  category  of  claims,  such  as  surgeries  and  lengthy  



                                   

hospitalizations, prior authorizations are required.  Virtually all claims, regardless of  



          6         See AS 47.07.030.  



          7         AS 47.07.010.  



          8         7 Alaska Administrative Code (AAC) 105.100(5) (am. 10/1/2011).  



          9         7 AAC 105.110(1) (am. 5/1/2016).  



                                                               -4-                                                         7334
  


----------------------- Page 5-----------------------

                                                                                                        

which  type  of  processing  they  originally  received,  are  subject  to  Medicaid's  post- 



payment review processes, including audits.  



          B.        The 1998 Regulation Addressing Medicaid Coverage Of Abortions  



                                                                    

                    This case arises out of a series of legislative and regulatory measures and  



                                                                                                             

court decisions involving restrictions on Medicaid funding for abortions.  In 1998 DHSS  



                                                                                                                  

enacted a regulation that brought Alaska's Medicaid coverage of abortions in line with  

                                             10  The Hyde Amendment, originally passed in 1976 by the  

the federal Hyde Amendment.                                                          



United States Congress, prohibits the use of federal funds "to perform abortions except  

                                                                                        



where the life of the mother would be endangered if the fetus were carried to term; or  

                                                                                                                      11  It has  

except for such medical procedures necessary for the victims of rape or incest."                                          



been slightly modified over the years, but remains in effect and continues to limit federal  

                                                                                        

funding for abortion to these two limited circumstances.12  



                    In 2001 we affirmed the invalidation of the 1998 regulation based on the  

Alaska Constitution's equal protection clause,13 noting that the regulation's denial of  

                                            



                                                                     14  

funding  for  "medically  necessary  abortions"                          was  a  departure  from  "the  Medicaid  

                                                                                 



program's  purpose  of  granting  uniform  and  high  quality  medical  care  to  all  needy  



          10        7 AAC 43.140 (am. 7/1/98).  



          11        Harris v. McRae ,  448 U.S. 297, 302 (1980) (quoting Pub. L. 96-123,  109,     



93 Stat. 926).  



          12        See H.R. 7, 115th Cong. (2017).  



          13  

                                                                                 

                    See State, Dept. of Health & Soc. Servs. v. Planned Parenthood of Alaska,  

Inc. (Planned Parenthood 2001), 28 P.3d 904, 915 (Alaska 2001).  



          14        Id. at 905.  



                                                               -5-                                                         7334
  


----------------------- Page 6-----------------------

                               15  

persons of this state."            We explained that "a woman who carries her pregnancy to term     



and a   woman   who terminates her pregnancy exercise the same fundamental right to  



reproductive  choice"  and  that  "Alaska's  equal  protection  clause  does  not  permit  

governmental discrimination against either woman."16  We applied strict scrutiny because  



the regulation "effectively deter[red] the exercise of" the fundamental constitutional right  



                                                                                                       

to reproductive choice "by selectively denying a benefit to those who exercise[d]" that  



        17  

right.      We held that the State had failed to present a compelling interest to justify the  

                      18  We affirmed the superior court judgment striking down the regulation,  

discrimination.                                                         



effectively reinstating the general Medicaid requirement of medical necessity that had  



                                                                                    19  

                                                                                        As a result, the Medicaid  

been in place before the promulgation of the regulation. 



                                                                                                                   

program would pay for an abortion if it was "medically necessary" according to either  



                                                                                       

the relevant Alaska Medicaid regulations or "the standards of practice applicable to the  



               20  

                   This continued until DHSS and the legislature adopted the regulation and  

provider."                                                              



statute at issue in this case.  



          C.	      Planned Parenthood Challenges The 2013 Regulation And The 2014  

                    Statute Regulating Medicaid Coverage Of Abortions  



                   In 2013 DHSS amended the definitions related to Medicaid regulations to  

                                                                                                           



          15       Id. at 911 (citing AS 47.07.010 (1972)).
  



          16       Id. at 913.
  



          17
      Id. at 909.  



          18       Id. at 912-13.  



          19       Id. at 905-06, 915.  



          20        7 AAC 105.100(5).  



                                                             -6-	                                                      7334
  


----------------------- Page 7-----------------------

                                                                                                                       21 

                                                                       

require a more detailed certificate to obtain state Medicaid funding for an abortion.                                      The  



                22 

                                                                  

2013 form          required doctors to certify that an abortion was required by one of the two  



                                                                                                   

circumstances permitting federal abortion funding under the Hyde Amendment, or that,  



"in [his or her] professional medical judgment the abortion procedure was medically  



                     

necessary to avoid a threat of serious risk to the physical health of the woman from  



continuation  of  her  pregnancy  due  to  the  impairment  of  a  major  bodily  function  



                                                                                   23  

including but not limited to one of" 21 listed conditions.                              



          21        In 2012 DHSS had issued  a regulation requiring doctors to complete a  



certificate to request Medicaid payment for an abortion.  7 AAC 160.900(d)(30) (am.  

1/16/2013).  Under the 2012 regulation, the doctor had to certify whether an abortion met  

                                                           

the requirements of the federal Hyde Amendment, or, if not, whether an abortion was  

"medically necessary."  "Medically necessary" was not defined.  



          22  

                                                                                                                   

                    The regulation, 7 AAC 160.900(d)(30) (am. 2/2/2014), stated only that  

DHSS adopts "the Certificate to Request Funds for Abortion, revised as of December  

2013."  It was the accompanying certificate, not the regulation itself, that outlined the  

                                                                                                               

new criteria for medical necessity applicable to abortions.  



          23  

                                                                                         

                    See 7 AAC 160.900(d)(30).  These conditions are:  (1) diabetes with acute  

metabolic  derangement  or  severe  end  organ  damage;  (2)  renal  disease  that  requires  

dialysis treatment; (3) severe preeclampsia; (4) eclampsia; (5) convulsions; (6) status  

epilepticus; (7) sickle cell anemia; (8) severe congenital or acquired heart disease class  

                                                     

IV; (9) pulmonary hypertension; (10) malignancy where pregnancy would prevent or  

limit treatment; (11) severe kidney infection; (12) congestive heart failure; (13) epilepsy;  

                                                                                                             

(14)  seizures;  (15)  coma;  (16)  severe  infection  exacerbated  by  the  pregnancy;  (17)  

rupture  of  amniotic  membranes;  (18)  advanced  cervical  dilation  of  more  than  6  

                                                                                          

centimeters at less than 22 weeks gestation; (19) cervical or cesarean section scar ectopic  

                                                                                        

implantation; (20) pregnancy not implanted in the uterine cavity; and (21) amniotic fluid  

                                                                                     

embolus.  



                    If none of the listed conditions applied, a doctor could indicate that an  

abortion  was  necessary  due  to  "another  physical  disorder,  physical  injury,  physical  

illness, including a physical condition  arising from the pregnancy" or "a psychiatric  

                                                            

disorder that places the woman in imminent danger of medical impairment of a major  

                                                                                               

                                                                                                            (continued...)  



                                                              -7-                                                        7334
  


----------------------- Page 8-----------------------

                    Planned Parenthood brought suit, arguing that the regulation violated the         



Alaska  Constitution's  equal  protection  guarantee  by  singling  out  abortion  among  



                                                                                                 

Medicaid-funded services for a restrictive definition of medical necessity.  The superior  



court granted a preliminary injunction against enforcement of the regulation in February  



2014.  



                    While Planned Parenthood's challenge was pending, the legislature codified  



                                                                                         

a definition of "medically necessary" similar to that in the 2013 DHSS regulation.  The  



enacted statute, AS 47.07.068, provides that DHSS may not pay for an abortion unless  



                                                                                

it is "medically necessary" or the pregnancy was the result of rape or incest.  The statute  



                                                                                                    

defines a "medically necessary" abortion as "mean[ing] that, in a physician's objective  



and reasonable professional judgment after considering medically relevant factors, an  



                                                                                              

abortion must be performed to avoid a threat of serious risk to the life or physical health  



                                                                                               24  

of  a  woman  from  continuation  of  the  woman's  pregnancy."                                      Planned  Parenthood  



                     

amended its complaint in May 2014 to include an equal protection challenge to the  



                                                                             

statute and filed a second motion asking the court to extend the preliminary injunction  



                                                      

to include the statute as well as the regulation.  The court granted the motion, enjoining  



implementation of both measures pending the outcome of trial.  



                                                                                            

                    At the conclusion of trial in February 2015 the superior court struck down  



                                    

both AS 47.07.068 and 7 AAC 160.900(d)(30) on equal protection grounds, finding that  



the  statute  and  the  regulation  impermissibly  discriminated  against  indigent  women  



                                                                   

seeking  abortions.    The  court  found  that  the  legislature  intended  AS  47.07.068  to  



delineate  "a  high-risk,  high-hazard  standard  that  would  preclude  funding  for  most  



          23        (...continued)  



bodily function if an abortion is not performed."  



          24        AS 47.07.068(b)(3).  



                                                               -8-                                                         7334
  


----------------------- Page 9-----------------------

Medicaid abortions."  The court concluded that the statute's definition of "medically  



necessary" covered "only abortions required to avoid health detriments attributable to  

                                                                           



the enumerated conditions, either fully realized or demonstrably imminent."  The court   



determined   that   the   statute   and   regulation,   so   construed,   violated   the   Alaska  

                                                                                                   



Constitution's equal protection clause, and it permanently enjoined their enforcement.   



The State appeals.  



III.       STANDARD OF REVIEW  



                     We use our independent judgment to review matters of constitutional or   

                                    25  When interpreting a regulation that does not implicate agency  

statutory interpretation.                                                                     

expertise, "we exercise our independent judgment."26  In the equal protection context our  

                                                                                           



independent review includes "assess[ing] the nature and importance of the competing  



personal and governmental interests at stake, identify[ing] the relevant level of scrutiny  



for governmental action, and assess[ing] the means chosen to advance governmental  



                27  

interests."           Whether  the  classes  being  compared  in  an  equal  protection  case  are  

                                                                                  

"similarly situated" is also a legal question reviewed de novo.28  



          25        Premera Blue Cross v. State, Dep't of Commerce, Cmty. &                                 Econ. Dev., Div.  



of Ins., 171 P.3d 1110, 1115 (Alaska 2007).  



          26         See City of Valdez v. State, 372 P.3d 240, 246 (Alaska 2016) ("If no agency  



expertise  is  involved  in  the  agency's  interpretation,  we  apply  the  substitution  of  

judgment  standard.    Under  this  standard,  we  exercise  our  independent  judgment,  

                                                                           

substituting  it  'for  that  of  the  agency  even  if  the  agency's  [interpretation]  ha[s]  a  

reasonable basis in law.' " (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co.,  

                                       

746 P.2d 896, 903(Alaska 1987))).  



          27        Planned Parenthood of The Great Nw. v. State (Planned Parenthood 2016),  



375 P.3d 1122, 1132 (Alaska 2016).  



          28        Id. at 1136.  



                                                                -9-                                                         7334
  


----------------------- Page 10-----------------------

IV.       DISCUSSION
  



                                                                                                                

                    Planned  Parenthood  argues  the  Medicaid  funding  statute  is  facially  



unconstitutional because it unconstitutionally discriminates by treating two classes of  



                                                       

people  unequally  -  women  who  seek  abortions  and  women  who  seek  to  carry  



                               29  

pregnancies  to  term.               Statutes  "may  be  found  to  be  unconstitutional  as  applied  or  



                                               30  

unconstitutional on their face."                   "We uphold a statute against a facial constitutional  



                                                                                         

challenge if 'despite . . . occasional problems it might create in its application to specific  



                                                               31 

                                                                                              

cases, [it] has a plainly legitimate sweep.' "                     "A party raising a constitutional challenge  



to  a  statute  bears  the  burden  of  demonstrating  the  constitutional  violation.    A  



presumption   of   constitutionality   applies,   and   doubts   are   resolved   in   favor   of  

constitutionality."32  



                    To  determine  whether  the  challenged  statute  is  constitutional  we  first  



                              33  

                                                                      

interpret  the  statute.             After  determining  the  meaning  of  the  statute,  we  analyze  its  

constitutionality under Alaska's equal protection doctrine.34  



          29        See id. at 1135; see also  Nicholas Quinn Rosenkranz,                           The Subjects of the     



Constitution, 62 STAN .   L.   REV .   1209, 1238 (2010) ("[A] 'facial challenge' is nothing   

more  nor  less  than  a  claim  that  Congress  (or  a  state  legislature)  has  violated  the  

Constitution.").  



          30  

                                                                        

                    State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 372 (Alaska  

2009).  



          31        State v. Planned Parenthood (Planned Parenthood 2007), 171 P.3d 577,  



581 (Alaska 2007).  



          32        See State, Dept. of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001).  



          33  

                                                                                                             

                    See  Estate  of  Kim  ex  rel.  Alexander  v.  Coxe,  295  P.3d  380,  386-88  

(Alaska 2013).  



          34        See Planned Parenthood 2016, 375 P.3d at 1135-36.  



                                                             -10-                                                        7334
  


----------------------- Page 11-----------------------

                     Similarly, to determine whether the challenged regulation is constitutional  



we  must  interpret  the  regulation  and,  once  its  meaning  is  determined,  assess  its  

constitutionality under Alaska's equal protection doctrine.35  



          A.        Analysis Of The Statute And Regulation  



                                                                                                          

                     This section analyzes two similar but not identical texts:  the statute and the  



                                                                                             

DHSS regulation.  We primarily discuss the statute, but our conclusions apply equally  



to the regulation except where noted.  



                                                                                     

                    When "interpreting a statute, we consider its language, its purpose, and its  



                              

legislative history, in an attempt to 'give effect to the legislature's intent, with due regard  



                                                                                         36  

                                                                                                    

for the meaning the statutory language conveys to others.' "                                We begin with the text and  

its plain meaning, and we use a "sliding-scale approach" to interpret the language.37  



                                                                                                

"[T]he plainer the statutory language is, the more convincing the evidence of contrary  



                                                          38  

                                                                          

legislative purpose or intent must be."                        When "a statute's meaning appears clear and  



                                                                                                

unambiguous, . . . the party asserting a different meaning bears a correspondingly heavy  



                                                                                      39  

burden  of  demonstrating  contrary  legislative  intent."                                  If  an  ambiguous  text  is  



susceptible   to   more   than   one   reasonable   interpretation,   of   which   only   one   is  



constitutional,   the   doctrine   of   constitutional   avoidance   directs   us   to   adopt   the  



          35        Planned Parenthood 2001 , 28 P.3d 904, 908 (Alaska 2001).  



          36        Alyeska Pipeline Serv. Co. v. DeShong                      , 77 P.3d 1227, 1234 (Alaska 2003)   



(quoting Muller v. BP Expl. (Alaska) Inc. , 923 P.2d 783, 787 (Alaska 1996)).  



          37         Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).  



          38        State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016) (quoting Adamson v.  



Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014)).  



          39        Id. (quoting  Univ. of Alaska v. Geistauts, 666 P.2d 424, 428 n.5 (Alaska  



 1983)).  



                                                               -11-                                                         7334
  


----------------------- Page 12-----------------------

interpretation that saves the statute.40  



                    Both the State and Planned Parenthood argue that the text of the statute  



                          

unambiguously supports their respective interpretations.  Planned Parenthood interprets  



                                                                                                                

the statute to allow Medicaid funding for an abortion only when it is the sole treatment  



available to protect a woman against a serious risk of death or impairment of a major  



                                                                                                                        

bodily function because of an "explicitly catastrophic" medical condition. The State, on  



                                                                      

the other hand, reads the statute to provide "a broad and inclusive definition" of medical  



                       

necessity that allows doctors to use their professional judgment when one of "a wide  



                                                                                                                       

range of ailments and conditions" elevates the health risks pregnancy poses.  The State  



asserts that the statute "provides reimbursement for any woman who faces . . . a risk  



greater than the baseline risks of pregnancy" or a "non-trivial" health threat.  It posits  



                              

that  such  a  health  threat  may  sometimes  include  exacerbation  of  a  physical  health  



                                                                            

condition because of "medically relevant factors" like poor self-care and a lack of secure  



             41  

housing.         



          40        See   Estate  of  Kim  ex  rel.  Alexander  v.  Coxe ,  295  P.3d  380,  388  



(Alaska 2013) (explaining that "[t]he doctrine of constitutional avoidance 'is a tool for   

choosing between competing plausible interpretations of a statutory text' " such that, if                                  

the statute would be unconstitutional under one and valid under the other, "[our] plain     

duty is to adopt that which will save the Act" (first quoting Clark v. Martinez, 543 U.S.  

371, 381-82 (2005); then quoting Rust v. Sullivan , 500 U.S. 173, 190 (1991))).  



          41        The  parties  devoted  some  time  at  trial  eliciting  testimony  about  what  



                                                                                                                       

"medically  relevant  factors"  might  include.                         Several  doctors  testified  that  they  ask  

                                                                                   

patients about a wide range of information when they begin treatment, including "life[]  

circumstances that affect[] the probability of receiving treatment," such as whether a  

patient works the night shift or has access to reliable refrigeration.  The State agrees on  

                                                                                                                       

appeal that factors such as a patient's housing situation and capacity for self-care can be  

                                                          

medically relevant factors in evaluating the risks and hazards faced by, for example, a  

                                              

diabetic woman.  



                                                               -12-                                                         7334
  


----------------------- Page 13-----------------------

                    1.        The text of the statute  

                    Statutory interpretation begins with the plain meaning of the statutory text.42 



      

 If the meaning and intent are clear, we do not apply interpretive canons; a canon of  



                                                     

construction is only "an aid to the interpretation of statutes that are ambiguous or that  

leave unclear the legislative intent."43  



                                                                                                             

                    Alaska  Statute  47.07.068(a)  prohibits  Medicaid  payment  for  abortions  



                                                 

"unless the abortion services are for a medically necessary abortion or the pregnancy was  



                                                                                   

the result of rape or incest."  Subsection (b)(3) defines a "medically necessary abortion"  



     

as  one  that,  "in  a  physician's  objective  and  reasonable  professional  judgment  after  



considering medically relevant factors . . . must be performed to avoid a threat of serious  



                                                           

risk  to  the  life  or  physical  health  of  a  woman  from  continuation  of  the  woman's  



                  44  

pregnancy."           Subsection (b)(4) then explains that " 'serious risk to the life or physical  



                                                                                                   

health' includes, but is not limited to, a serious risk to the pregnant woman of (A) death;  



or (B) impairment of a major bodily function because of" any of 21 serious conditions  



                                   

or   "another   physical   disorder,   physical   injury,   or   physical   illness,   including   a  



life-endangering physical condition caused by or arising from the pregnancy that places  



the  woman  in  danger  of  death  or  major  bodily  impairment  if  an  abortion  is  not  

performed."45  



          42        Ward, 288 P.3d at 98.  



          43        See West v. Municipality of Anchorage, 174 P.3d 224, 229 (Alaska 2007)           



(quoting Crump v. State, 625 P.2d 857, 859 (Alaska 1981)) (discussing ejusdem generis  

canon of interpretation).  



          44        AS 47.07.068(b)(3).  



          45        AS 47.07.068(b)(4).  There are some differences between the statute's and  



regulation's lists of conditions.  Where the regulation lists "severe kidney infection," the  

                          

                                                                                                            (continued...)  



                                                             -13-                                                        7334
  


----------------------- Page 14-----------------------

                                                                          

                   We  conclude  that  the  statute's  text  is  ambiguous  because  "threat  of  a  



                                                                    

serious risk" is not defined. The lack of a clear definition creates an ambiguity regarding  



whether a woman seeking an abortion will qualify for coverage based on one of the listed  



                                                                                                      

medical conditions that authorize reimbursement for the cost of the procedure.  The  



parties' textual dispute centers primarily on subsections (b)(3) and (b)(4) of the statute.  



We  analyze  their  arguments  below,  applying  canons  of  construction  and  other  



interpretive aids to discern the statute's meaning in order to determine whether it is  



constitutional.  



                             a.	       The   list   of   medical   conditions   and   the   "catch-all"  

                                       provision  



                                                       

                   The parties dispute the  significance of the list of medical conditions in  



subsection (b)(4) and whether the final "catch-all" provision of the list broadens the  



permissive scope of the statute in a way that may affect its constitutionality.  Planned  



                   

Parenthood argues that the statute requires a woman both to presently suffer from one  



                                                                                 

of the listed conditions and to be at risk of impairment of a major bodily function because  



                                                                                                             

of that condition before Medicaid will pay for an abortion.  In contrast, the State asserts  



that  the  list  merely  "serves  to  illuminate  the  concept  of  'serious  risk'  by  providing  



examples of the very serious complications that can develop during pregnancy."  We  



                                                                                                      

conclude that the catch-all provision does not meaningfully expand the permissive scope  



of the statute.  



                                                                              

                   The statute provides that a "serious risk to the life or physical health" of a  



                                                                                   

woman means "a serious risk to the pregnant woman of . . . death[] or . . . impairment of  



          45       (...continued)  



statute lists "kidney infection." AS 47.07.068(b)(4)(B)(xi); 7 AAC 160.900(d)(30).  Only  

the regulation refers to psychiatric or mental health disorders.  See AS 47.07.068(b).  

                                                                              

Finally,         the     statute's        catch-all         provision          is     more        detailed.             See  

AS 47.07.068(b)(4)(B)(xxii).  



                                                            -14-	                                                     7334
  


----------------------- Page 15-----------------------

                                                                                      46  

                                                                                            

a major bodily function because of" one of 21 conditions.                                 The phrase "impairment of  



a major bodily function" refers to a serious health problem, though a doctor for Planned  



                                                                                                    47  

                                                                                                              

Parenthood testified that the phrase is "not medical terminology."                                      At trial one of the  



                                                                  

State's experts testified that he understood "impairment of a major bodily function" to  



                                                                               

mean "a change in the major organ system that . . . I think has the potential to lead to a  



                                       48  

                                                                                                                   

life threatening problem."                 But a condition might have a permanent effect on physical  



health  without  being  fairly  characterized  as  causing  "impairment  of  a  major  bodily  



                                                                                                  

function."  The 21 listed examples further narrow the category of medical conditions that  



                                                                       

would qualify a woman for abortion funding.  It is not enough for a pregnant woman to  



                                                                                                            

face a serious risk to her life or physical health, or even to face a serious risk of acquiring  



one of the conditions listed in subsection (b)(4).  The statute instead requires a woman  



          46        AS 47.07.068(b)(4).  At oral argument the State argued for the first time  



that because the statutory definition of " 'serious  risk to the life or physical health'  

includes, but is not limited to, a serious risk to the pregnant woman," the statute in fact  

                                                                                           

covers  a  much  broader  range  of  health  conditions  than  those  explicitly  listed  in  

                                                                  

subsection (b)(4).  (emphasis added).  



          47        The  phrase  appears  to  be  used  primarily  in  the  context  of  medical  



exceptions to laws restricting abortion.   See, e.g., MICH .   COMP .   LAWS  722.902(b)  

(" 'Medical emergency' means that condition . . . for which a delay in performing an  

                                                                        

abortion will create serious risk of substantial and irreversible impairment of a major  

bodily function."); Planned Parenthood of Se. Penn. v. Casey , 505 U.S. 833, 879 (1992)  

(reviewing a Pennsylvania statute containing similar language); Isaacson v. Horne , 716  

                                                                     

F.3d  1213,  1218  (9th  Cir.  2013)  (reviewing  an  Arizona  statute  containing  similar  

language).  "Major bodily function[]" is also used in the Americans with Disabilities Act  

to mean "including but not limited to[] functions of the immune system, normal cell  

                                                                                                     

growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine,  

and reproductive functions."  42 U.S.C.  12102(2)(B).  



          48  

                                                     

                    Dr. Steven Calvin is an obstetrician and gynecologist who specializes in  

maternal fetal medicine.  



                                                              -15-                                                         7334
  


----------------------- Page 16-----------------------

to face "a serious risk of death or [of] impairment of a major bodily function"                                     caused by  

one of those conditions.49  



                    Many of the conditions in subsection (b)(4) are quite serious.  Preeclampsia,  



                                                       

for example, is an adverse reaction by a pregnant woman's immune system to paternal  



                                        

antigens in the placenta.  The superior court found that it is "a precursor to numerous  



modalities of life threatening damage" during the pregnancy and that it entails a currently  



                                                                                                       

unquantifiable increased risk of heart disease and stroke 20 years in the future.  Ectopic  



                                                                           

implantation  or  other  implantation  outside  the  uterus  will,  according  to  testimony,  



                                                                                                     

"almost always kill the woman before the fetus would be viable."  Other conditions are  



                                            

less life-threatening but still exacerbated by pregnancy.  For example, the superior court  



                                                                                                     

noted that the physical stresses of "pregnancy can cause a woman with heart disease to  



advance to a higher class of functional incapacity" or "entail[] a risk of death" for a  



woman whose heart defect was previously "relatively asymptomatic."  Likewise, sickle  



                                                                                                               

cell anemia causes low blood oxygen, which triggers pain crises when a patient's bone  



              

marrow increases production of red blood cells.  The elevated metabolic demands of  



pregnancy often increase the frequency of pain crises in women with the condition.  



                                                                                             

There was also testimony that a few of the listed conditions are an odd fit with the list  



because the circumstances under which they occur can never lead to an abortion or  



                                                                                                                 

because abortion would almost never mitigate the risk faced by a woman.  One of these  



is amniotic fluid embolus, which one of Planned Parenthood's experts testified occurs  



during labor and delivery and can only be definitively diagnosed in an autopsy.  



                                                                           

                    The statute's legislative history also supports a restrictive reading of the list  



                                    

in subsection (b)(4).             A staff member for the bill's Senate sponsor testified that the  



                                                                                                          

federal Hyde Amendment's "death portion [was] the foundation" for the statutory text;  



          49        AS 47.07.068(b)(4)(B)(xxii).  



                                                              -16-                                                             7334  


----------------------- Page 17-----------------------

                                                                                                         

the  drafters  had  included  an  additional  provision  for  "major  bodily  impairment"  in  



response to our holding in Planned Parenthood 2001 that Medicaid funding for abortion  



                                                                                                    50  

could not be limited strictly to the Hyde Amendment's standards.                                        And one of the  



                                  51 

                                                                                        

State's medical experts              testified before the legislature that he had worked with the bill's  



sponsor  to  develop  a  "list  of  conditions  that  unequivocally  threaten  the  life  of  a  



             52  

                                    

mother."         The expert stated that the list was intended to be such that a doctor would  



                    

recommend  abortion  to  a  woman  with  one  of  the  conditions  even  if  she  wished  to  

continue the pregnancy.53  



                                                                                                        

                    Although the State correctly notes that the statements of an expert witness  



should not be given greater weight than those of legislators, this doctor was not merely  



    

a witness testifying before the legislature; he worked with the bill's sponsor specifically  



                                                                                                                              54  

                         

to create the list of life-threatening conditions incorporated into the statutory language. 



His  testimony  therefore  reliably  informs  our  understanding  of  the  sponsor's  intent.  



Moreover,  the  Senate  rejected  an  amendment  that  would  have  removed  the  list  of  



conditions and instead required a doctor to certify an abortion was medically necessary  



          50        Statement  of  Chad  Hutchinson,  Staff  Member  to  Sen.  John   Coghill  at  



8:11:10-8:11:42, Hearing on S.B. 49 Before the House Fin. Comm., 28th Leg., 2d Sess.   

(Feb. 25, 2014).  



          51        Dr. John Thorp is an obstetrician who practices in the area of fetal medicine  



and high risk obstetrics.  



          52  

                                                                                                   

                    Testimony  of  Dr.  John  Thorp,  at  2:19:41-2:20:56,  Hearing  on  S.B.  49  

                                                                                                                   

Before the Sen. Jud. Comm., 28th Leg., 1st Sess. (Feb. 27, 2013) (hereinafter Dr. Thorp  

Testimony).  



          53        Id. at 2:21:10-2:21:34.  



          54        Id. at 2:19:41-2:20:56.  



                                                             -17-                                                        7334
  


----------------------- Page 18-----------------------

                                                                                 55  

based on all the information available to the doctor.                                This rejection suggests the list of         



conditions  was  meant  to  restrict  physicians'  discretion  and  that  this  restriction  was  



important to the legislature's intent.  



                                                                                           

                     The statute's list of conditions in subsection (b)(4) includes a final catch-all  



provision that reads, "another physical disorder, physical injury, or physical illness,  



                                                                                                            

including a life-endangering physical condition caused by or arising from the pregnancy  



                                                                                  

that places the woman in danger of death or major bodily impairment if an abortion is  

                         56   The State argues that this catch-all provision broadens the permissive  

not performed."                                                                                                    



scope of the statute.  Because the phrase "another physical disorder, physical injury, or  

                     

physical illness" contains no severity requirement,57 this portion of the provision could,  

                                                                                                                



by itself, be interpreted to broaden the scope of the covered conditions.  Indeed, a State  

                                                              



medical expert testified that he saw this provision as "a barn door" that provides "a large  

                                                         



opening" for doctors to receive payment for abortions.  



                     But  the  language  immediately  following  that  phrase  explains  what  is  



                                                       

required  for  coverage  under  this  provision:    "a  life-endangering  physical  condition  



                                                                                                                             

caused by or arising from the pregnancy that places the woman in danger of death or  



                                                                                             58  

                                                                                                 This qualifying language  

major bodily impairment if an abortion is not performed." 



emphasizes  the  severity  of  the  conditions  intended  to  be  covered  by  the  catch-all  



provision.  The physical condition must not only be "life-endangering," but it must also,  

                                                                                  



somewhat  redundantly,  "place[]  the  woman  in  danger  of  death  or  major  bodily  



           55        2013 Senate Journal 1074-75.  



           56        AS 47.07.068(b)(4)(B)(xxii).  



           57        Id.  



           58        AS 47.07.068(b)(4)(B)(xxii).  



                                                                 -18-                                                            7334
  


----------------------- Page 19-----------------------

                    59  

                                                                                     

impairment."            This duplicative reference to the danger of death, as well as the fact that  



                                                                                                                            

the language of the catch-all provision almost exactly mirrors the current language of the  



                             60  

                                                                                             

Hyde Amendment,                 indicates how serious a condition must be to qualify for coverage  



under the catch-all provision.  



                                                                                                                          

                    The  meaning  of  the  catch-all  provision  is  also  shaped  by  the  list  of  



conditions preceding it.  Physicians for both parties testified that these conditions are  



serious and, for some, life-threatening.  Under the interpretive canon ejusdem generis,  



                         

when a general term follows specific terms, the general term "will be interpreted in light  



                                                                                                                          61 

                                                                                                                             The  

of the characteristics of the specific terms, absent clear indication to the contrary." 



specific terms here are serious conditions that can be life-threatening, so a non-listed  



                                                                                                     

condition  must  be  similarly  dangerous  to  qualify  for  coverage  under  the  catch-all  



          59        Id.  



          60        The 2014 version of the federal Hyde Amendment provided that federal  



funds could not be used for abortion coverage unless:  



                    the pregnancy is the result of an act of rape or incest; or . . .  

                    a woman suffers from a physical disorder, physical injury, or  

                                                                                     

                    physical   illness,   including   a   life-endangering   physical  

                    condition caused by or arising from the pregnancy itself, that  

                                                                   

                    would, as certified by a physician, place the woman in danger  

                                                                         

                    of death unless an abortion is performed.  



Consolidated Appropriations Act, 2014, Pub. L. No. 113-76,  506-507, 128 Stat. 409  

                                                                                                                

(2014).   



          61  

                                                                      

                     See City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 459  

                                                   

(Alaska 2006) (quoting  West v. Umialik Ins. Co., 8 P.3d 1135, 1141(Alaska 2000));  

ejusdem generis, B                                                                                  

                             LACK 'S LAW DICTIONARY (10th ed. 2014) ("A canon of construction  

                                                                   

holding that when a general word or phrase follows a list of specifics, the general word  

                                                             

or phrase will be interpreted to include only items of the same class as those listed.").  



                                                              -19-                                                         7334
  


----------------------- Page 20-----------------------

provision.  We therefore conclude that the catch-all provision does not meaningfully  

expand the permissive scope of the statute.62  



                            b.        The meaning of "threat of serious risk"  



                                                                         

                   The statute provides that a "medically necessary abortion" is one that "must  



                                                                         

be performed to avoid a threat of serious risk to the life or physical health" of a pregnant  

           63  The statute defines "serious risk to the life or physical health" in great detail,64  

woman.                                                       



but the precise meaning of "threat of serious risk" is contested by the parties.  The State  

                                                                



asserts  that  the  language  significantly  attenuates  the  statute's  severity  because  both  

                                                         



"threat" and "risk" entail probabilities:  a woman is not required to face a "serious risk  

                                                                       



to [her] life or physical health" to qualify for Medicaid funding; she is merely required  



                                    

to face a  threat  of such  risk.  Planned Parenthood argues that, because all pregnant  



women face an elevated health risk, the State's reading would cover all pregnant women  



and thereby render the rest of the statute superfluous.  



                   "Threat  of  serious  risk"  is  not  an  expression  with  a  recognized  legal  



                                                                                  65  

                                                                                        In  the  absence  of  prior  

meaning  in  Alaska  or  elsewhere  in  the  United  States. 



         62        The dissent's argument at page 6 that we should elevate the catch-all phrase  



"by itself" in order to uphold the statute disregards the long-established legal rules that  

                                                                                                              

must govern our analysis.  



         63        AS 47.07.068(b)(3).  



         64        AS 47.07.068(b)(4).  



         65        This expression occurs in several statutory provisions creating medical  



emergency exceptions to laws about abortion or about prescription of opioids to minors.  

                                                                                                  

See     OHIO      REV .     CODE       ANN .          2919.12(C)(2),           2919.121(D),          3701.791(A),  

3719.061(A)(1)(b) (West 2016); 35 P                                                                   

                                                     A . STAT . AND  CONS . STAT . ANN .  52A01 (West   

2016).  Although the phrase has been quoted twice in our abortion jurisprudence, neither  

we nor any other court have construed its meaning.  See Planned Parenthood 2016, 375  

                                                           

P.3d 1122, 1159 n.18 (Alaska 2016) (Stowers, J., dissenting);   Planned Parenthood  

                                                                                                       (continued...)  



                                                          -20-                                                     7334
  


----------------------- Page 21-----------------------

interpretations of this language, its meaning must be established by the text and context  



of the statute.  



                                                                                                    

                  "Risk" can mean "[t]he possibility of suffering harm or loss; danger" or "[a]  

factor,  thing,  element,  or  course  involving  uncertain  danger"66                        -  for  example,  



"Professional snowboarders take many risks."  It can also mean, in a more statistical  

sense,  "chance  of  loss"  or  "degree  of  probability  of  such  loss"67   -  for  example,  



"Bicycling without a helmet entails a risk of head injury."  Used alone, "risk" tends to  



encompass the combination of probability and hazard, leaving the specific hazards to  



                                                                                          

context and the reader's imagination.  But when connected to an explicit hazard ("risk  



of ____"), "risk" generally means probability.  



                  Although AS 47.07.068(b)(3)'s reference to "serious risk to the life or  



physical health of a woman" uses "risk" alone, and not as part of the phrase "risk of  



                                                                                      

____," the next section, (b)(4), goes on to define "serious risk" to mean "serious risk . . .  



                                                                                     68  

                                                                                         In this context, "risk"  

of . . . death[] [or] . . . impairment of a major bodily function." 



is most naturally read as the probability of the specified harm.  



                  Like "risk," "threat" may connote two slightly different concepts.  The  



                                                                                           

American Heritage Dictionary defines "threat" as "[a]n indication of impending danger  



         65       (...continued)  



2007, 171 P.3d 577, 580 n.7 (Alaska 2007).  



         66       THE AMERICAN  HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1514  



(5th ed. 2016).  



         67       Id.  



         68       AS 47.07.068(b)(4) (emphasis added).  



                                                        -21-                                                   7334
  


----------------------- Page 22-----------------------

              69  

                                                                                                            

or harm."          The expression "threat of ____" may be read in two ways.  One emphasizes  



                                                                                       

the sense of "threat" as hazard:  we might read "a threat of flooding" as an impending  



                                                                                                 

hazard consisting of flooding.  The other emphasizes the sense of "threat" as relatively  



high probability:  "a threat of frost overnight" implies a reasonable likelihood of frost.  



                                            

                    In the context of the statute, only the first sense of the word "threat" is  



appropriate.  As we have explained, "risk" as used in the statute must mean probability.  



If  "threat"  also  meant  probability,  then  the  statute's  "threat  of  serious  risk  .  .  .  



                                                                                                                   

of . . . death[] or impairment" would mean "probability of serious probability . . . of death  



                             70  

                                                                           

or . . . impairment."            As the State would have us read the statutory text, this multiplying  



                                                                                                                              

of  probabilities  would  mean  that  the  statute  covers  abortions  even  when  there  is  a  



                                                             

relatively low absolute risk of serious harm, as long as the doctor has an articulable  



medical reason for believing the woman faces a greater degree of risk than normal.  The  



                                                                                          

statute's text, however, provides no reason to draw the line at "higher than normal risk."  



Because  all  pregnant  women  face  some  risk  of  pregnancy-induced  conditions  like  



preeclampsia, the statute would sanction funding for all abortions if read to include such  



                                              

an attenuated health risk.  But such an interpretation would render the limiting language  

and list of conditions in subsection (b)(4) superfluous71 and is not supported by the  



                                             

available legislative history.  There is no indication in the legislative record that "threat  



          69        THE AMERICAN  HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1813  



(5th ed. 2016).  



          70        AS 47.07.068(b)(3)-(4).  



          71        See Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska  



1999) ("We . . . presume 'that the legislature intended every word, sentence, or provision  

                                              

of a statute to have some purpose, force, and effect, and that no words or provisions are  

                                                                                            

superfluous.' " (quoting Rydwell v. Anchorage Sch. Dist. , 864 P.2d 526, 530-31 (Alaska  

                                                                                       

1993))).  



                                                              -22-                                                         7334
  


----------------------- Page 23-----------------------

of serious risk" was meant to play the attenuating role the State has proposed.  If the  

     



legislature had intended "threat of serious risk" to significantly reduce the severity of the  

                                                                                                       



statute's restrictions, we would expect to see some discussion of that phrasing and its  



                                                                        

effect somewhere in the legislative history.  But the legislative record contains no such  



discussion.  



                                                                                        

                    We therefore construe "threat of serious risk [of death, or of impairment  



                                                                                             

from a listed harm]" to mean "impending hazard consisting of a serious probability [of  

                                                                 72   This interpretation does not require that  

                                                                                                          

death, or of impairment from a listed harm]."  



a woman suffer one of the listed conditions for her abortion to be covered by Medicaid,  

                                        



but it also does not mean that suffering from a listed condition is sufficient.  



                             c.	       Coverage  of  mental  health  conditions  and  lethal  fetal  

                                                                         

                                       anomalies  



                    The  statute  does  not  explicitly  refer  to  mental  health  or  include  any  



                                                                       73  

psychological disorders in its list of conditions.                         The catch-all provision specifically  

                       

limits its coverage to "another physical  disorder, physical  injury, or physical  illness."74  



But a psychological condition that entails a serious risk of death could conceivably be  



covered  by  subsection  (b)(4)(A),  which  permits  coverage  for  "serious  risk  to  the  



pregnant woman . . . of death" without the caveat that the risk of death must be presented  

                                                                              



by a physical condition.   



                    At  trial  the  State  argued  that  this  provision  of  the  statute  could  be  



                                          

interpreted to cover "only a very extreme mental health condition" where a woman was  



          72        This  is  essentially  what  the  superior  court  did  when  it  resolved  the  



interpretive challenge by construing the phrase to mean "threat [consisting] of a serious  

                                                                                             

risk." (Alteration in original).  



          73        See AS 47.07.068(b)(4)(B).  



          74        AS 47.07.068(b)(4)(B)(xxii) (emphasis added).  



                                                             -23-	                                                      7334
  


----------------------- Page 24-----------------------

suffering from "suicidal ideation where there was a risk of death."  We agree.  The  



statute  cannot  be  construed  to  cover  any  other  mental  health  condition,  or  to  cover  



women with mental health conditions like bipolar disorder whose medications pose a risk  



                 75  

to the fetus.        



                                                                                          

                    The legislative history indicates that lawmakers intended to exclude mental  



                                                        

health  from  the  statutory  definition  of  medical  necessity.    The  House  rejected  an  



amendment  that  would  have  recognized  medical  necessity  where  "a  psychiatric  



disorder . . . places the woman in imminent danger of medical impairment of a major  



                         76  

                                                                    

bodily function."            The bill's Senate sponsor, when asked why bipolar disorder was not  



                                                                                                                

covered by the bill, replied that he believed, based on medical testimony and expert  



                                                                                                   

advice, that "most psychological conditions were not a threat to the health of a pregnant  

woman."77  



          75        There are numerous conditions that may be treated with medications that   



can affect or disturb the development of a fetus.  We discussed bipolar disorder as an  

example of such a mental health condition in our Planned Parenthood 2001 decision.  

                                                                                        

28 P.3d 904, 907 (Alaska 2001) ("[W]omen who suffer from conditions such as . . .  

              

bipolar disorder face a particularly brutal dilemma as a result [of the] regulation -  

                                                                                                     

medication to control their own . . . 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.").  



          76        2014 House Journal 2337.  



          77  

                                                                                                                    

                    Statement of Sen. John Coghill at 8:24:44-8:26:20, Hearing on S.B. 49  

Before House Fin. Comm., 28th Leg., 2d Sess. (Feb. 25, 2014).  



                                                             -24-                                                       7334
  


----------------------- Page 25-----------------------

                   The statute also does not cover abortions when the fetus suffers from a fatal  



             78                   79 

anomaly.          The statute        states that an abortion must be necessary to avoid the risk of  

                                                                                80   The text does not leave room  

harm to the life or physical health of a pregnant woman.  

                                                                                           



to consider an abortion medically necessary based on the suffering of the fetus.  The  

                                                                   



bill's sponsor indicated that he believed fatal fetal abnormalities would be covered under  

                                         



                                         81  

the bill's catch-all provision.               But this statement, unsupported by other evidence from  

                                                                                                          

the legislative history, is not sufficient to overcome the plain meaning of the statute.82  



The statute therefore cannot reasonably be interpreted to cover abortions in the case of  

                                                                                                           



fatal fetal anomalies.  



                                                                                                   

                   The State urges us to apply the canon of constitutional avoidance, arguing  



that the superior court improperly ignored a reasonable interpretation of the statute that  



                           

would have been constitutional.  The canon of constitutional avoidance requires us to  



choose       the    constitutionally         permissible         interpretation        from      among        reasonable  



                                                        83 

                                                                                                                    

interpretations of an ambiguous statute.                    But the legislative history makes clear that the  



                                                                           

State's interpretation, which the dissent embraces, is not reasonable in this case.  The  



                                                                                                  

statute's text is ambiguous because "threat of a serious risk" is not defined.  We do not  



          78       Trial   testimony   referred   to    examples   of   such   anomalies,   including  



anencephaly, a neural tube defect in which there is no covering for the brain, and renal  

agenesis when the fetus has no kidneys.  



          79       As well as the certificate required by the regulation.  



          80       See AS 47.07.068(b)(3); 7 AAC 160.900(d)(30).  



          81       Statement of Sen.   John   Coghill at 9:13:49-9:14:11, Hearing on S.B. 49  



Before the House Fin. Comm., 28th Leg., 1st Sess. (Apr. 1, 2013).  



          82       See State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016).  



          83       See Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 388 (Alaska  



2013).  



                                                            -25-                                                      7334
  


----------------------- Page 26-----------------------

                                                                                                              

find the catch-all provision meaningfully expands the statute's coverage.  Thus we read  



                                                                                                

"threat of a serious risk" to mean an impending hazard consisting of a serious probability  



of death, or of impairment because of a listed harm.  



                    2.        The text of the regulation  



                    Although the regulation is structured somewhat differently from the statute,  



                                                                                      84  

                                                                                                               

we apply similar analytical methods to interpret its text.                                As we  have  discussed, a  



woman must suffer a threat of serious risk of death or impairment of a major bodily  



function  caused  by  one  of  the  listed  medical  conditions  in  order  to  be  eligible  for  



                                                                                      85  

Medicaid funding for an abortion according to the statute.                                



                                                                                                        

                    The regulation introduces its list of medical conditions differently.  The  



                                                                                       

regulation requires a doctor to certify that an abortion "was medically necessary to avoid  



                                     

a  threat  of  serious  risk  to  the  physical  health  of  a  woman  from  continuation  of  her  



                                 

pregnancy due to the impairment of a major bodily function including but not limited to  



                                                  86  

                                                      Pursuant to the regulation each listed condition is  

one of the following" conditions.                                                                              



itself an "impairment of a major bodily function" or a "serious risk to the physical health  

             



          84        See  Pease-Madore v. State , 414 P.3d 671, 675 (Alaska 2018);                                 Wilson v.  



State, Dep't. of Corr., 127 P.3d 826, 829 (Alaska 2006).  Though we apply similar  

methods to interpret the regulation and the statute, the regulation is not entitled to the  

                                                            

same presumption of constitutionality.  See State, Dep't of Revenue v. Andrade, 23 P.3d  

                                                                          

58, 71 (Alaska 2001) (explaining the canon of constitutional avoidance "recognizes that  

the legislature, like the courts, is pledged to support the state and federal constitutions  

and that the courts, therefore, should presume that the legislature sought to act within  

                                                                                                   

constitutional limits"); Planned Parenthood 2001 , 28 P.3d 904, 913 (Alaska 2001).  



          85        AS 47.07.068(b)(4)(B)(xxii).  



          86        See 7 AAC 160.900(d)(30) (adopting the revised Certificate to Request  



Funds for Abortion).  



                                                             -26-                                                        7334
  


----------------------- Page 27-----------------------

                        87  

of the woman."              This contrasts with the statute, under which suffering from such a  



condition  does  not  suffice  unless  there  is  also  a  threat  of  serious  risk  of  death  or  



                                                                                                    88  

                                                                                                         A serious risk of  

impairment of a major bodily function caused by the pregnancy. 



acquiring  any  of  the  listed  conditions  is  therefore  sufficient  for  coverage  under  the  



regulation.  However, as with the statute, the risk posed to a woman's health must be  



greater  than  the  baseline  health  risk  inherent  in  pregnancy  -  otherwise  this  entire  



portion of the regulation would be surplusage.  



                                                                            

                    A second difference from the statute is the regulation's catch-all provision,  



                                                                                             

which covers "another physical disorder, physical injury, [or] physical illness, including  

                                                                          89  The regulation does not include the  

                                                                               

a physical condition arising from the pregnancy." 



statute's additional language emphasizing the danger of death; it simply indicates that  

                                                                                                    



physical conditions caused by pregnancy fall under the catch-all provision.  But like the  

                                                                               



statute, the preceding listed conditions constrain the meaning of the catch-all under the  

                                                                                                        



canon of ejusdem generis.  Considering the regulation's inclusion of the listed conditions  

                                                                                                            



in the definition of "serious risk to the physical health of the woman" with the catch-all  

                          



provision demonstrates that the regulation is somewhat less restrictive than the statute.  

                                                                                      



                    A third difference is the regulation's treatment of mental health conditions.  

                                                                                               



One of the conditions listed in the regulation is "a psychiatric disorder that places the  

                                                                                                                     



woman in imminent danger of medical impairment of a major bodily function if an  



                                                                             

abortion is not performed."  Although the statute's coverage of mental health conditions  



                                                                                                                  

is effectively limited to suicide, the regulation appears to cover imminent and serious  



                                                           

self-harm short of suicide.  But as one testifying physician noted, these cases "represent  



          87        Id .  



          88        See AS 47.07.068.  



          89        See 7 AAC 160.900(d)(30).  



                                                              -27-                                                         7334
  


----------------------- Page 28-----------------------

a  tiny  fraction  of  patients  with  psychiatric  symptoms."    The  regulation  thus  covers  



                                                                         

psychiatric disorders to a very limited extent and does not significantly expand coverage  



beyond the statute.  



                                                                         

                  Overall the regulation is less restrictive than the statute in its requirement  



that  the  pregnancy  pose  a  serious  risk  to  the  physical  health  of  the  woman.    The  



regulation has a slightly broader catch-all provision and it permits coverage for more  



                    

mental health conditions.  But these differences are not sufficiently less restrictive to  

meaningfully differentiate coverage under the statute and the regulation.90  



                  Having  determined  the  statute  and  regulation's  meanings,  we  must  



                                                                     

determine whether they are permissible under the Alaska Constitution.  To do this, we  



                                                                 

assess whether these measures result in unequal treatment of different classes of women,  



identify  the  constitutional  interest  at  stake,  the  State's  interest  in  adopting  these  



measures, and the method the State has employed to address its interest.  



         B.       Equal Protection Under The Alaska Constitution  



                  "[A] party raising a constitutional challenge to a statute bears the burden  



of demonstrating the constitutional violation.  A presumption of constitutionality applies,  



                                                                         91  

and doubts are resolved in favor of constitutionality."                      "But a statute infringing on a  



         90       We do not address the issue of whether the passage of the statute impliedly  



repealed the regulation.  This was raised below but not addressed on appeal, so we  

therefore do not address it.  But we note that to the extent that the regulation expands  

coverage and exceeds the agency's statutory authority, it is invalid.  See Muller v. BP  

Exploration (Alaska) Inc., 923 P.2d 783, 792 n.9 (Alaska 1996); Powers v. State, Public  

Emp.'s Ret. Bd. , 757 P.2d 65, 67 (Alaska 1988) ("[R]egulations made by an agency  

which exceed its statutory authority are invalid.").  



         91       Harrod v. State, Dep't of Revenue , 255 P.3d 991, 1000-01 (Alaska 2011)  



(quoting State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001)).  



                                                       -28-                                                   7334
  


----------------------- Page 29-----------------------

constitutionally protected right deserves close attention,"92 and "the State bears a high  



burden to justify" such laws.93  



                    When  equal  protection  claims  are  raised,  the  question  is  

                                                                     

                    whether two groups of people who are treated differently are  

                                                                          

                    similarly situated and therefore are entitled to equal treatment  

                                                                    

                    under  the  constitution.    In  order  to  determine  whether  

                    differently treated groups are similarly situated, we look to  

                                                                                                    [94] 

                    the state's reasons for treating the groups differently.  



                                                                                                 95  

                       

We  begin  by  determining  the  appropriate  comparison  classes.                                      We  then  evaluate  



                                                                                          

whether "the challenged law has a discriminatory purpose or is facially discriminatory -  



                                                                     96 

                                                                         Our ultimate determination of whether  

i.e., whether the classes are treated unequally." 



                                                                                  

the classes are similarly situated is a legal question:  whether, "[u]nder the applicable  



                                 

scrutiny level . . . the stated rationales for the [law] justify discriminating between" the  

comparison classes.97  



          92        Planned Parenthood 2016 , 375 P.3d 1122, 1133 (Alaska 2016) (citing   



Planned Parenthood 2001 , 28 P.3d 904, 912 (Alaska 2001); Commercial Fisheries Entry  

Comm'n v. Apokedak, 606 P.2d 1255, 1261 (Alaska 1980); Planned Parenthood of Cent.  

N.J. v. Farmer, 762 A.2d 620, 633 (N.J. 2000)).  



          93        Planned Parenthood 2001 , 28 P.3d at 912.  



          94  

                                                                                

                    Planned Parenthood 2016 , 375 P.3d at 1135 (emphasis omitted) (quoting  

Pub. Emps.' Ret. Sys. v. Gallant , 153 P.3d 346, 349 (Alaska 2007)).  



          95        Id. at 1135.  



          96        Id.  



          97        Id. at 1136.  



                                                              -29-                                                         7334
  


----------------------- Page 30-----------------------

                   Planned  Parenthood   has  brought  a  facial  challenge  to  the  statute  and  

                                                                                98  Against such challenges, "we  

regulation, seeking to invalidate them in toto, as enacted.                          



will uphold the statute even if it might occasionally create constitutional problems in its  

                                          

application, as long as it 'has a plainly legitimate sweep.' "99  



                    1.       Comparison classes  



                   The statute and regulation at issue impose different eligibility criteria on  

                                                           



                                                                                                       100  

pregnant women based on their choice whether to obtain an abortion.                                         In Planned  

                           



Parenthood 2001 , we explained that  



                   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  



          98       See State v. Am. Civil Liberties Union of Alaska                   , 204 P.3d 364, 372 (Alaska  



2009).  



          99       Planned Parenthood 2016 , 375 P.3d at 1133 (quoting Planned Parenthood  



2007, 171 P.3d 577, 581 (Alaska 2007)).  The State argues that a facial challenge is  

                                                                                          

inappropriate and that we should defer decision on the statute's overall constitutionality  

                                                                                            

until a patient or provider brings an  "as-applied" challenge against an actual denial of  

                                                                                        

payment.  But Planned Parenthood's argument is that the statute is unconstitutional  

because  it  creates  a  discriminatory  standard,  not  because  it  would  deny  funding  in  

                                                                     

particular instances where it would violate the constitution to do so.  If the standard is  

                                                                     

discriminatory, there is no "sweep" of circumstances in which denial of payment under  

the  statute  and  regulation  is  "plainly  legitimate"  or  without  similar  constitutional  

                                                                                              

concerns; in such circumstances "every litigant with standing would necessarily succeed  

in challenging the statute based upon [the] same reasoning."  Scott A. Keller & Misha  

                       

Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes In Toto ,  

                                                                                                                   

98 VA .   L.   REV .   301, 326 (2012).  Planned Parenthood's facial challenge is therefore  

appropriate.  



          100      See AS 47.07.068; 7 AAC 160.900(d)(30).  



                                                            -30-                                                      7334
  


----------------------- Page 31-----------------------

                                                                                                 [101]  

                   under the same terms as any similarly situated person.                               



The most appropriate comparison classes are therefore Medicaid-eligible women who  



                         

seek funding for abortion and Medicaid-eligible women who seek funding for natal and  



prenatal care.  



                   2.        Unequal treatment of comparison classes  



                   We employ a three-step equal protection analysis:  



                   First, it must be determined at the outset what weight should  

                   be  afforded  the  constitutional  interest  impaired  by  the  

                                                    

                   challenged enactment . . . .  Depending upon the primacy of  

                   the interest involved, the state will have a greater or lesser  

                   burden in justifying its legislation.  



                   Second, an examination must be undertaken of the purposes  

                   served by a challenged statute.  Depending on the level of  

                   review determined, the state may be required to show only  

                                                                                           

                   that  its  objectives  were  legitimate,  at  the  low  end  of  the  

                   continuum, or, at the high end of the scale, that the legislation  

                                                                                

                   was motivated by a compelling state interest.  



                   Third, an evaluation of the state's interest in the particular  

                                   

                   means  employed  to  further  its  goals  must  be  undertaken.  

                   Once again, the state's burden will differ in accordance with  

                                                                

                   the determination of the level of scrutiny under the first stage  

                                                                  

                   of analysis.  At the low end of the sliding scale, we have held  

                                                           

                   that  a  substantial  relationship  between  means  and  ends  is  

                   constitutionally adequate.  At the higher end of the scale, the  

                                                                              



          101      28 P.3d at 913.  In that decision, we also compared the State's treatment of  



women seeking abortions with its treatment of other Medicaid patients in general.  Id.  

at  908  ("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.").  But the more relevant comparison for the purposes of  

our equal protection analysis in this case is the State's different treatment of women  

depending on their decision whether to carry their pregnancy to term.  This is because,  

as we explain below, the State's different treatment of these two groups has a material  

     

impact on the exercise of their fundamental right of reproductive choice.  



                                                           -31-                                                      7334
  


----------------------- Page 32-----------------------

                   fit  between  means  and  ends  must  be  much  closer.    If  the  

                                                                    

                   purpose can be accomplished by a less restrictive alternative,  

                   the classification will be invalidated.[102] 



                             a.        The constitutional interest at stake  



                   In  the  first  step  of  our  analysis,  we  "evaluat[e]  the  importance  of  the  



personal  right  infringed  upon  to  determine  the  State's  burden  in  justifying  its  



                                  103  

differential"  treatment.                A  statute  or  regulation  that  burdens  the  exercise  of  a  



                                                                                                   104 

                                                                                                        and "it has long  

constitutional right "is subject to the most searching judicial scrutiny," 



been  established  that  a  law  burdening  the  fundamental  right  of  reproductive  choice  



                                     105  

demands strict scrutiny."                 The challenged legislation need not expressly forbid the  



                                                   

exercise of the right; we also apply strict scrutiny "where the government, by selectively  



denying a benefit to those who exercise a constitutional right, effectively deters the  



                                  106  

                                                                  

exercise  of  that  right."              Such  scrutiny  is  particularly  called  for  where,  as  in  this  



instance, the rejection of one option inevitably requires the other.  



          102      Planned  Parenthood  2016 ,  375   P.3d   at  1137   (alteration  in  original)  



(quoting Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984)).  



          103      Id.  



          104  

                                                                                        

                   See Planned Parenthood 2001, 28 P.3d at 909 ("The regulation at issue in  

                                                                     

this case affects the exercise of a constitutional right, the right to reproductive freedom.  

                                                                                                             

Therefore, the regulation is subject to the most searching judicial scrutiny, often called  

'strict scrutiny.' ") (footnote omitted).  



          105      Planned   Parenthood   2016 ,   375   P.3d   at   1137-38   (citing   Planned  



Parenthood  2001 ,  28  P.3d  at  909).    The  State  argues  that  our  holding  in  Planned  

Parenthood 2001 that "a law burdening the fundamental right of reproductive choice  

demands  strict  scrutiny"  was  dicta.    But  our  strict  scrutiny  analysis  in  Planned  

Parenthood 2001 was the primary reasoning for our decision, and we have treated it as  

                                                                                           

authoritative.  See id. (citing Planned Parenthood 2001 , 28 P.3d at 909).  



          106      Planned Parenthood 2001 , 28 P.3d at 909.  



                                                            -32-                                                      7334
  


----------------------- Page 33-----------------------

                   Planned Parenthood argues that strict scrutiny applies because, by creating  



a unique, more onerous, and abortion-specific definition of medical necessity that departs  



                                              

from the physician-discretion  standard applied to other Medicaid services, the State  



                                                                                                           107 

                                                                                                                The State  

"selectively den[ies] a benefit to those who exercise a constitutional right." 



                                     

argues that the measures do not selectively deny a benefit because the State will provide  



payment for abortion "so long as [the procedure] meets the across-the-board requirement  



                                                                                                                          108  

                                                                                  

for all Medicaid services - that the service is needed to protect the patient's health." 



                                                                            

                   "[W]e look to the real-world effects of government action to determine the  



                                                                         109  

appropriate  level  of  equal  protection  scrutiny."                           Strict  scrutiny  applies  to  the  



challenged measures because they discriminate between classes of pregnant women  



based on their "choice whether or when to bear children" in a manner that deters the free  



                                  110  

exercise of that choice.               The State argues that Medicaid funding for many types of  



medical  services  is  similarly  restricted,  so  AS  47.07.068  does  not  uniquely  burden  



women's  exercise  of  the  choice  to  seek  an  abortion.    But  the  State's  funding  of  



healthcare services unrelated to natal and prenatal care does not dictate our analysis here,  



          107      See id.  



          108      We      held     in   Planned        Parenthood          2001      that    the    government          "is  



constitutionally bound to apply neutral criteria in allocating health care benefits" and   

referred to existing restrictions related to "medical necessity, cost and feasibility" as  

examples of "politically neutral criteria."  Id. at 910.  But the State's argument assumes  

                                                                      

that medical necessity is inherently a neutral criterion.  Our holding was that neutral  

                                                                                                             

criteria must underlie the State's funding restrictions, not that any definition of medical  

                                      

necessity is per se neutral.  See id.  If that were so, the legislature could have overruled  

                                                                          

Planned Parenthood 2001 simply by reenacting the invalidated regulation in the form  

of a definition of medical necessity.  



          109      Id.  



          110      See Valley Hosp. Ass'n. v. Mat-Su Coal. for Choice, 948 P.2d 963, 968  



(Alaska 1997).  



                                                            -33-                                                      7334
  


----------------------- Page 34-----------------------

                                                                                                         

because the State's subsidy of other forms of treatment does not influence the exercise  



of a pregnant woman's fundamental right to choose whether to keep or terminate her  



                     111  

pregnancy. 



                                                                                                                                   

                         Dissenting in the 1980 United States Supreme Court case Harris v. McRae ,  



Justice Brennan explained how disparate government subsidies for medical expenses  



associated with childbirth and abortion affect fundamental rights:  



                                                      

                         A poor woman in the early stages of pregnancy confronts two  

                                                                                        

                         alternatives:  she may elect either to carry the fetus to term or  

                                                                                                                         

                         to have an abortion.  In the abstract, of course, this choice is  

                         hers  alone,  and  the  Court  rightly  observes  that  the  Hyde  

                                                                                                                 

                         Amendment "places no governmental obstacle in the path of  

                                                                                                                           

                         a woman who chooses to terminate her pregnancy."  But the  

                                                                                                         

                         reality  of  the  situation  is  that  the  Hyde  Amendment  has  

                         effectively removed this choice from the indigent woman's  

                         hands.    By  funding  all  of  the  expenses  associated  with  

                         childbirth and none of the expenses incurred in terminating  



             111         The challenged statute and regulation are uniquely severe in comparison   



to these other Medicaid restrictions.                                Perhaps the only other Medicaid service similarly             

restricted is waiver services for "children with complex medical conditions," who must     

have "a severe, chronic physical condition that results in a prolonged dependency on   

medical   care  or  technology   to   maintain   health   and   well-being"  and  who  must  

"experience[] periods of acute exacerbation or life-threatening conditions" requiring  

either "frequent or life-saving administration of specialized treatment or . . . mechanical  

                                                                                          

support  devices."    7  AAC  130.205(d)(1)(C)-(D),  (F)  (am.  7/1/2013).    Less  severe  

restrictions  apply  to  certain  other  services.                                      For  example,  hysterectomies  must  be  

                                                                                                                                                  

"performed for medical reasons" and not purely for sterilization.  7 AAC 110.420(a)(2),  

                                                                             

(b) (eff. 2/1/2010).  And payment for cosmetic surgery is prohibited unless "required"  

for  "repair  of  an  injury,"  "improvement  of  the  functioning  of  a  malformed  body  

                                                                                 

member,"  or  "correction  of  a  visible  disfigurement  that  would  materially  affect  the  

recipient's acceptance in society." 7 AAC 105.110(4)(A)-(C) (am. 7/1/2013). But most  

                                                                                                                                                  

Medicaid services are not restricted in this way, and DHSS noted that its fiscal agent  

"generally presumes that a physician provided a medically necessary service."  



                                                                             -34-                                                                       7334
  


----------------------- Page 35-----------------------

                   pregnancy, the Government literally makes an offer that the  

                   indigent woman cannot afford to refuse.[112]  



In Planned Parenthood 2001 113 we expressed our own disagreement with the Court's  



decision in Harris , and Justice Brennan's logic implicitly underlay our decision:  the  



                                                                               

State  burdens  the  exercise  of  a  fundamental  right  for  indigent  people  when  it  only  

subsidizes the inevitable alternative.114  



                                                                  

                   Virtually all medical services for indigent Alaskan women who choose to  



                                                  

give  birth  fall  under  Medicaid's  omnibus  definition  of  "medically  necessary"  as  

something  determined  "by  the  standards  of  practice  applicable  to  the  provider."115  



                                                                                           

Expectant mothers generally receive state funding automatically when a doctor submits  



the bill.  Yet an indigent woman seeking state funding for an abortion under the new  



measures cannot obtain coverage unless a doctor certifies that her "abortion must be  



                                                                                                             116  

                                                                                                                  This  

performed to avoid a threat  of  serious risk to [her] life or physical health." 



difference  results  in  the  coercive  effect  that  troubled  Justice  Brennan:    an  indigent  



             

woman whose condition falls outside the new, abortion-specific definition of medical  



                                                                                                    

necessity will discover that she alone must pay for the medical costs associated with  



         112       448 U.S. 297, 333-34 (1980) (Brennan, J., dissenting) (citation omitted)  



(quoting Harris , 448 U.S. at 315).  



         113       28 P.3d at 911 n.52.  



         114       Several  other  state  courts  striking  down  Medicaid  abortion  funding  



restrictions on equal protection grounds have relied on similar logic as that expressed in  

                                                                         

Justice Brennan's dissent.  See, e.g., Comm. to Defend Reprod. Rights v. Myers, 625 P.2d  

779, 793 (Cal. 1981); Moe v. Sec'y of Admin. & Fin. , 417 N.E.2d 387, 402 (Mass. 1981);  

                                                                                                 

Women of State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 29 (Minn. 1995).  



         115       See 7 AAC 105.100(5).   



         116       AS 47.07.068(b)(3).  



                                                          -35-                                                    7334
  


----------------------- Page 36-----------------------

abortion - but if she chooses childbirth, the government will pay any bill that her doctor       

              117  Thus "the government, by selectively denying a benefit to those who exercise  

submits.                                                                                                     

a constitutional right, effectively deters the exercise of that right."118  



                                                                              

                      The State warns that application  of strict scrutiny to the measures here  



                                                                                                                

could endanger all Medicaid funding by subjecting all of the State's limits on Medicaid  



coverage to strict scrutiny based on the fundamental right "to make decisions about  



                                                                                 119  

                                                                                                                             

medical treatments for oneself or one's children."                                    We do not believe that it will have  



such a sweeping impact.  



                                        

                      Disparate restrictions on government funding for women based on their  



                                                               

choice of either abortion or childbirth deter the exercise of a fundamental right because  



pregnant women in that position are locked in a binary dilemma:  the rejection of one  



option  inevitably  entails  the  embrace  of  the  other.    Few  other  Medicaid  treatments  



present this dilemma.  For instance, Medicaid pays for tubal ligations and vasectomies  

with no special restrictions but will not pay for infertility or impotence services.120   The  



government in that situation arguably funds one exercise of a fundamental right and not  



                                                                          

the other, but it does not create a deterrent or incentive effect.  A woman denied funding  



for fertility treatment is not compelled to obtain a tubal ligation.  But biological reality  



                      

requires that a woman who cannot afford a medical abortion must carry her pregnancy  



                                            

to  term.    A  woman  who  cannot  afford  to  obtain  a  medical  abortion  is  also  legally  



                                                                                                       

prevented from obtaining an abortion otherwise.  Alaska law requires abortions to be  



           117        See Harris, 448 U.S. at 333-34 (Brennan, J., dissenting).  



           118        Planned Parenthood 2001 , 28 P.3d at 909.  



           119        Huffman v. State , 204 P.3d 339, 346 (Alaska 2009).  



           120        7 AAC 105.110(10), (11).  



                                                                    -36-                                                              7334
  


----------------------- Page 37-----------------------

performed by a licensed physician.121  



                                                                                           

                    Because we are unpersuaded that applying strict scrutiny to the statute and  



regulation before us would endanger all Medicaid funding, and because the constitutional  



                                            

issue at stake is fundamental, we apply strict scrutiny to both of the challenged measures.  



                             b.        The State's interest  



                                                                                                          

                    The State must show that the measures serve a compelling state interest in  



                                                                                             122  

                                                                                                  The State asserts an  

order for the statute and regulation to withstand strict scrutiny. 



                                                                                           

interest in limiting the provision of medical care to that which is "medically necessary,"  



                           

thereby ensuring the financial viability of the Medicaid program as a whole.  It argues  



                                                                                             

that "the feasibility of a program like Medicaid depends on the ability to set limits.  The  



                                                                                  

State could not afford, nor would the public tolerate, a Medicaid program that paid for  



                                                  

any medical service or treatment a Medicaid beneficiary wants."  Legislators' concern  



                                

for Medicaid's fiscal viability is generally supported by the record.  The Senate sponsor's  



staff  member  stated  that  one  impetus  behind  the  bill  was  the  Senator's  "reasonable  

                                                                                                                 123 and the  

belief" that Medicaid has been paying for non-medically necessary abortions, 

bill's House sponsor characterized the bill as a "fiscal bill."124  



                                                                                                               

                    But the legislative record contains no evidence that Medicaid had actually  



                                                                                                     

funded non-medically necessary abortions.  The Senate sponsor later acknowledged that  



          121       AS 18.16.010(a)(1).  



          122       See  Planned  Parenthood  2016,  375  P.3d  1122,  1138   (Alaska  2016);  



Planned Parenthood 2001 , 28 P.3d at 909.  



          123       Statement  of  Chad  Hutchinson,  Staff  Member  to  Sen.  John  Coghill  at  



1:38:27-1:38:38, Hearing on S.B. 49 Before the House Jud. Comm., 28th Leg., 1st Sess.  

                                       

(Mar. 29, 2013).  



          124  

                                                                                                        

                    Statement of Rep. Gabrielle LeDoux at 1:12:46-1:12:55, Hearing on H.B.  

173 Before the House Jud. Comm., 28th Leg., 1st Sess. (Mar. 29, 2013).  



                                                             -37-                                                       7334
  


----------------------- Page 38-----------------------

                                                                                                                                       125  

                                                                      

the legislature had not determined whether the bill would save the State any money. 



And DHSS's fiscal note regarding the proposed legislation stated that the Department  



                                                                                                                             126  

                                                                                                                                   This  

was unable to determine the bill's impact on expenditure due to a lack of data. 



                                                                                                 

lack of evidence about the bill's fiscal impact casts doubt on legislators' statements that  



                                                                                                                       

it was intended to resolve a fiscal problem.  If the State is arguing that it has a compelling  



                                                                           

interest in saving money, we have rejected cost savings alone as a legitimate state interest  



                         127  

                                                                               

to discriminate.               We assume without deciding that the State may have a compelling  



                                                                                      128  

                                                                                                 

interest in ensuring the financial viability of Medicaid,                                 but even assuming so does not  



change the outcome in this case.  



                                c.         The means employed to accomplish the State's interest  



                                                                                                                        

                     Under strict scrutiny we examine whether the means-to-end fit between the  



           125        Statement of Sen. John Coghill at 9:15:39-9:15:47, Hearing on S.B. 49  



Before the Sen. Fin. Comm., 28th Leg., 1st Sess. (Apr.1, 2013).  



           126       House Fin. Comm., DHSS Fiscal Note of S.B. 49, 28th Leg., 1st Sess.                           



(Feb. 28, 2014).  



           127       See State v. Schmidt, 323 P.3d 647, 663 (Alaska 2014) (explaining that,  

                                                                                        

even under minimum scrutiny, the State's legitimate interest in cost savings was not  

                                                    

sufficiently related to discriminatory classification because " 'cost savings alone are not  

sufficient government objectives under our equal protection analysis.' The government  

                                                                      

can  adequately . . . minimize cost without discriminating between similarly situated  

        

classes." (quoting Herrick's Aero-Auto-Aqua Repair Serv. v. State, Dep't of Transp. &  

                                                                                      

Pub. Facilities , 754 P.2d 1111, 1114 (Alaska 1988))).  



           128  

                                                                                        

                     See AS 47.07.010 ("It is equally a matter of public concern that providers  

                                                      

of [Medicaid] services . . . should operate honestly, responsibly, and in accordance with  

                                                                  

applicable laws and regulations in order to maintain the integrity and fiscal viability of  

the state's medical assistance program.");  U.S. v. Lee, 455 U.S. 252, 258-59 (1982)  

                                         

(holding that the federal government's "interest in assuring mandatory and continuous  

                                                                        

participation in and contribution to the social security system is very high" because such  

participation "is indispensable to the fiscal vitality of the social security system").  



                                                                  -38-                                                            7334
  


----------------------- Page 39-----------------------

State's purpose and the challenged measures is sufficiently close.129  Our equal protection  



analysis  does  not  ask  what  interests  might  justify  restricting  funding  for  abortion  



specifically, but what interests would justify treating abortion differently from childbirth  



                                                        

and other pregnancy care - the statute and regulation should be neither under-inclusive  



                           130  

nor over-inclusive.             The State bears the burden of proving "that  the  means it has  

chosen to advance [its] goals are well-fitted to the ends."131  



                   We have recognized that the State may limit Medicaid expenditures by  

                                                                                                  132  But the State's  

                                                                                                        

employing neutral criteria such as medical necessity to prioritize funds. 



argument about the fiscal implications of AS 47.07.068 and 7 AAC 160.900(d)(30) is  



unconvincing.  An abortion costs the State significantly less than a hospital delivery.  



Evidence at trial established that abortions range in cost from $650-$750 during the first  



trimester to $900-$1,000 during the second trimester.  In contrast the superior court  

                                                                                                                   133  If  

          

found that "[a] typical hospital delivery costs Medicaid approximately $12,000." 



the abortion funding restrictions divert a significant number of Medicaid-eligible women  

                                                                                        



toward childbirth and its additional expenses, as the State conceded similar restrictions  

                                                                      



          129      See Alaska Pac. Assurance Co., 687 P.2d at 270.  



          130      See Planned Parenthood 2016, 375 P.3d at 1139 ("If the means-to-end fit  



between the State's purpose and the Notification Law is not close  enough - if the  

Notification Law is under-inclusive or over-inclusive - then it will not survive strict  

                          

scrutiny." (citing State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983))).  



          131      Planned Parenthood 2001 , 28 P.3d 904, 909 (Alaska 2001).  



          132      See Planned Parenthood 2001, 28 P.3d at 910 (noting that the State may  



use criteria such as "expense, medical feasibility, or the necessity of particular services"  

                                                                      

in allocating healthcare benefits); Alaska Pac. Assurance Co. , 687 P.2d at 272.  



          133      Even accounting for the 50% matching subsidy that the federal government  

                                                                                           

provides for most Medicaid procedures other than abortion, pregnancy and delivery care  

                          

remains significantly more expensive to the State on average.  



                                                          -39-                                                     7334
  


----------------------- Page 40-----------------------

                                                       134 

would in Planned Parenthood 2001 ,                          then, as Planned Parenthood argues, the funding  



                                                                                            

restrictions will "undermine, rather than further, the State's interest in reducing costs."  



                                                           

                    Even if measures are not financially counterproductive in practice, they are  



                                                                                                    

an under-inclusive means of accomplishing the State's objectives.  The State claims there  



          

is no need to put similar restrictions on medical services offered to pregnant women  



                                                                                             

carrying to term because such services "almost always serve to protect the health of the  



                                                                   

woman or fetus."  But the State offers no support for this claim, and evidence in the  



                                                               

record supports the opposite conclusion.  A State expert testified that there are a number  



                                                                                                                 

of  elective  pregnancy-related  treatments  such  as  scheduled  Caesarean  sections  and  



inductions of labor "that mothers might request that . . . may not be in their best interests  



                                                                                                

medically in the long run."  And a Planned Parenthood expert witness testified that the  



                                                                                 

American College of Obstetrics and Gynecology has recently been scrutinizing elective,  



                                                                                                         

or "non-medically indicated," Caesarean sections and inductions of labor.  Yet both of  



                                                                                           

these "non-medically indicated" procedures, which do not necessarily serve to protect  



the  health  of  the  mother,  are  funded  by  Medicaid,  and  neither  one  requires  special  



                                                                                      

certification of medical necessity. The measures are thus under-inclusive; the statute and  



regulation  single  out  only  one  among  multiple  purportedly  "elective"  procedures  



available to pregnant women for restrictive funding requirements.  



                            

                    We conclude that the statute and regulation are not narrowly tailored to  



meet  the  ends  of  preserving  Medicaid  funds,  and  the  State  has  not  shown  that  the  



                                                              

differences between the affected classes justify the discriminatory treatment imposed by  



AS 47.07.068 and 7 AAC 160.900(d)(30).  



          134       See 28 P.3d at 911.  



                                                               -40-                                                             7334  


----------------------- Page 41-----------------------

V.    CONCLUSION  



             The judgment of the superior court is AFFIRMED.  



                                       -41-                                  7334
  


----------------------- Page 42-----------------------

STOWERS, Chief Justice, dissenting.  



                     The  doctrine  of  constitutional  avoidance  "is  a  tool  for  

                     choosing  between  competing  plausible  interpretations  of  a  

                     statutory text."  Under this tool, "as between two possible  

                     interpretations of a statute, by one of which it would be  

                                                                                                      

                     unconstitutional and by the other valid, [our] plain duty is  

                     to adopt that which will save the Act."[1]  



                     In State, Department of Health & Social Services  v. Planned Parenthood  

                                                                            



of Alaska, Inc. (Planned Parenthood 2001), this court ruled that the State must provide  

                                                                       

Medicaid funding for medically necessary abortions.2  

                                                                                      The court did not define the term  

"medically necessary."3  



                                                                                                     

                     Planned Parenthood 2001 addressed a challenge to a state regulation that  



limited  Medicaid  funding  for  abortions.    The  regulation  mirrored  federal  criteria  for  



funding of abortions - the so-called "Hyde Amendment" - which provides that federal  



funds may not be used to pay for an abortion unless the pregnancy threatens the woman's  

                                     



                                                        4  

life or is the result of rape or incest.  

                                                                                           

                                                           The superior court held that the State's regulation  



                                                                                5  

                                                                                                                      

violated the Alaska Constitution's right to privacy.                               On appeal, this court affirmed on a  



different  basis,  ruling  that  the  regulation  violated  the  Alaska  Constitution's  equal  



protection clause because it denied funding for medically necessary care for low-income  

                                                                                                                   



           1         Estate of Kim ex rel. Alexander v. Coxe                        , 295 P.3d 380, 388 (Alaska 2013)     



(emphasis added) (first quoting Clark v. Martinez, 543 U.S. 371, 381-82 (2005); then  

quoting Rust v. Sullivan , 500 U.S. 173, 190 (1991)).  



           2         28 P.3d 904 (Alaska 2001).  



           3         Id.  



           4         Id. at 907 n.8.  



           5         Id. at 907.  



                                                                  -42-                                                            7334
  


----------------------- Page 43-----------------------

               6  

Alaskans.     But  the  court  limited  its  holding  to  the  requirement  that  the  State  fund  



medically necessary abortions, stating that the case did "not concern State payment for  

                                                                  

elective abortions."7  



                    After this court's decision, the State adopted the definition for "medically  

                                                                            



necessary" abortions that the superior court had incorporated into its injunction.  The  

                                  



superior court defined "medically necessary" abortions as "those abortions certified by  



a physician as necessary to prevent the death or disability of the woman, or to ameliorate  

                                                           



a condition harmful to the woman's physical or psychological health."  This was to be  

                                                                                               



"determined  by  the  treating  physician  performing  the  abortion  services  in  his  or  her  

                                                            



professional judgment."  



                    Eventually  state  officials  attempted  to  create  a  standard  that  would  

                                                             

effectively distinguish between elective and medically necessary abortions.8  In 2013 the  

                  



Department of Health and Social Services (DHSS)  adopted a regulation defining when  

                        

an  abortion  is  "medically  necessary"  for  purposes  of  Medicaid  coverage.9  

                                                                                                                       Planned  



Parenthood brought suit, arguing that the regulation violated Alaska's equal protection  



guarantee by singling out abortion among Medicaid-funded services under a restrictive  

                     

                                                                                                                 



definition of medical necessity.  The superior court agreed with Planned Parenthood and  

                                 



granted a preliminary injunction against the regulation.  



          6         Id. at 913.  



          7         Id. at 905.  



          8         Minutes, Sen. Fin. Comm. Hearing  on S.B. 49, 28th Leg., 1st Sess.  (March  



29, 2013), http://www.akleg.gov/pdf/28/M/SFIN2013-03-290908.PDF.  



          9         7 Alaska Administrative Code (AAC) 160.900(d)(30)(2015).  



                                                              -43-                                                         7334
  


----------------------- Page 44-----------------------

                   In 2014 the Alaska Legislature passed a law creating a slightly different  

definition of medical necessity.10  

                                                 The resulting statute, AS 47.07.068, provides that  



Medicaid will not pay for abortion services unless they are for a medically necessary  



                                                                              11  

abortion or the pregnancy is the result of rape or incest.  

                                                                                 The statute defines when an  



abortion is medically necessary:  



                   "medically necessary abortion" means that, in a physician's  

                   objective      and     reasonable        professional        judgment       after  

                   considering medically relevant factors, an abortion must be  

                  performed  to  avoid  a  threat  of  serious  risk  to  the  life  or  

                                                                 

                  physical health of a woman from continuation of the woman's  

                                                                                  

                                  [12]  

                  pregnancy. 



The statute further defines "serious risk to the life or physical health" to include, but not  



be limited to, "a serious risk to the pregnant woman of (A) death; or (B) impairment of  

                                                                             



a major bodily function because of" any one of 21 enumerated medical conditions, with  

                                  



a catch-all provision:  



                   another physical disorder, physical injury, or physical illness,  

                   including a life-endangering physical condition caused by or  

                                                                        

                   arising from the pregnancy that places the woman in danger  

                   of  death  or  major  bodily  impairment  if  an  abortion  is  not  

                  performed.[13]  



                                                                                                               

                   Planned Parenthood amended its complaint to include the statute, and the  



superior court extended its preliminary injunction to enjoin the statute.  After trial the  



         10        Act of July 16, 2014, ch. 8,  2, 2014 Alaska Sess. Laws 1 (codified at AS       



 47.07.068).  



         11        AS 47.07.068(a).  The provision for pregnancies resulting from rape or  



incest mirrors the federal Hyde Amendment.  See 42 U.S.C.  1397ee(c)(1) (2012).  



         12        AS 47.07.068(b).  



         13        AS 47.07.068(b)(4).  



                                                         -44-                                                    7334
  


----------------------- Page 45-----------------------

superior  court  struck  down  both  AS  47.07.068  and  7  AAC  160.900(d)(30)  on  equal  



protection  grounds,  finding  that  the  enactments  impermissibly  discriminated  against  

                



indigent  women  seeking  abortions.    The  court  found  that  the  legislature  intended  



AS 47.07.068 to delineate "a high-risk, high-hazard standard that would preclude funding  



for  most  Medicaid  abortions."    The  court  concluded  that  the  statute's  definition  of  

                                               



"medically  necessary"  covered  "only  abortions  required  to  avoid  health  detriments  



attributable  to  the  enumerated  conditions,  either  fully  realizable  or  demonstrably  



imminent."  The court determined that the statute and regulation, so construed, violated  



Alaska's equal protection clause, and the court permanently enjoined their enforcement.  

                                                                                                   



                   The  State  appeals,  arguing  that  the  statute  and  regulation  can  -  and  



should - be interpreted to avoid finding them unconstitutional.  The State argues, among  

                                                                                           



other things, that the statute is entitled to a presumption of constitutionality:  a "well- 



established  rule  of  statutory  construction"  requires  courts  "if  possible  [to]  construe  

                                                                                                          

statutes so as to avoid the danger of unconstitutionality."14  

                                                                                        It argues "[n]ot only are  



statutes      presumed         constitutional,        but     any     doubts      are     resolved       in    favor     of  

constitutionality."15  

                              This rule, the State asserts, "is based on the recognition 'that the  

                                                            



legislature, like the courts, is pledged to support the state and federal constitutions and  

                        



that  the  courts  therefore,  should  presume  that  the  legislature  sought  to  act  within  

                                                   

constitutional limits,' "16 and "also recognizes that '[d]ue respect for the legislative branch  



of  government  requires  that  [the   court]  exercise  [its]  duty  to  declare  a  statute  

                                                     



          14       State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001).  



          15       See Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192   



(Alaska 2007).  



          16       See State v. Rice, 626 P.2d 104, 108 (Alaska 1981) (citing Kimoktoak v.  



State, 584 P.2d 25, 31 (Alaska 1978)).  



                                                           -45-                                                      7334
  


----------------------- Page 46-----------------------

unconstitutional only when squarely faced with the need to do so.' "17  



                    This court affirms the superior court's decision, holding that the language  

                                                                  



of the enactments "compels a 'high-risk, high-hazard' interpretation akin to that adopted  

                                                           



by the superior court . . . [that] imposes different requirements for Medicaid funding  



eligibility upon women who choose to have abortions than it does upon women who  

choose to carry their pregnancies to term."18  



                                                                                                

                                                                              

                    I disagree with the court's interpretative choice. The language of the statute  



                                                                                                                  

and regulation does not "compel" anything:  the language is what it is.  It is the court that  



chooses  to  construe  the  language  in  a  manner  that  leads  to  the  conclusion  that  the  



enactments are unconstitutional.  Where the court goes astray, in my opinion, is its failure  

                                                                                



to  give  anything  other  than  lip-service  to  a  well-recognized  canon  of  statutory  



interpretation:    the  doctrine  of  constitutional  avoidance.    In  Estate  of  Kim  ex  rel.  



Alexander v. Coxe , we explained that  



                    [t]he  doctrine  of  constitutional  avoidance  "is  a  tool  for  

                            

                    choosing  between  competing  plausible  interpretations  of  a  

                    statutory text."  Under  this tool, "as between two possible  

                    interpretations  of  a  statute,  by  one  of  which  it  would  be  

                                                                          

                    unconstitutional and by the other valid, [our] plain duty is to  

                                                             

                                                                        [19] 

                    adopt that which will save the Act."  



                                                                                              

                    The court's opinion expressly acknowledges that if an ambiguous statute or  



regulation "is susceptible to more than one reasonable interpretation, of which only one  



is  constitutional,  the  doctrine  of  constitutional  avoidance  directs  us  to  adopt  the  

                                                                                                                



          17        See State v. ACLU of Alaska, 204 P.3d 364, 373 (Alaska 2009).  



          18        Op. at 2-3 (emphasis added).  



          19        295 P.3d 380, 388 (Alaska 2013) (footnotes omitted) (first quoting Clark  



v. Martinez,  543 U.S. 371, 381-82 (2005); then quoting Rust v. Sullivan , 500 U.S. 173,  

 190 (1991)).  



                                                            -46-                                                       7334
  


----------------------- Page 47-----------------------

                                                                         20  

                                                                                                  

interpretation that saves the statute" or regulation.                        But the court fails to make any real  



              

effort to construe the challenged provisions to avoid finding the statute and regulation  



                                                                                                                

unconstitutional.  To the contrary, in reading the main opinion it becomes evident the  



court goes to great lengths in construing the statute and regulation to ensure that the  



conclusion of unconstitutionality is inevitable.  



                    The  State  offers  an  alternative  interpretation  that  would  "save"  the  

                                                                                                                



enactments.  Under AS 47.07.068, the State will fund an abortion  when a physician  



determines that a woman's condition indicates that continuing her pregnancy could put  

                                                                                                   



her at serious risk of physical impairment.  The State argues AS 47.07.068 employs a  



broad and inclusive definition of when an abortion is medically necessary for purposes  

                                                                             



of Medicaid coverage.  The court acknowledges  the State's arguments in support of  



"saving" the statute.  For example, the court explains:  



                    The statute's list of conditions in subsection (b)(4) includes a  

                                                  

                    final catch-all provision that reads, "another physical disorder,  

                    physical       injury,     or    physical       illness,     including        a   life- 

                    endangering physical condition caused by or arising from the  

                                                                                   

                    pregnancy that places the woman in danger of death or major  

                                                                                        

                    bodily impairment if an abortion is not performed."  The State  

                    argues that this catch-all provision broadens the permissive  

                    scope of the statute.  Because the phrase "another physical  

                    disorder,  physical  injury,  or  physical  illness"  contains  no  

                                                                 

                    severity requirement, this portion of the provision could, by  

                                                                                 

                    itself,  be  interpreted  to  broaden  the  scope  of  the  covered  

                                                                       

                    conditions.  Indeed, a State medical expert testified that he  

                    saw  this  provision  as  "a  barn  door"  that  provides  "a  large  

                                  

                                                                                                    [21] 

                    opening" for doctors to receive payment for abortions.  



                    I  would  accept  the  State's  argument  and,  applying  the  doctrine  of  



          20        Op. at 11 and n.40 (quoting                Estate of Kim , 295 P.3d at 388).  The court  



acknowledges that "the statute's text is ambiguous."  Op. at 14.  



          21        Op. at 11-12 (emphasis added) (footnotes omitted).  



                                                             -47-                                                        7334
  


----------------------- Page 48-----------------------

                                                           

constitutional  avoidance,  construe  the  statute  just  so,  interpreting  the  statute,  and  



particularly its catch-all provision, to broaden the scope of covered conditions and thereby  

avoid the constitutional impediment.22  



                                                                               

                      The challenged regulation, 7 AAC 160.900(d)(30), is virtually identical to  



AS  47.07.068,  except  in  its  broader  provision  for  mental  health  conditions.                                                 The  



                                                                                     

regulation authorizes Medicaid coverage to "avoid a threat of serious risk to the physical  



                

health of the woman" due to "a psychiatric disorder that places the woman in imminent  



                                                                                                  

danger of medical impairment of a major bodily function if an abortion is not performed."  



The regulation thus covers not only psychiatric disorders that threaten a woman's life,  



like depression with suicidal ideation, but also psychiatric disorders that threaten the  



woman's physical health, such as anorexia or self-neglect caused by depression or other  

mental illnesses, if the physician believes an abortion is needed to avoid these harms.23  



           22         This is what the sponsor of the bill intended. I give one example.  The court        



states that "[t]he statute also does not cover abortions when the fetus suffers from a fatal     

anomaly . . . .   The text does not leave room to consider an abortion medically necessary         

based on the suffering of the fetus.  The bill's sponsor indicated that he believed fatal  

fetal abnormalities would be covered under the bill's catch-all provision."  Op. at 25  

                                                                                                                            

(citing letter from Senator John Coghill to Senate Finance Committee Members (Apr. 1,  

                                                                                              

2013), http://www.akleg.gov/basis/Bill/Detail/28?Root=SB%20%2049#tab5_4).  "But,"  

the court continues, "this statement, unsupported by other evidence from the legislative  

history, is not sufficient to overcome the plain meaning of the statute."  Op. at 25.  Under  

                                                                                              

the doctrine of constitutional avoidance and as a matter of respect for the legislature, I  

would accept this clear and significant item of legislative history - it is the statement  

                        

of intent and understanding by the bill's sponsor, after all - as a sufficient basis to  

broadly interpret the catch-all provision as the bill's sponsor understood and intended it.  

                                                                                    



           23         Medicaid  generally  does  not  cover  treatment  sought  solely  to  alleviate  



distress  caused  by  life's  circumstances,  short  of  actual  diagnosed  mental  disorders.  

                                 

Medicaid is limited to providing care that protects basic health and does not provide all  

                                         

care that would optimize physical or mental well-being.  See 7 AAC 105.110(1) (services  

       

not eligible for Medicaid coverage if "not reasonably necessary for the diagnosis and  

                                                                                                                      (continued...)  



                                                                   -48-                                                             7334
  


----------------------- Page 49-----------------------

                                                              

                    To conclude, I believe that AS 47.07.068 and AAC 160.990(d)(30) can and  



                                  

should be interpreted broadly as the State argues to obviate the constitutional infirmities  



                                                                                       

that this court's rigid construction finds. I believe that the legislature can constitutionally  



determine  as  a  matter  of  state  policy  what  is  "medically  necessary"  for  purposes  of  



                                                                                                   

expenditure of limited state dollars to fund Medicaid abortions.  I believe the court today  



                                                                                 

fails to give respect to the legislature's proper role but instead substitutes its judgment for  



that of the legislature. Finally, nothing in Alaska's equal protection clause requires the  



State  to  subsidize  non-medically-necessary  abortions  for  Medicaid-eligible  women  



simply because it provides them with medically necessary healthcare.  I respectfully  



dissent.  



          23        (...continued)  



treatment of an illness or injury, or for the correction of an organic system").  A mental  

                                                                                  

health condition is grounds for coverage only if it poses a risk to the woman's life or  

                                                                                                       

physical health.  The evidence at trial showed that no published studies indicate that  

abortion  is  effective  as  treatment  for  mental  disorders  triggered  or  exacerbated  by  

                                                       

pregnancy, nor that it is endorsed as such by professional medical societies.  Planned  

                                                                                                                       

Parenthood's own witnesses appear to agree.  Dr. Bibeault, a perinatal psychiatrist, was  

                                                                                           

not aware of any studies that identify abortion as a treatment for perinatal mental illness.  

                                             

Dr. Meltzer-Brody, also a perinatal psychiatrist, was not aware of any such studies either,  

                                                                                     

nor had she discussed abortion as a treatment in her own published work on perinatal  

                                                                                  

depression. Dr. Meltzer-Brody also conceded that the medical profession does not view  

                          

abortion as an approach to treating mental disorders: "I don't think abortion is ever  

discussed  as  a  treatment  in  the  same  way  we  consider  medication  treatment  or  

                                                                        

psychotherapies  .  .  .  .  I  think  that's  because  the  medical  profession  sees  ending  a  

pregnancy as a very serious decision, but I don't think it's bandied about as considered  

                                                                                                                

treatment."  



                                                               -49-                                                         7334
  

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