STATE OF ALASKA and THE COMMISSIONER OF THE DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellants,
v.
PLANNED PARENTHOOD OF THE GREAT NORTHWEST, Appellee.
Appeal
from the Superior Court of the State of Alaska No. 3
AN-14-04711 CI, Third Judicial District, Anchorage, John
Suddock, Judge.
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 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.
OPINION
CARNEY, Justice.
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 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 created by the federal government,
[2]
which sets guidelines for eligibility and requires that
certain benefits be provided.[3] The federal government provides
matching funds that subsidize states' costs in providing
such health care.[4] Individual states administer the program
in compliance with federal requirements.[5] But each state
decides whether to 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
standing."[7] Medicaid is administered by the Department
of Health and Social Services (DHSS); it pays for medical
services that are "medically necessary as determined
by" statute, regulation, "or by the standards of
practice applicable to the provider."[8]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 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 the federal Hyde
Amendment.[10] The Hyde Amendment, originally passed in
1976 by the 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 except for such medical procedures
necessary for the victims of rape or
incest."[11] It has 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 funding for
"medically necessary abortions"[14] was a
departure from "the Medicaid program's purpose of
granting uniform and high quality medical care to all needy
persons of this state."[15] 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
right.[17] We held that the State had failed to
present a compelling interest to justify the
discrimination.[18] We affirmed the superior court judgment
striking down the regulation, effectively reinstating the
general Medicaid requirement of medical necessity that had
been in place before the promulgation of the
regulation.[19] As a result, the Medicaid 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
provider."[20] This continued until DHSS and the
legislature adopted the regulation and 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 require a more detailed certificate to obtain state
Medicaid funding for an abortion.[21] The 2013
form[22] 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 including but not limited to one of 21
listed conditions.[23]
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 of a woman from continuation of the
woman's pregnancy."[24] 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
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 statutory interpretation.[25] When interpreting a regulation
that does not implicate agency 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
interests."[27] Whether the classes being compared in an
equal protection case are "similarly situated" is
also a legal question reviewed de novo.[28]
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 pregnancies to
term.[29] Statutes "may be found to be
unconstitutional as applied or unconstitutional on their
face."[30] "We uphold a statute against a
facial constitutional challenge if 'despite ...
occasional problems it might create in its application to
specific cases, [it] has a plainly legitimate sweep.'
"[31] "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 interpret the statute.[33] After determining the meaning
of the statute, we analyze its constitutionality under
Alaska's equal protection doctrine.[34]
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 for the meaning the statutory language conveys to
others.' "[36] 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
legislative purpose or intent must be."[38] When "a
statute's meaning appears clear and unambiguous, ... the
party asserting a different meaning bears a correspondingly
heavy burden of demonstrating contrary legislative
intent."[39] 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 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
housing.[41]
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 pregnancy."[44] 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]
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 a
major bodily function because of one of 21
conditions.[46] The phrase "impairment of a major
bodily function" refers to a serious health problem,
though a doctor for Planned Parenthood testified that the
phrase is "not medical terminology."[47] 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 life threatening
problem."[48] 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 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 un quantifiable 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; 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 could
not be limited strictly to the Hyde Amendment's
standards.[50] And one of the State's medical
experts[51] 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 mother."[52] 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 to create the list of life-threatening
conditions incorporated into the statutory
language.[54]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 based on all the information
available to the doctor.[55] 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 not performed."[56] 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, [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
major bodily impairment if an abortion is not
performed."[58] This qualifying language 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 impairment."[59] 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 Hyde Amendment, [60] 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 of the
characteristics of the specific terms, absent clear
indication to the contrary."[61] The 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 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 woman.[63] The statute defines "serious risk
to the life or physical health" in great detail,
[64]but the precise meaning of
"threat q/"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 meaning in Alaska or elsewhere in the United
States.[65] In the absence of prior 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
... of. . . death[] [or] . . . impairment of a major
bodily function."[68] In this context, "risk" 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 or harm."[69] 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 or ...
impairment."[70] 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)
superfluous[71] and is not supported by the available
legislative history. There is no indication in the
legislative record that "threat 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 death, or of impairment from a listed
harm]."[72] This interpretation does not require
that 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 psychological disorders in its list of
conditions.[73] The catch-all provision specifically
limits its coverage to "another physical
disorder, physical injury, ox 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 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 to the fetus.[75]
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 bodily function."[76] 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]
The
statute also does not cover abortions when the fetus suffers
from a fatal anomaly.[78] The statute[79] states that an abortion
must be necessary to avoid the risk of harm to the life or
physical health of a pregnant woman.[80] 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.[81] 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 interpretations of an
ambiguous statute.[83] 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 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, we apply similar analytical methods to interpret its
text.[84] 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 Medicaid
funding for an abortion according to the
statute.[85]
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 one of the
following" conditions.[86] Pursuant to the regulation
each listed condition is itself an "impairment
of a major bodily function" or a "serious risk to
the physical health of the woman."[87] 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 impairment of a major bodily
function caused by the pregnancy.[88] A serious risk of
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 a
physical condition arising from the
pregnancy."[89] The regulation does not include the
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 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, and doubts are
resolved in favor of constitutionality."[91] "But a
statute infringing on a 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 the state's reasons for treating the groups
differently.[94]
We
begin by determining the appropriate comparison
classes.[95] We then evaluate whether "the
challenged law has a discriminatory purpose or is facially
discriminatory - i.e., whether the classes are treated
unequally."[96] Our ultimate determination of whether
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]
Planned
Parenthood has brought a facial challenge to the statute and
regulation, seeking to invalidate them in toto, as
enacted.[98] Against such challenges, "we 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 pregnant women based on their choice whether to
obtain an abortion.[100] 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 under
the same terms as any similarly situated
person.[101]
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 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 differential"
treatment.[103] A statute or regulation that burdens
the exercise of a constitutional right "is subject to
the most searching judicial scrutiny, "[104] and
"it has long been established that a law burdening the
fundamental right of reproductive choice demands strict
scrutiny."[105] 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 exercise of that
right."[106] Such scrutiny is particularly called
for where, as in this instance, the rejection of one option
inevitably requires the other.
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 "selectively den[ies] a benefit to
those who exercise a constitutional
right."[107] The State 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 for all Medicaid services -
that the service is needed to protect the patient's
health."[108]
"[W]e
look to the real-world effects of government action to
determine the appropriate level of equal protection
scrutiny."[109] 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
exercise of that choice.[110] 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, because the State's ...