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State v. Planned Parenthood of Great Northwest

Supreme Court of Alaska

February 15, 2019

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 ...


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