IN THE SUPREME COURT FOR THE STATE OF ALASKA
Supreme Court No.
Superior Court No.
KAREN PERDUE, Commissioner Department of Health and Social Services, and the DEPARTMENT OF
HEALTH AND SOCIAL SERVICES, STATE OF ALASKA,
PLANNED PARENTHOOD OF ALASKA, INC., JAN WHITEFIELD, M.D. and AND SUSAN LEMAGIE, M.D.,
APPEAL FROM THE SUPERIOR COURT THIRD JUDICIAL DISTRICT AT ANCHORAGE
JUDGE SEN K. TAN, PRESIDING
BRIEF OF APPELLEES
Cooperating Counsel to the
Alaska Civil Liberties Union
Suddock & Schleuss
500 L Street, Suite 300
Anchorage, AK 99501
Reproductive Freedom Project
125 Broad Street, 18th Floor
New York, NY 10004
*Admitted Pro Hac Vice
COUNTERSTATEMENT OF ISSUES
1. Whether the superior court correctly concluded that by denying Medicaid coverage to women for medically
necessary abortions, while providing coverage for medically necessary services for women who carry to term, the
State violates the right of privacy guaranteed by the Alaska Constitution.
2. Whether the judgment below should be affirmed on the ground that, by denying Medicaid coverage to women for
medically necessary abortions, while providing coverage for medically necessary services for women who carry to
term, the State violates the Inherent Rights provision of the Alaska Constitution.
3. Whether the judgment below should be affirmed on the ground that, by denying Medicaid coverage to women for
medically necessary abortions, while providing all covered services to men whenever medically necessary, the State
violates the Civil Rights provision of the Alaska Constitution and the Alaska Human Rights Law.
4. Whether the superior court correctly concluded that it had the inherent power to order relief to remedy the
COUNTERSTATEMENT OF THE CASE
Effective July 1, 1998, the State of Alaska turned its back on a more than twenty-five-year history of providing
nondiscriminatory medical care for poor women deciding whether or not to continue a pregnancy. Pursuant to 7
AAC 43.140, the regulation at issue in this case [hereinafter the Regulation], state assistance ceased to be available
for women seeking to terminate their pregnancies for health reasons. As of that date, state assistance was no longer
available for Medicaid-eligible women whose abortions were medically necessary because they suffer from
epilepsy, heart disease, renal disease, cancer, and other illnesses. It was no longer available for women whose
abortions were medically necessary because of complications resulting from mental illness such as schizophrenia
and manic depression. It was no longer available for women whose fetuses were severely, if not fatally, impaired.
Indeed, as of July 1, 1998, state assistance for abortions was denied unless the woman would otherwise die or the
pregnancy resulted from rape or incest. For Medicaid-eligible women continuing their pregnancies, in contrast, state
assistance remained available for all medically necessary care. State assistance also remained available for men for
all services covered by Medicaid when medically necessary. In other words, as of July 1, 1998, the State singled out
for discriminatory treatment one service -- abortion -- which is constitutionally protected and needed only by
It is this discrimination -- not the morality of abortion and not a claim that the state subsidize the exercise of a
fundamental right -- that gave rise to this lawsuit. As the California Supreme Court stated when addressing the very
issue presented here:
[T]he constitutional question before us does not involve a weighing of the value of abortion as against childbirth, but
instead concerns the protection of either procreative choice from discriminatory governmental treatment. . . .
. . . [T]he question presented is not whether the state is generally obligated to subsidize the exercise of constitutional
rights for those who cannot otherwise afford to do so. . . . Rather, we face the much narrower question of whether
the state, having enacted a general program to provide medical services to the poor, may selectively withhold such
benefits from otherwise qualified persons solely because such persons seek to exercise their constitutional right of
procreative choice in a manner which the state does not favor and does not wish to support.
Committee to Defend Reprod. Rights v. Myers, 625 P.2d 779, 780-81 (Cal. 1981).
Looking to the state constitution's express protection for privacy and to this Court's decision in Valley Hospital
Association v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997), the superior court held the Regulation
restricting medical assistance for abortions unconstitutional insofar as it discriminates. As the court recognized, the
State may not use its resources -- be they access to a quasi-public hospital or access to Medicaid coverage -- to favor
the decision of a woman to have a child over the decision to end a pregnancy. In so concluding, the court fell in line
with this Court's precedent; with every Attorney General Opinion to have considered this question; and with the
overwhelming authority from other states that, looking to their constitutions, have held unconstitutional state
Medicaid schemes that similarly subject abortion to unique and discriminatory treatment. As the superior court held,
the Alaska Constitution requires no less. Appellees now ask this Court to affirm.
Appellants offer essentially two arguments for reversal, both unavailing. First, Appellants argue that the reasoning
of the Federal Constitution should govern here. They look to Harris v. McRae, 448 U.S. 297 (1980), where the
United States Supreme Court upheld the denial of Federal Medicaid coverage for medically necessary abortions. But
the reasoning of Harris -- that under the Federal Constitution the government may use its money to make a "value
judgment favoring childbirth over abortion," id. at 314 -- is precisely the reasoning rejected by the courts of
California, Montana, Idaho, West Virginia, New Mexico, Minnesota, New Jersey, Massachusetts, Oregon, Illinois,
Vermont, and Connecticut when considering their selective Medicaid schemes, and -- most important -- by this
Court in Valley Hospital.
Valley Hospital clearly establishes that under the Alaska Constitution, the State may not deny public benefits -- in
that case, access to a public facility -- because a woman exercises her right of reproductive choice in a manner the
State disfavors and does not wish to subsidize. Thus, having chosen to subsidize reproductive choice by providing
medical assistance to women who carry to term, the State cannot constitutionally deny assistance to eligible women
who choose not to continue a pregnancy any more than it could subsidize the right to vote by providing busses to the
polls, but then offer service only to Democrats.
Second, Appellants make the extraordinary argument that separation of powers principles preclude judicial relief
because "[i]t is the province of [the] legislature to decide policy issues and encourage certain behaviors by funding
decisions." Appellants Br. at 41-42. Appellants thus ask this Court to hold that, so long as a constitutional violation
is intentional and involves money, the judiciary is powerless to act. This is not the law, as common sense and
precedent running from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to Valley Hospital establish. The Court
"cannot defer to the legislature [or an agency] when infringement of a constitutional right results from legislative [or
agency] action." 948 P.2d at 972. In the case at hand, as the superior court held, the Regulation infringes a
fundamental right, necessitating relief. This Court should affirm.
A. Counterstatement of Facts
1. Statutory and Regulatory Framework
Through its Medicaid program, Alaska provides coverage for a broad range of health care for its poor residents,
including pre- and post-natal care; inpatient and outpatient hospital services, childbirth services; prescription
services; family planning services; nurse midwife services; and nutrition services for pregnant women. 7 AAC
43.005. These services are provided to Medicaid-eligible persons whenever medically necessary. 42 U.S.C. ßß
1396a(a)(10)(A), 1396d(a); Deposition Transcript of Nancy Weller, Medical Assistance Administrator for the
Division of Medical Assistance, Department of Health and Social Services [hereinafter Weller Dep.] at 54 [Exc.
264]. Alaska Medicaid pays for all services required under federal law and provides optional coverage and services.
See AS 47.07.030(a), (b). Funding for Medicaid comes from federal and state sources. See 42 U.S.C. ßß 1396 to
1396p; AS 47.07.010-020.
Although pregnancy-related services are mandated under Medicaid, federal law prohibits the use of federal funds for
abortions other than those necessary because the pregnancy is life-threatening or results from rape or incest.
Consolidated Appropriations Act of 2000, Pub. L. No. 106-113, ß 509, 113 Stat. 1501, 1537 (1999). States are free,
however, to use their own funds to provide any services ineligible for federal reimbursement, including other
abortion services. Id.; see also Harris v. McRae, 448 U.S. 297, 311 n.16 (1980); Weller Dep. at 37-38 [Exc. 69-70].
Alaska has, in fact, for nearly three decades provided coverage for medically necessary abortions and related
services, 7 AAC 47.200(a)(4)(F),(5),(6); 7 AAC 43.140, most often with funds from the General Relief Program
(GRM),(1) Weller Dep. at 14-15 [Exc. 59-60].(2) During the 1998 legislative session, however, the legislature
defunded GRM expressly for the purpose of eliminating abortion coverage. It simultaneously established a new
program, Chronic and Acute Medical Assistance program (CAMA), identical to GRM in all but one respect: CAMA
makes no provision for abortion coverage. See SCS CSHB 459 (RLS) ß 7 [Exc. 9-16]; CCS HB 325 (brf sup maj fld
H/S) [Exc. 36-39]; Weller Dep. at 32-33 [Exc. 256-57].
Thus, as of July 1, 1998, state coverage of abortions for Medicaid-eligible women was limited by regulation to those
necessary because the pregnancy was life-threatening or resulted from rape or incest. 7 AAC 43.140. State coverage
of prenatal, delivery, or postpartum care, in contrast, is not similarly restricted. Weller Dep. at 56 [Exc. 266]. Indeed,
with the sole exception of abortions, Alaska Medicaid regulations do not limit reimbursement for any covered
service on a showing that the care is lifesaving (or sought as a result of rape or incest), and deny coverage when it is
otherwise medically necessary. Id. at 55-57 [Exc. 265-67].
2. The Effects of the State's Discriminatory Funding Scheme
Under the terms of 7 AAC 43.140, a Medicaid-eligible woman whose pregnancy threatens her health, but does not
rise to the level of endangering her life, is denied coverage if the medical care she seeks is an abortion. The record is
replete with evidence of physicians attesting to the compelling circumstances they treated when coverage for
medically necessary abortions was available.
One young woman had severe, uncontrolled juvenile diabetes. She already had hemorrhages in the retina affecting
her vision and her kidneys were not functioning well. She had been hospitalized twice in the prior three months. The
pregnancy made her diabetes more difficult to control. Had she continued the pregnancy, she would have faced
multiple hospitalizations. Dukeminier • 13 [Exc. 218-19]; see also Rollins • 2 [Exc. 227-28].(3)
A woman with sickle cell anemia who sought an abortion had suffered three severe sickle cell crises during a
previous pregnancy. Each time she had to be hospitalized and on two occasions she received blood transfusions. The
pain had been unbearable. When she became pregnant again, she sought an abortion to avoid the significant health
risks she faced if she continued the pregnancy. Whitefield •• 19-20 [Exc. 240].
One woman suffered from AIDS. In addition to physical health problems, she had AIDS encephalitis, an infection in
the brain that caused her to suffer from acute psychosis. She had been institutionalized on a number of occasions; at
times she lived on the streets; and she had been physically abused. In addition to the health risks to the fetus, it
would have been impossible for her to care for a child. For all these reasons, she determined that she could not
continue the pregnancy. Whitefield • 27 [Exc. 243].
One patient sought an abortion because her fetus had severe anomalies. It had no stomache bubble, no arms, and
severely shortened femurs; and it was also experiencing intrauterine seizures. It was not clear that the fetus could
survive. The woman could not bear the idea of continuing the pregnancy, only to have the baby die or suffer
incredibly. Nor was she prepared, given her life circumstances, to care for a child with the severe complications that
could already be diagnosed. Whitefield • 23 [Exc. 241-42].
These women are not unique. Providers regularly see women suffering from diabetes, hypertension, severe asthma,
drug addiction, cancer, heart disease, epilepsy, AIDS, and lupus, among myriad other conditions, who seek
medically necessary abortions. E.g., Dukeminier •• 8-9 [Exc. 217]; Rollins • 8 [Exc. 229-30]; Lemagie •• 10-14
[Exc. 248-50]; Montana • 5 [Exc. 223-24]; Rollins • 2 [Exc. 285-86]; Whitefield •• 14-27 [Exc. 239-43]. They
see women physically abused by their partners; women suffering from schizophrenia and depression; and women
carrying impaired fetuses, even those with no prospect of survival, needing abortions and dependent on Medicaid for
their health care. E.g., Whitefield •• 22-24 [Exc. 241-42]; Lemagie •• 13-15, 17 [Exc. 249-51]; Montana • 5
[Exc. 223-24]. As Appellants' representative testified, under the Regulation, women suffering from these conditions
would be denied assistance for abortion, despite the harm to their health of continued pregnancy. Weller Dep. at
47-50 [Exc. 260-63]. They would, however, be afforded coverage for a broad range of prenatal, child birth, and
As the superior court found, the denial of assistance for medically necessary abortions harms Medicaid-eligible
women. In the absence of state assistance, many "who seek abortions for medical reasons will not be able to gather
the funds necessary to have the procedure performed." Mem. & Dec. at 5 [Exc. 109]; see also id. at 6 [Exc. 110].(4)
Appellants admit as much. The fiscal note submitted by the Department of Health and Social Services [hereinafter
the Department or DHSS] to the legislature estimated that, if denied coverage for medically necessary abortions,
35% of pregnant, Medicaid-eligible women in this state who would otherwise have terminated their pregnancies
would be forced to carry to term, with the result that 295 additional women per year would need assistance for
childbirth and infant care. Fiscal Note to Bill No. CSHB 234 (Jan. 27, 1998) [hereinafter DHSS Fiscal Note] [Exc.
176]; see also Weller Dep. at 68-70 [Exc. 272-74]; Henshaw •• 19-20 [Exc. 208-09].
The obstacles Medicaid-eligible women face obtaining abortions, absent state assistance, are inevitable, and often
insurmountable. As the superior court found:
The cost of abortion services for Alaskan women can run from $450 to $4,000. In addition to medical costs, there
are often travel and lodging costs. Many women have to travel from remote areas where abortion services are not
available, to places such as Fairbanks, Anchorage, Soldotna or Washington state. The cost of travel and lodging for
these women can run as high as $1,400. As a result, the total cost of an abortion for Alaskan women can range from
$450 to $5,400.
Mem. & Dec. at 5 [Exc. 109]. The finding was amply supported. See Henshaw •• 7, 9-10 [Exc. 203-04];
Dukeminier • 6 [Exc. 216]; Huntley •• 3-7 [Exc. 233-34]; Rollins • 6 [Exc. 229]; Whitefield • 9 [Exc. 237].
These sums are well beyond the means of Medicaid-eligible women, many of whom, the superior court found, have
no income but public assistance. Mem. & Dec. at 5 [Exc. 109]; see also Henshaw • 12 [Exc. 205]. In 1998, a family
of three subsisting on Alaska Temporary Assistance Program (ATAP) benefits received a maximum cash grant of
$923 per month. Mem. & Dec. at 5 [Exc. 109]; see also Henshaw • 12 [Exc. 205]. The cost of a first-trimester
abortion alone then could consume 75% of the family's monthly income. Henshaw • 9 [Exc. 204]. With travel and
lodging added, the total cost for some women exceeds the monthly maximum ATAP grant for a three-person family.
See Huntley •• 3-6 [Exc. 233-34].(5)
Medicaid-eligible women who are unable to gather funds for medically necessary abortions suffer. Their health is at
risk if abortion is denied or delayed. Pregnant women who have diabetes, either preexisting or pregnancy-induced,
for example, risk hypertension, serious infection, and preeclampsia, Whitefield • 17 [Exc. 239]; pregnant women
with hypertension face an increased risk of severe hemorrhage and heart failure, id. • 18 [Exc. 239-40]; and
pregnant women with schizophrenia and other psychopathologies face an increased risk of breakdowns, Lemagie
•13 [Exc. 249]. In addition, women who are compelled to continue an unwanted pregnancy experience distress and
psychological trauma, in varying degrees, as well as greater educational, economic, and employment difficulties.
Henshaw •• 22-23 [Exc. 210-11]; Rollins •• 7-8 [Exc. 287-88]; Lemagie • 19 [Exc. 251]. Even those women
who manage to secure the funds and thus to obtain an abortion are harmed. To gather the necessary funds, some
scrimp on food and clothing and other necessities, to the detriment of themselves and their families. Dukeminier •
10 [Exc. 217-18]; Whitefield • 11 [Exc. 238]; see also Henshaw • 15 [Exc. 206]. Others must compromise their
privacy, there being no option but to divulge their plans for an abortion to explain their need for money. Dukeminier
• 10 [Exc. 217-18]; Lemagie •• 18-19 [Exc. 251]. Because the effort to gather funds takes time, any abortion is
delayed, with the result that the cost of the procedure increases, its availability decreases, and the risks increase.
Henshaw •• 7-10, 15-19 [Exc. 203-04, 206-08]. Although abortion remains safer than childbirth, with each week
of delay from eight to twenty weeks measured from a woman's last menstrual period, the risk of major medical
complications increases by twenty percent, and the risk of death, by thirty percent. Henshaw •• 17-18 [Exc.
207-08]. Preexisting and pregnancy-induced conditions can also worsen. E.g., Lemagie • 10 [Exc. 248]. In some
cases, medical conditions are relieved with the end of the pregnancy; in others, the woman's health is permanently
impaired. Dukeminier • 12 [Exc. 218]; Lemagie •• 17-20 [Exc. 250-52]; Whitefield •• 12-13 [Exc. 238].
Finally, as Appellants admitted and the superior court found, denial of coverage for medically necessary abortions
costs the State more than if it were to continue to fund the procedures. Mem. & Dec. at 13-14 [Exc. 117-18]. For
fiscal year 1998, the cost on average each time a Medicaid-eligible woman carried to term exceeded $10,500:
$8,600 for the birth and postpartum care, plus "considerably" more than $1,900 for infant care for the first year.
Weller Dep. at 43, 45, 64 [Exc. 258-59, 270]. In contrast, the State paid on average $1,058 for each medically
necessary abortion, including transportation costs. Id. at 58-59 [Exc. 268-69]. Even accounting for 59.8%
reimbursement by the federal government for maternal and infant care, id. at 66 [Exc. 271], the denial of coverage
for medically necessary abortions results in increased costs to the State. Indeed, the Department projected increased
costs to the State in excess of $200,000 in the first year in which coverage for medically necessary abortions was
Appellants submitted no evidence to dispute any of the foregoing, material facts. [R. 990-993, 1036-80].
B. Summary of Proceedings and Opinion of the Superior Court
Appellees Planned Parenthood, Inc., Jan Whitefield, M.D., and Susan Lemagie, M.D., on behalf of themselves and
their Medicaid-eligible patients, filed this action in June 1998, to prevent enforcement of Regulation 7 AAC 43.140
insofar as it denies coverage for medically necessary abortions for Medicaid-eligible women. Compl. [Exc. 17-35].
On July 1, 1998, the superior court denied Appellees' motion for a temporary restraining order. Order at 6. [R. 13].
Thereafter, the parties filed cross-motions for summary judgment.
On March 16, 1999, the superior court issued its Memorandum and Decision, granting Appellees' motion for
summary judgment and denying Appellants.' Mem. & Dec. at 19 [Exc. 123]. The superior court concluded, first, that
the Alaska Constitution provides independent and broader protection for the right of privacy than the Federal
Constitution, and protects reproductive choice as a fundamental right. Id. at 8-9 [Exc. 112-13]. Turning to the
Regulation, the superior court emphasized,
If an indigent woman faces a pregnancy with health risks but not sufficient risks to endanger her life, 7 AAC 43.140
provides her with two options. She can carry the pregnancy to term, and have all of her health care costs covered.
Or, she can choose to abort, in which case she will receive no coverage.
Id. at 9-10 [Exc. 113-14]. As a result, the court found, some women "will have no choice but to go forward with the
pregnancy." Id. at 10 [Exc. 114]. The discriminatory treatment, the court held, "impermissibly interferes with a
Medicaid-eligible woman's fundamental right to privacy to decide whether or not to carry a child to term." Id. at 11
The court also held that Appellants had proven no compelling interest to justify the discrimination. As the court
emphasized, the regulatory scheme will "thwart," not serve, the asserted interest -- to ensure the best possible
outcome of pregnancies in Alaska -- "leaving as it does fewer health care dollars . . . available for distribution
among a greater number of children." Id. at 14 [Exc. 118]. Looking to Valley Hospital, the court further held that the
state's interest in "discouragement of abortion" could not justify interference with the fundamental right. Id. at 15
[Exc. 119]. The court did not reach the two alternative grounds advanced by Appellees, namely that the Regulation
violates the state constitutional guarantees of equal protection and sex equality. Id. at 16 [Exc. 120]. Finally, the
superior court held that it had the inherent authority to order relief to remedy the constitutional violation, rejecting
Appellants' argument that any relief would violate the separation of powers doctrine. Id. at 16-18 [Exc. 120-22].
On April 2, 1999, the superior court issued a Final Judgment that permanently enjoined Appellants from enforcing
the Regulation "so as to deny coverage for medically necessary abortions." Final J. at • 4 [Exc. 124-25]. Appellants'
subsequent motions for a stay of the injunction pending appeal were denied both by the superior court and by this
Court. Order at 2-4 [Exc. 127-29];(7) Order at 2. On December 6, 1999, Appellees filed a Motion for Order to Show
Cause why Appellants should not be found in contempt, no claim for a medically necessary abortion having been
paid pursuant to the Final Judgment. The motion has not yet been decided.
STANDARD OF REVIEW
This Court reviews the grant of summary judgment de novo. Bennett v. Weimar, 975 P.2d 691, 694 (Alaska 1999).
A grant of summary judgment is affirmed if, viewed in the light most favorable to the nonmovant, there are no
material facts in dispute and judgment should be entered as a matter of law. Id. Here, Appellants submitted no
evidence to place in dispute any of the facts material to Appellees' claim. This Court therefore need decide only
whether the superior court applied the law correctly. See generally State v. Teller Native Corp., 904 P.2d 847, 849
I. The Superior Court Correctly Held That The Alaska Constitution Cannot Tolerate The Discriminatory
Treatment Of Women Seeking Medically Necessary Abortions Wrought By The Regulation.
The superior court held the Regulation to "impermissibly interefere with a Medicaid-eligible woman's fundamental
right to privacy to decide whether or not to carry a child to term." Mem. & Dec. at 11 [Exc. 115]. The court looked
to the state Constitution's express protection for privacy, its ruling turning on the breadth and independence of the
state guarantee. The court did not reach the question whether the Regulation also violates the guarantees of equal
protection and sex equality. The Alaska Constitution, however, provides independent grounds for relief on these
claims as well. See Teller Native Corp., 904 P.2d at 849. On any one or all grounds, this Court should affirm.
A. The Superior Court Correctly Held that in Affording Medicaid Coverage for Women Who Continue Their
Pregnancies to Term, While Denying Coverage to Women for Abortions Necessary for Their Health, the
Regulation Violates Alaska's Right to Privacy.
Unlike the Federal Constitution, the Alaska Constitution expressly protects the right to privacy: "The right of the
people to privacy is recognized and shall not be infringed." Art. I, ß 22. This provision encompasses the right of
reproductive choice as fundamental. As Chief Justice Compton explained in Valley Hospital,
A woman's control of her body, and the choice whether or when to bear children, involves the kind of
decision-making that is "necessary for civilized life and ordered liberty" . . . . Our prior decisions support the further
conclusion that the right to an abortion is the kind of fundamental right and privilege encompassed within the
intention and spirit of Alaska's constitutional language.
948 P.2d at 968 (citation omitted). Appreciating the decision whether or not to have a child as one of "the most
profound and intimate," this Court held the Alaska Constitution to "protect reproductive autonomy, including the
right to an abortion, more broadly than does the United States Constitution." Id. at 966. The Court thus expressly
rejected "the narrower definition of th[e] right" governing the Federal Constitution, holding instead that any
constraint survives scrutiny under the Alaska Constitution only if "justified by a compelling state interest and no less
restrictive means could advance that interest." Id. at 969. Consistent with this level of protection, Valley Hospital
establishes that the state Constitution protects reproductive rights against government interference, whether in the
form of direct prohibition or manipulation through subsidies. The court below was correct in holding that the state
Constitution and this precedent condemn the Regulation.
1. The Regulation infringes the right of reproductive choice.
As the superior court understood, this case concerns the constitutionality of discriminatory treatment by the
government, based on a woman's decision whether or not to carry a pregnancy to term. It does not concern a claim
that the government must subsidize the exercise of a fundamental right. Appellees do not now, nor have they ever,
claimed that the Constitution requires subsidization of the exercise of the right to reproductive choice, any more than
it requires the subsidization of the right to free speech. Rather, the claim is that once the government makes the
decision to subsidize a fundamental right, it must do so in an evenhanded, nondiscriminatory manner. (8) As the
Massachusetts high court explained:
As an initial matter, the Legislature need not subsidize any of the costs associated with child bearing, or with health
care generally. However, once it chooses to enter the constitutionally protected area of choice, it must do so with
genuine indifference. It may not weigh the options open to the pregnant woman by its allocation of public funds; in
this area, government is not free to 'achieve with carrots what [it] is forbidden to achieve with sticks.'
Moe v. Secretary of Admin. & Fin., 417 N.E.2d 387, 402 (Mass. 1981) (quoting Laurence Tribe, American
Constitutional Law ß 15-10, at 933 n.77 (1978)) (App. Ex. 6).
The principle is simple, and well rooted in fundamental constitutional principles, as an analogy readily illustrates:
The state has no obligation to subsidize free speech, for example, by making a government building available for a
public forum. But once the state decides to make a building available to the public, it may not discriminate in
conferring the benefit of the forum: it may not, for example, open city hall for a forum on the death penalty and then
exclude those who favor the death penalty. In Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978), for
example, this Court held that the exclusion of the Alaska Gay Coalition from a government directory of local
services -- because of the manner in which it exercised its free speech rights -- violated the Alaska Constitution. The
government, of course, had no obligation to publish a directory or otherwise subsidize the rights of speech and
association of the Coalition. However, as this Court held, "[o]nce there exists a government-controlled forum for the
dissemination of information and expression of ideas, the government cannot deny equal access to that forum based
on content alone." Id. at 955. Relying on their independent state constitutional protections for reproductive choice,
the courts of twelve states have invalidated restraints on abortion coverage in medical assistance programs in which
the state funded other pregnancy-related services.(9) These courts have recognized that, with reproductive choice, no
less than with speech, the state cannot discriminate once it chooses to subsidize exercise of the right. Thus, these
courts have all held that states must provide medical assistance for abortions on the same terms as other
In so holding, these courts have rejected the reasoning of the federal precedent now urged on this Court. The United
States Supreme Court has upheld restrictions on Federal Medicaid coverage for abortions akin to the Regulation,
Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980), reasoning that the Federal Constitution
permits the state to "make a value judgment favoring childbirth over abortion and . . . implement that judgment by
the allocation of public funds." Maher, 432 U.S. at 474. Applying the same logic, the Court subsequently upheld a
state statute prohibiting the use of any public facility for any but lifesaving abortions. Looking to Maher and Harris,
the Court reasoned that, if the state may implement a value judgment favoring childbirth over abortion by the
allocation of public funds, "surely it may do so through the allocation of other public resources, such as hospitals."
Webster v. Reproductive Health Servs., 492 U.S. 490, 509-10 (1989). But courts in the overwhelming majority of
states -- including courts in every state with an express privacy clause to have considered the question -- have
rejected the federal analysis.(10)
This Court's precedent compels the same result. Indeed, in Valley Hospital, this Court rejected the federal precedent
and its reasoning. In that case, this Court confronted the very question at issue in Webster: the constitutionality of a
quasi-public hospital's refusal to allow use of its facilities for abortions except in cases of maternal life
endangerment, rape, incest, or a fetal condition incompatible with life. This Court did not, however, hold that,
because the restriction involved a public resource, the restraint was permissible. To the contrary, emphasizing the
hospital's reliance on government funds, the Court held the policy unconstitutional. 948 P.2d at 971. Moreover,
unlike the United States Supreme Court, this Court did not hold that public resources could be used to implement a
"value judgment" disfavoring abortion. Rather, this Court explicitly rejected any claim that the hospital could "limit
access to lawful medical procedures for moral . . . reasons," id. at 970, or that a woman's choice of medical
procedures could be "subject to the approval of a hospital's board of directors, according to their own values," id. at
This Court's decision in Valley Hospital affirmed that of (now) Justice Fabe, which expressly rejected the reasoning
of Webster and Harris. Valley Hospital had defended its policy on the grounds that it was not a general prohibition
on abortion, but merely a refusal to allow any but a narrow category of abortions at its facility -- an argument that
parallels exactly that advanced by Appellants here. The court rejected this argument, relying in part on the California
Supreme Court's ruling in Committee to Defend, which struck a restriction on Medicaid coverage for abortion
virtually identical to the Regulation. Mat-Su Coalition for Choice v. Valley Hosp., No. 3PA-92-01207, slip op. at 19
(Alaska Super. Ct. Feb. 9, 1993) [Exc. 148-75]. The court explained:
A similar argument was asserted in Committee to Defend . . . . In that case, the [California] Attorney General
conceded that the state had no authority to prohibit women from exercising their right of procreative choice as they
saw fit. But the Attorney General argued that:
[T]he state violates no constitutional precept when it does not directly prohibit the protected activity but simply
declines to extend a public benefit -- in this case publicly funded medical care -- to those who choose to exercise
their constitutional right in a manner the state does not approve and does not wish to subsidize.
Id. The California Supreme Court rejected this argument that the state may indirectly impair a woman's reproductive
Id. at 19-20 [Exc. 170-71]; see also Valley Hosp., 948 P.2d at 967 n.7 (citing Committee to Defend favorably).
Valley Hospital thus clearly establishes that under the Alaska Constitution, the State may not deny a public benefit --
in that case, access to a public facility for a particular service -- because a citizen exercises her right of reproductive
choice in a manner the State disfavors and does not wish to subsidize. This Court's rejection of Appellants' argument
is not new to Valley Hospital. As the Court in Alaska Gay Coalition emphasized, once the government creates a
public forum, it "'may not grant [its] use . . . to people whose views it finds acceptable, but deny use to those
wishing to express less favored or more controversial views.'" 578 P.2d at 955 (citation omitted); see also Kenai
Peninsula Borough Sch. Dist. v. Kenai Peninsula Borough Sch. Dist. Classified Ass'n, 590 P.2d 437, 440 (Alaska
1979) ("government may not confer a statutory right or benefit and withdraw it when the beneficiary exercises a
constitutional prerogative"); State v. Wylie, 516 P.2d 142, 146 (Alaska 1973) ("[a]lthough there is no constitutional
right to employment by the state, the state may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests"). Indeed, so deep is this principle rooted that every Attorney General Opinion to
have considered the issue has concluded that the Alaska Constitution would not abide the reasoning of the federal
caselaw upholding restrictions on Medicaid coverage for abortions. (11)
Faced with this precedent, Appellants and their amici are left to distort Valley Hospital and to rely on the federal
reasoning rejected therein.(12) Amicus Legislature claims Valley Hospital would be analogous only if the Regulation
denied all Medicaid benefits -- for all services -- to women who choose to terminate a pregnancy (again an argument
derived from the federal cases). Amicus Legislature Br. at 37; see Harris, 448 U.S. at 317 n.19. But in Valley
Hospital, this Court struck down the public facility restriction, notwithstanding that it left women who terminated a
pregnancy with access to the hospital for all other services. Nor is Valley Hospital distinguished on the theory that
there, women were worse off because of the state's action, whereas here "the state simply leaves the woman to her
own means to obtain her abortion." Amicus Legislature Br. at 38 n.25. The policy in Valley Hospital, no less than
the discriminatory scheme here, left women "to [their] own means." As this Court recognized, faced with the
restrictive hospital policy, women were left to "arrange the necessary travel" to another facility for abortion care.
948 P.2d at 969 n.8. Nor can Valley Hospital be distinguished by casting the hospital policy as a ban or the result as
compelled by the hospital's monopoly power. That policy, like the restriction on Medicaid coverage, "limit[ed]
access" to but did not ban abortion, id. at 970, and the Court's holding did not turn on the hospital's monopoly
power: the Court struck the statute permitting hospitals to refuse to offer abortion services, "to the extent that it
applies to [all] quasi-public institutions" -- not just those with a monopoly on abortion care, id. at 965. There is thus
no way for Appellants to avoid the import of Valley Hospital: Under the Alaska Constitution, just as the State may
not implement a value judgment favoring childbirth over abortion through the allocation of public resources such as
hospitals, it may not do so through the allocation of public funds. (13)
Appellants and their amici also argue, in essence, that the women in this state who rely on Medicaid are no worse off
because the State has stopped providing coverage for medically necessary abortions. Rather, they are, the argument
goes, in the same position as if the State had never provided abortion coverage. Their claim, which is nothing but a
reiteration of federal reasoning, misses the mark: it wholly ignores the discriminatory nature and the coercive effect
of the selective allocation of government benefits. When the government opens city hall for use by individuals
favoring the death penalty, those who are excluded are not, constitutionally speaking, in the same position as if the
government had never opened city hall, even though in both circumstances they are without a forum. Rather, by
opening its doors to some and shutting them to others, the government shows favoritism based solely on a difference
in how the two groups exercise their fundamental rights of free speech and association. See Committee to Defend,
625 P.2d at 788 (rejecting argument identical to Appellants) (App. Ex. 5). It puts its thumb on the scale, in a context
where the right is to be protected from government influence, interference, and discrimination. In this respect, it
makes no difference whether the group opposing the death penalty could rent a private hall, as it could if the city
hall had never been open. See Alaska Gay Coalition, 578 P.2d at 960 ("the availability of alternative means of
communication does not mitigate the harm" of exclusion from forum). Second, the government chills or discourages
the speech of those subject to its official disfavor, rendering the government action a violation of the right of speech
itself. Id. at 955, 960 (recognizing exclusion of Coalition to violate guarantees of equal protection and free speech);
see also Committee to Defend, 625 P.2d at 787-88 (addressing public forum analogy) (App. Ex. 5).
As this Court recognized in Valley Hospital, the government's discrimination in the subsidization of reproductive
choice is equally, and dually, offensive. By providing benefits to women who carry to term, while denying
assistance to women who choose to exercise their right in a manner disfavored by the State, the State discriminates.
It thus intrudes into the decision this Court has described as one of the most "profound and intimate," 948 P.2d at
968, and places its imprimatur only on the decision to carry to term, id. at 969 n.8; see also Women's Health Ctr.,
446 S.E.2d at 666 (discrimination frustrates "goal of 'fundamental fairness'") (App. Ex. 3); Right to Choose, 450
A.2d at 934 (same) (App. Ex. 4); Committee to Defend, 625 P.2d at 788 (same) (App. Ex. 5).
By using its resources to support only childbirth, the State also pressures recipients to forego the choice the State
disfavors, in violation of the state constitutional guarantee of reproductive choice. As the California Supreme Court
[F]rom a realistic perspective, we cannot characterize the statutory scheme as merely providing a public benefit
which the individual recipient is free to accept or refuse without any impairment of her constitutional rights. On the
contrary, the State is utilizing its resources to ensure that women who are too poor to obtain medical care on their
own will exercise their right of procreative choice only in the manner approved by the State.
Committee to Defend, 625 P.2d at 793 (App. Ex. 5); see also Women's Health Ctr., 446 S.E.2d at 666 (App. Ex. 3);
Right to Choose, 450 A.2d at 935 (App. Ex. 4); Doe v. Maher, 515 A.2d at 152 (App. Ex. 11). As Appellants
themselves admit, more than one-third of the women who would otherwise have abortions will be forced to carry to
term in the face of the denial of assistance. DHSS Fiscal Note [Exc. 176]. (14)
In short, as the superior court held, the express guarantee of privacy of the Constitution; the broad protection
afforded "the fundamental right to an abortion," Valley Hospital, 948 P.2d at 969; and the precedent of this Court
rejecting any notion that the state may use its resources to discriminate based on the exercise of a fundamental right,
all require that the Regulation be struck insofar as it denies state assistance for medically necessary abortions. This
Court should affirm the decision below.
2. The Regulation does not serve a compelling state interest.
Because it infringes the fundamental right of reproductive choice guaranteed by Alaska's privacy clause, the
Regulation is unconstitutional unless it is "justified by a compelling state interest, and no less restrictive means
could advance that interest." Valley Hospital, 948 P.2d at 969. In this action, as the superior court noted, Appellants
essentially articulate only one interest: that the state has a compelling interest in using its resources to foster the
health of pregnant women and the children they bear. Mem. & Dec. at 12 [Exc. 116]. The superior court was correct
in holding that that interest does not justify constraining the fundamental right of reproductive choice.
As the superior court held, Appellants' interest in the health of pregnant women and the children they bear (as
distinct from an interest in fetal life) is served by coverage for pregnancy-related services, but is not served by the
denial of coverage for medically necessary abortions. See id. at 12-16 [Exc. 112-20]. Indeed, by no measure is the
restraint on abortion coverage the least restrictive means of assisting the women who carry to term. Appellants can
advance that interest "without burdening the right of procreative choice simply by funding impartially the expenses
of childbirth and abortion." Committee to Defend, 625 P.2d at 797 (App. Ex. 5). Even Appellants admit that "the
general welfare of pregnant women who choose to continue their pregnancies, and the state's interest in assuring the
best potential outcome of those pregnancies, does not depend upon a ban or a limitation on lawful abortion
procedures." Appellants' Br. at 17-18. In fact, any genuine interest in promoting maternal and child health counsels
toward providing coverage for both abortions necessary for a woman's health, as well as for medically necessary
services for women who carry their pregnancies to term. See generally supra Statement of the Case.
This is particularly the case where, as here, as Appellants admitted and the superior court found, funding medically
necessary abortions will not cost the State, but will in fact save it money. DHSS Fiscal Note [Exc. 176]; Mem. &
Dec. at 14 [Exc. 118].(15) There is thus no basis for any argument that money expended for abortion services will
"drain" funds from pregnancy-related services or other services for needy Alaskans. To the contrary, as the superior
court reasoned, [U]nder [Appellants'] regulatory scheme, fewer health care dollars will be available for distribution
among a greater number of children. Not only is the State's purported compelling state interest not served by the
current regulations, it is thwarted.
Mem. & Dec. at 14 [Exc. 118].(16)
The other possible interests -- including those that may underlie the asserted interest -- are no more availing. As the
superior court concluded,
The State's alleged interest in providing the best possible start in life for Alaskans can only cloak a policy decision to
favor birth over abortion. The evidence supports the conclusion that the legislative purpose of the program change
was to discourage abortion.
Id.; see Appellants' Br. at 41-42 (conceding interest in favoring childbirth over abortion). That interest, however, is
not even legitimate in this context. Mem. & Dec. at 15 [Exc. 119]. As this Court held in Valley Hospital,
constitutional rights "'cannot be allowed to yield simply because of disagreement with them.'" 948 P.2d at 972
Similarly, any possible interest Appellants might assert in protecting potential human life throughout pregnancy is
not a compelling interest that justifies the Regulation's infringement on the right to reproductive choice. By this
measure, the Regulation impermissibly subordinates a woman's right to reproductive choice prior to fetal viability,
and her health throughout the pregnancy, to the State's interest in fetal life. The interest in potential life accordingly
cannot justify the discriminatory funding scheme. See, e.g., Right to Choose, 450 A.2d at 937 (App. Ex. 4); Moe,
417 N.E.2d at 403-04 (App. Ex. 6); Doe v. Maher, 515 A.2d at 157 (App. Ex. 11).(17)
The discriminatory denial of funding for medically necessary abortions thus infringes on a woman's fundamental
right to choose whether or not to carry a pregnancy to term, and it is not justified by the interest Appellants' assert.
This Court should affirm.
B. By Denying State Assistance to Women for Abortions that Are Medically Necessary, While Providing
Medically Necessary Assistance to Women Carrying to Term, the State Violates the Inherent Rights
Provision of the Alaska Constitution.
The Inherent Rights provision of Article I, Section 1 of the Alaska Constitution provides, in pertinent part, that "all
persons are equal and entitled to equal rights, opportunities, and protection under the law. . . ." Art. I, ß 1. Article I,
Section 1 provides broader rights than the Federal Constitution, as this Court has recognized:
Alaska's founding fathers were not content merely to echo the requirements of the fourteenth amendment, which
guarantees all persons "equal protection of the laws." They intended to provide the citizens of this state with broader
protection than they are entitled to under the Constitution of the United States. Thus, they adopted a provision that is
quite different in its terminology declaring "that all persons are equal and entitled to equal rights, opportunities, and
protections under the law."
The proceedings of the Alaska Constitutional Convention make it abundantly clear that this difference is one of
substance, rather than mere style.
Schafer v. Vest, 680 P.2d 1169, 1172 (Alaska 1984) (citation omitted) (Burke, C.J., concurring); see also State v.
Anthony, 810 P.2d 155, 157 (Alaska 1991) ("Alaska's equal protection clause is more protective of individual rights
than the federal . . . clause.").
A three-part test is applied in analyzing whether a law violates Alaska's equal protection guarantee.
First, it must be determined at the outset what weight should be afforded the constitutional interest impaired by the
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.
Alaska Pac. Assur. Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984). Applying this test, the classification created
by the Regulation fails.
Looking to the first step, the Regulation creates two classes of Medicaid-eligible pregnant women: poor women who
need, and receive, coverage for medical services to continue their pregnancies to term, and poor women who need,
but are denied, coverage for medically necessary care to terminate their pregnancies. State classifications that treat
women who choose to carry to term differently from women who seek an abortion impair the fundamental right of
reproductive choice. Valley Hosp., 948 P.2d at 971-72.(18)
Because the classification burdens the fundamental right to reproductive choice, Appellants bear the burden to show
that 1) a compelling state interest justifies the intrusion on the fundamental right and 2) no less restrictive means
could advance that interest. Valley Hosp., 948 P.2d at 968-69; see also Breese v. Smith, 501 P.2d 159, 171 (Alaska
1972). But as detailed in Part I.A.2, none of the interests asserted by Appellants establish that the different treatment
of the two classes of pregnant women is narrowly tailored to serve a compelling state interest.
Courts of other states, looking to their constitutions' equal protection clauses, have not hesitated to strike similar
provisions that discriminate in the availability of Medicaid coverage between women carrying to term and women
seeking abortions. As the court in Montana explained,
The denial of equal protection is clear. The state has taken the class of indigent pregnant Medicaid eligible women
and divided them. One class, who needs medically necessary treatment (an abortion) [is] not entitled to help from
the state. However, another class (those women for whom childbirth is a medically necessary treatment) [is] entitled
to . . . help.
Jeannette R., slip op. at 22 (App. Ex. 8); see also Women's Health Ctr., 446 S.E.2d at 666-67 (App. Ex. 3); Right to
Choose, 450 A.2d at 934-37 (App. Ex. 4); Committee to Defend, 625 P.2d at 793 n.22 (App. Ex. 5); Doe v. Maher,
515 A.2d at 157-59 (App. Ex. 11). In Alaska, too, the equal protection clause forbids the discrimination now
inherent in the state's medical assistance program. See also Mem. from Legislative Affairs Agency, Div. of Legal
Servs., Abortions Funded Under Public Assistance Programs at 12 (July 7, 1992) (reasoning that "singling out
'elective' abortions for elimination under either the Medicaid or GRM program would violate an indigent woman's . .
. right to equal protection") [Exc. 145]; 1981 Op. Att'y Gen. Alas. No. 1, 1981 Alas. AG LEXIS 700 (Jan. 12, 1981)
This Court may affirm on the alternative ground that Appellants, in treating Medicaid-eligible women needing
abortions differently from those carrying to term, discriminate in violation of the equal protection clause.
C. By Denying Medicaid Coverage to Women Seeking Abortions that Are Medically Necessary, While
Providing All Covered Services to Men Whenever Medically Necessary, the State Violates the Civil Rights
Provision of the Alaska Constitution and the Human Rights Law.
Alaska's Constitution contains a specific prohibition against sex-based discrimination not found in the Federal
Constitution: "No person is to be denied the enjoyment of any civil or political right because of race, color, creed,
sex, or national origin." Art. I, ß 3. In addition, the state human rights law implementing this provision makes it
unlawful for the state to "deny to a person any . . . state . . . funds, services, goods, facilities, advantages, or
privileges because of. . . sex." AS 18.80.255(1). Section 18.80.200(b) further declares that one purpose of the state
human rights law, which prohibits sex and other discrimination, is "to eliminate . . . discrimination . . . because of . .
. pregnancy." The exclusion of medically necessary abortion services from Medicaid coverage violates these
Alaska's Medicaid program covers an array of medical services for eligible men, women, and children. Women and
men relying on Medicaid are similarly situated: they are in need of health care, unable to finance it themselves, and
eligible for Medicaid. But they are not similarly treated. Whereas all covered health services, including reproductive
health care, are afforded men when medically necessary, women are denied coverage for abortions that are
medically necessary. Indeed, among services covered by Medicaid, only abortion -- a service needed only by women
-- is denied coverage when necessary for a recipient's health.(19) See Weller Dep. at 54-57 [Exc. 264-67]. As to this,
there is no dispute. Nor can there be any dispute as to the discrimination: This disparate treatment singles out
women for adverse treatment; it reflects stereotypical notions of women's proper roles; and it hinders women's
efforts to achieve social and political equality. The Regulation therefore violates Alaska's constitutional and
statutory prohibition against discrimination based on sex.
Looking to their state constitutional prohibitions on sex discrimination, the courts of New Mexico and Connecticut
have invalidated statutory and regulatory schemes that, like Alaska's, denied coverage for medically necessary
abortions, while affording men covered services whenever medically necessary. As the Connecticut court reasoned
and the Supreme Court of New Mexico reaffirmed,"'Since only women become pregnant, discrimination against
pregnancy by not funding abortion when it is medically necessary and when all other medical[ly necessary]
expenses are paid by the state for both men and women is sex oriented discrimination.'" New Mexico Right to
Choose/NARAL, 975 P.2d at 856 (quoting Doe v. Maher, 515 A.2d at 159) (alteration in original) (App. Ex. 1).
Other courts, looking to their constitutional or statutory proscriptions against sex discrimination, have similarly held
that regulatory schemes that classify according to pregnancy or the capacity to become pregnant constitute per se
sex discrimination. See Colorado Civil Rights Comm'n v. Travelers Ins. Co., 759 P.2d 1358, 1363-64 (Colo. 1988)
(en banc) (holding exclusion of pregnancy from otherwise comprehensive health insurance program violates state
constitutional prohibition against sex discrimination); Bankers Life & Cas. Co. v. Peterson, 866 P.2d 241, 244
(Mont. 1993) (holding differential treatment of pregnancy constitutes sex discrimination); Minnesota Mining &
Mfg. Co. v. State, 289 N.W.2d 396, 400 (Minn. 1979) (same); Massachusetts Elec. Co. v. Massachusetts Comm'n
Against Discrimination, 375 N.E.2d 1192, 1198 (Mass. 1978) (same); Quaker Oats Co. v. Cedar Rapids Human
Rights Comm'n, 268 N.W.2d 862, 865 (Iowa 1978) (same).
Amicus UFI argues otherwise, urging this Court to hold that discrimination based on a "unique physical
characteristic" -- the capacity to become pregnant and to have an abortion -- does not constitute sex
discrimination.(20) In essence, it urges this Court to adhere to oft-criticized federal precedent interpreting the federal
equal protection clause to hold that, although only women become pregnant, pregnancy-related discrimination is not
sex-based. Geduldig v. Aiello, 417 U.S. 484 (1974); see Laurence H. Tribe, American Constitutional Law ß 16-29,
at 1578 (2d ed. 1988) (noting that Geduldig's reasoning has been soundly criticized as "so artificial as to approach
This Court cannot adhere to this reasoning. Most important, the Alaska Constitution, in marked distinction from the
federal, expressly prohibits discrimination against sex. Given this difference in language, "'it can only be concluded
that that right is broader in scope than that of the Federal Constitution.'" Valley Hospital, 948 P.2d at 968 (citation
omitted). In addition, the state human rights law reflects an express intent to eliminate discrimination based on
pregnancy. Moreover, a decision whether discrimination based on a "unique physical characteristic" constitutes a
violation of civil rights based on sex must, as the Supreme Court of New Mexico noted, turn on whether differential
treatment operates to the disadvantage of women. New Mexico Right to Choose/NARAL, 975 P.2d at 854 (App. Ex.
1). Here, it does.
As the New Mexico Supreme Court emphasized in squarely rejecting the argument now advanced by amicus UFI,
sex discrimination has deep historic roots in restrictions on reproduction: "'Since time immemorial, women's biology
and ability to bear children have been used as a basis for discrimination against them.'" Id. (quoting Doe v Maher,
515 A.2d at 159) (App. Ex. 1). The Connecticut court catalogued some of the discrimination.
For some outrageous examples of this, see Hoyt v. Florida, 368 U.S. 57, 62, 82 S. Ct. 159, 162, 7 L.Ed.2d 118
(1961) (statute exempting women from jury duty because they are "regarded as the center of home and family life");
Muller v. Oregon, 208 U.S. 412, 421 28 S. Ct. 324, 326, 52 L.Ed. 551 (1908) (statute that restricted the hours
women could work but did not place similar restrictions on men); Bradwell v. Illinois, 83 U.S. (16 Wall) 130,
141-42, 21 L.Ed.2d 422 (1872) (Bradley, J., concurring) (decision prohibiting women from the practice of law
because of "natural" differences between the sexes).
Doe v. Maher, 515 A.2d at 159 (App. Ex. 11). This history still produces harm. Disparity based on pregnancy in
employee insurance benefits amounts "essentially [to] . . . a lower wage on the basis of sex," Colorado Civil Rights
Comm'n, 759 P.2d at 1363, and the denial of disability benefits for pregnancy burdens women financially and
interrupts their employment, Minnesota Mining & Mfg. Co., 289 N.W.2d at 400; Massachusetts Elec., 375 N.E.2d at
The denial of assistance for medically necessary abortions violates these same principles of sex equality,
perpetuating the stereotype that women are, by nature, destined to "fulfill the noble and benign office of . . .
mother." Bradwell, 83 U.S. (16 Wall) at 141 (Bradley, J., concurring). The Regulation sets a woman's priorities for
her, with childbearing as her primary duty. The Regulation goes even further -- by denying care for medically
necessary abortions -- to reinforce the stereotype that women should sacrifice their physical and mental health to
become mothers. By limiting a woman's access to abortion, the Regulation also limits a woman's ability to achieve
political, social, and economic equality. As the California Supreme Court noted in invalidating a similar funding
restriction, the right to choose abortion is "central to a woman's control not only of her own body, but also to the
control of her social role and personal destiny." Committee to Defend, 625 P.2d at 792 (App. Ex. 5); see also
Henshaw •• 22-23 (detailing impact of parenthood on women's education and employment prospects) [Exc.
Alaska's constitutional and statutory prohibitions against sex discrimination require the eradication of just such
gender stereotypes and resulting inequality. In Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974), this Court struck the
common law rule that husbands, but not wives, could recover for loss of consortium. The rule, this Court
emphasized, was rooted in "outmoded concepts" -- the "'abject subservience of the wife to the husband, her legal
nonexistence, her degraded position as a combination vessel, chattel and household drudge.'" Id. at 463, 464
(citation omitted); see also id. at 465 & n.16. The state human rights law looks no more kindly on state action based
on outmoded gender stereotypes: "[U]nlawful discrimination may result . . . as an 'accidental byproduct of a
traditional way of thinking about females.'" Alaska USA Fed. Credit Union v. Fridriksson, 642 P.2d 804, 809 n.7
(Alaska 1982) (citation omitted).
Laws or regulations that discriminate against "suspect categories" are subject to strict judicial scrutiny, Herrick's
Aero-Auto-Aqua Repair Serv., 754 P.2d at 1114; State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978), and the Alaska
Constitution treats classifications based on sex, race, color, creed, and national origin as equally suspect, art. I, ß 3.
The Regulation cannot survive this scrutiny. There is no interest in health, in potential life, or in the public welfare
that justifies the differential treatment of women in the Medicaid program wrought by the Regulation. See supra Part
I.A.2. Nor can Appellants, as required under the statutory scheme, provide a legitimate, nondiscriminatory reason
for the differential treatment. Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 492 (Alaska
1980). Thus, this Court may affirm on the alternative ground that the elimination of coverage for medically
necessary abortions violates the state's constitutional and statutory ban on sex discrimination.
II. The Superior Court Correctly Held That It Has The Inherent Power To Order Redress Of The
The superior court correctly held that it had the power, and the duty, to vindicate the constitutional rights of Alaska's
citizens. This Court, too, should reject the extraordinary argument of the Appellants and their amici -- based on
distortions of the separation of powers doctrine -- that relief is impossible. Appellants argue that the judiciary is
powerless to remedy the constitutional violation at issue because the remedy affects "the province of the legislature
to decide policy issues and encourage certain behaviors by funding decisions." Appellants' Br. at 41-42; see also id.
at 27. As this Court explained in denying Appellants' motion for a stay, "It is well established that courts are
empowered to enter orders that are necessary to require constitutional compliance." Order at 2 n.3. The superior
court likewise explained:
Although the legislature has the exclusive appropriations power, this does not mean that the exercise of that power is
without limit and not subject to judicial scrutiny. Since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed 60
(1803), courts have imposed constitutional requirements on the exercise of executive and legislative power.
The Alaska Supreme Court has held that, when infringement of a constitutional right results from legislative action,
the court cannot defer to the legislature. Valley Hospital at 972. Other courts faced with the same issue have reached
the same conclusion.
Mem. & Dec. at 17 (citing cases) [Exc. 121].
Appellants essentially concede as much, acknowledging an exception to the separation of powers doctrine "where
there is an overriding constitutional imperative." Appellants' Br. at 27 & n.12. And that is precisely what the
superior court did: grant relief after finding such a constitutional imperative -- namely, that the discriminatory
treatment afforded Medicaid-eligible women seeking medically necessary abortions violates the Alaska
Constitution.(22) Appellants are now left to argue only that the exception does not apply where the relief orders
appropriations. The most fundamental notions of constitutional law require rejection of this proposition.
As the Massachusetts Supreme Judicial Court clearly stated, when confronted with the same argument in this very
More fundamentally, we have never embraced the proposition that merely because a legislative action involves an
exercise of the appropriations power, it is on that account immunized against judicial review. . . . "Without in any
way attempting to invade the rightful province of the Legislature to conduct its own business, we have the duty,
certainly since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60 (1803), to adjudicate a claim that a law
and the actions undertaken pursuant to that law conflict with the requirements of the Constitution."
Moe, 417 N.E.2d at 395 (citation omitted) (App. Ex. 6); see also Mandel v. Meyers, 629 P.2d 935, 940 (Cal. 1981)
("[A] variety of cases demonstrate that under some circumstances a court decision implementing constitutional
rights may result in the expenditure of funds in a manner that the Legislature has not contemplated and yet pose no
separation of powers problems whatsoever.").
In Alaska, too, "the judicial branch . . . has the constitutionally mandated duty to ensure compliance with the
provisions of the Alaska Constitution, including compliance by the legislature," Malone v. Meekins, 650 P.2d 351,
356 (Alaska 1982), as well as the executive, O'Leary v. Superior Court, 816 P.2d 163, 173 (Alaska 1991); see also
Hickel v. Southeast Conference, 846 P.2d 38, 65-66 (Alaska 1992) (summarizing cases). This duty extends to
review of the use of appropriations. See, e.g., DeLisio v. Alaska Superior Court, 740 P.2d 437, 439-43 (Alaska
Any contrary reasoning -- namely, Appellants' view that state action is insulated from judicial review when it
involves appropriations -- defies common sense. Indeed, such an approach would make a mockery of constitutional
rights. Suppose, for example, that instead of discriminating in the provision of Medicaid benefits by denying
coverage for medically necessary abortions, Appellants chose to discriminate by providing a benefit to white
residents, while expressly denying the benefit to Native Alaskan residents. If Appellants were correct that "[t]he
judiciary cannot intrude upon the legislature's power to make policy and appropriate funds," Appellants' Br. at 41, a
court would be powerless to act because the relief would conflict with the legislature's intent and require
expenditures. Indeed, under Appellants' construction, there could be no remedy whenever the State withholds
benefits based on race, sex, ethnicity, or any other impermissible ground.
But, as the superior court rightly held, our system of government does not countenance such a result. See Mem. &
Dec. at 16-18 [Exc. 120-22]. Indeed, the law is replete with cases in which courts order relief to remedy
constitutional violations, which relief conflicts with legislative intent and inevitably requires appropriations above
and beyond those provided. In Shapiro v. Thompson, for example, the Court held unconstitutional a statutory
scheme that excluded from welfare programs persons who had lived in the relevant jurisdiction for less than one
year. To remedy the violation, the Court struck the unconstitutional exclusion, effectively ordering appropriations by
adding to the list of eligible persons those new residents whom the legislature specifically intended not to benefit.
394 U.S. 618, 627-33 (1969). In Glover v. Johnson, 934 F.2d 703, 713 (6th Cir. 1991), the court rejected the
argument that an order directing parity of baccalaureate programs for men and women inmates was unenforceable
because it required the state to appropriate additional funds for a women's program. In Hook v. Arizona Department
of Corrections, 107 F.3d 1397, 1403-04 (9th Cir. 1997) (en banc), the court appointed a special master to oversee
compliance with a prison consent decree, and ordered the state to pay for the master's services -- over objections that
compliance would violate a state appropriations law. See also Graham v. Richardson, 403 U.S. 365 (1971) (striking
exclusion of aliens from benefit program and requiring coverage for previously excluded group); cf. Abraham v.
State, 585 P.2d 526, 533 (Alaska 1978) (remanding case "in order that the judiciary can take whatever steps are
deemed necessary to make the constitutional right . . . a reality"). Thus, constitutional guarantees -- the right of
reproductive choice no less than the right of welfare recipients to travel and the right of women to equal protection --
are not beyond redress by virtue of the legislature's appropriations power.
Accordingly, courts have ordered relief, even in the face of states protesting that compliance with the constitution
will be costly. As one court noted, "[i]nadequate resources no longer can excuse the denial of constitutional rights."
Todaro v. Ward, 565 F.2d 48, 54 n.8 (2d Cir. 1977); see also Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986) (affirming
order directing state agency to commit funds necessary to remedy plaintiff's constitutional violations). Indeed, the
Supreme Court has gone so far as to "require [defendants] to exercise the power that is theirs to levy taxes to raise
funds adequate to reopen, operate, and maintain without racial discrimination a public school system." Griffin v.
Prince Edward County Sch. Bd., 377 U.S. 218, 233 (1964); see also Missouri v. Jenkins, 495 U.S. 33, 55 n.20
(1990) (proper to impose upon states costs of securing prospective compliance with a desegregation order).
This Court, too, has remedied constitutional violations where the relief required the expenditure of funds that had
not been appropriated. For example, in DeLisio, this Court held that a court appointment compelling counsel to
represent an indigent defendant for "nominal" compensation ($50 for a misdemeanor case and $150 for a felony
case) constituted an unconstitutional taking. 740 P.2d at 443. As relief, the Court ordered the payment of "just
compensation," which the Court construed to mean "the compensation received by the average competent attorney
operating on the open market." Id. The relief thus inevitably required expenditures -- a fact that did not stand in the
way of the Court redressing the constitutional violation.
Looking to this precedent, there can be no question about the propriety of the superior court's relief. Indeed, as in
Shapiro and Glover, the remedy does not order an appropriation: the legislature made an initial appropriation, and
the court requires only that, having made an appropriation, the legislature must abide by the constitution in the rules
governing the appropriation. Hence, the Court in Shapiro did not order the legislature to subsidize basic living
expenses, but directed that once the legislature chose to confer such benefits, it could not exclude new residents; the
court in Glover did not order the legislature to subsidize inmates' educations, but directed that any such programs
may not favor men; and the superior court here did not order the State to subsidize the exercise of a woman's
decision whether or not to continue a pregnancy to term, but merely directed that it dispense the funds it has
appropriated for pregnancy-related services in a nondiscriminatory fashion. Here, as in DeLisio, the relief is in this
Thus, it is simply not the case that separation of powers insulates state action from the judiciary's power and duty to
protect citizens from unconstitutional laws. Even the most carefully constructed funding scheme cannot stand where
it violates constitutional rights. Indeed, in each of the twelve states in which a court has considered this exact issue,
the court has exercised its judicial power and required the state to provide nondiscriminatory coverage of medically
necessary abortions in its Medicaid program. [See supra n. 9.] The courts have done so in the face of express
statutory and regulatory prohibitions on this use of state dollars, and not one has found the issue of appropriations
leaves it powerless to order relief. See, e.g., Moe, 417 N.E.2d at 395 (expressly rejecting separation of powers
argument) (App. Ex. 6).(24) As the California Supreme Court made clear, where, as in Alaska, "a woman's right to
choose whether or not to bear a child is explicitly afforded this constitutional protection, . . . the question of whether
an individual woman should or should not terminate her pregnancy is not a matter that may be put to a vote of the
Legislature." Committee to Defend, 625 P.2d at 798 (App. Ex. 5); see also Valley Hosp., 948 P.2d at 972 ("[W]e
cannot defer to the legislature when infringement of a constitutional right results from legislative action.").
In a last ditch effort to avoid the relief in this case, Appellants charge that the state's Medicaid statutes and other
budgetary provisions prohibit them from complying with the superior court order. Appellants argue that, for
numerous technical reasons, these provisions prohibit the use of any state dollars for any abortion for which federal
reimbursement is unavailable. But their actions belie their arguments.
For example, Appellants argue that no state dollars appropriated to the Medicaid program can be used for any
service for which federal reimbursement is unavailable, both because the Medicaid enabling statute, AS 47.07.030,
is so conditioned, and because AS 47.07.040 provides that the Department "may make . . . arrangements or
. . . to secure . . . optimum federal payment." Yet Appellants admit that "in actual practice," the State does indeed
spend some Medicaid dollars on services for which federal reimbursement is unavailable. Appellants' Br. at 36 n.23;
see also Weller Dep. at 72-73 (indicating that where ordered by hearing officer, Department pays for service not
covered by Medicaid) [Exc. 275-76]. Appellants also admit that, under these same statutes, they have routinely used
GRM funds -- for which there is no federal reimbursement -- to cover abortions for which they would have received
federal reimbursement under the Medicaid program. For example, although federal Medicaid reimbursement was
available as early as fiscal year 1994 for abortions where the pregnancy resulted from rape or incest, Planned
Parenthood Affiliates v. Engler, 73 F.3d 634, 636 (6th Cir. 1996), the state did not modify its regulation to make
these abortions reimbursable under Medicaid until 1998. Appellants' Br. at 5; see also Weller Dep. at 16-17
(indicating that the state routinely paid with GRM funds for abortions for which federal reimbursement was
available) [Exc. 61-62]. The reference in AS 47.07.040 to "secur[ing] . . . optimum federal payment" did not
foreclose those agency actions. Appellants also admit that in fiscal year 1998, when the same Medicaid enabling
statute was in force, the Department transferred general fund Medicaid dollars to cover a shortfall in the GRM
program. Weller Dep. at 30-32 [Exc. 254-56]. But there was no federal match for GRM services. Id. at 13 [Exc. 58].
Therefore, the State lost the federal dollars it would have received had it spent those transferred funds on
federally-matched Medicaid services rather than on GRM services. Thus, for all Appellants' protestations, the fact
remains that some dollars the legislature has allocated for Medicaid services are spent on services for which federal
reimbursement is not available.(25) In other words, the strictures Appellants point to now to defeat the constitutional
mandate do not in fact function in the constricting manner Appellants claim. (26)
Nor can the State hide behind the supposed fiscal disaster that would result from compliance with the Constitution.
Most important, as explained above, the State is not relieved of its obligation to remedy a constitutional violation
even if the relief entails costs. Moreover, Appellants' arguments are simply specious. According to their
calculations, restoring nondiscriminatory funding for medically necessary abortions would not take money away
from other services, but would in fact save money, making more state money available for other services. DHSS
Fiscal Note [Exc. 176]; see also supra Statement of the Case. Indeed, in the first year alone of eliminating coverage,
the State estimated an increased drain on state funds of more than $200,000, and projected that the cost of denying
coverage would increase annually. See supra n. 6.
Hence, if the State were to use the money allocated for additional childbirth expenses to cover medically necessary
abortions, it would have over $200,000 in extra state funds to spend on additional, reimbursable services. There is
thus no logic in Appellants' assertion that the State "would give up both the reimbursable service . . . and the ability
to access federal matching funds for that reimbursable service." Appellants' Br. at 36-37. For the only reimbursable
service given up is a service that no one would need or seek: birth and infant care for those 35% of women who
obtain medically necessary abortions, but who -- if denied funding -- would carry to term.(27) Hence, there are no
actual, sought services -- reimbursable or otherwise -- that the State would have to forego in order to comply with
the Alaska Constitution.(28)
Thus, none of Appellants' separation of powers arguments saves the Regulation from judicial review nor from
remedy. The discrimination against women seeking medically necessary abortions cannot stand, any more than
could the denial of benefits to new state residents, or to Native Alaskan residents. That the issue involves
appropriations affords no immunity from redress, and the State cannot hide behind either a parade of statutory and
budgetary impossibilities of its own, careful creation, or a trumped-up claim of fiscal disaster.
For the reasons set forth above, Appellees respectfully request that this Court affirm the decision of the superior
court declaring the Regulation unconstitutional, and permanently enjoining its enforcement, insofar as it denies
coverage for medically necessary abortions.
Respectfully submitted this 10th day of February, 2000.
_______________________________ Christine Schleuss
Cooperating Counsel to the
Alaska Civil Liberties Union
Suddock & Schleuss
500 L Street, Suite 300
Anchorage, AK 99501
Reproductive Freedom Project
125 Broad Street, 18th Floor
New York, NY 10004
*Admitted Pro Hac Vice
1. Appellees use the term "medically necessary" rather than "therapeutic" abortion because medically necessary is
the general standard for coverage of medical care under Medicaid. For all intents and purposes, however, the terms
are synonymous. See 7 AAC 47.290(8) (defining "therapeutic abortion" to include those certified as "medically
necessary . . . to ameliorate a condition harmful to the woman's . . . health").
2. Although the procedure for authorization and the eligibility standards may have changed over the years, contrary
to Appellants' suggestion, funding for medically necessary abortions has been continuous, and has not been subject
to a "payback" in any recent time. See Weller Dep. at 14-15 [Exc. 59-60].
3. Reference is to the paragraph numbers of affidavits submitted by Appellees to the superior court.
4. The court's findings in this regard were amply supported. See Mem. & Dec. at 5-6 (citing physician testimony)
[Exc. 109-10]; see also Dukeminier •• 10-12 [Exc. 217-28]; Lemagie • 5 [Exc. 246-47]; Rollins • 7 [Exc. 229];
Whitefield • 13 [Exc. 238]; Henshaw •• 19-21 [Exc. 208-10].
5. If state funding was continued for medically necessary abortions, associated transportation costs would also be
covered. See 7 AAC 43.005(b)(8).
6. The Department projected expenditures in fiscal year 1999 of $1,259,100 of solely state funds for additional
pregnancy-related services if funding for medically necessary abortions was eliminated. DHSS Fiscal Note [Exc.
176]. For that same year, the Department projected $1,048,200 in costs to the state for coverage of medically
necessary abortions for Medicaid-eligible women. Deposition of Randall Super, Division of Medical Assistance,
Administrative Manager, DHSS [hereinafter Super Dep.] at 24, 28 [Exc. 283-84].
7. On October 19, 1999, the court also granted Appellees' motion for attorneys' fees and costs. Order at 8 [Exc. at
133]. Appellants have not appealed this decision and have thus abandoned such claims. See, e.g., Tenala, Ltd. v.
Fowler, 921 P.2d 1114, 1123-24 (Alaska 1996).
8. In this respect, Appellants and their amici invoke inopposite examples. Neither the logic of the decision below nor
its defense here in any way would require the State to subsidize the use of cannibus, contraceptives, firearms or
other activities they enumerate.
9. 9 New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. denied, 526 U.S. 1020
(1999); Women of Minn. v. Gomez, 542 N.W.2d 17 (Minn. 1995); Women's Health Ctr. v. Panepinto, 446 S.E.2d
658 (W. Va. 1993); Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982); Committee to Defend, 625 P.2d 779; Moe,
417 N.E.2d 387; Planned Parenthood Ass'n v. Department of Human Resources, 663 P.2d 1247 (Or. Ct. App. 1983),
aff'd on statutory grounds, 687 P.2d 785 (Or. 1984); Jeannette R. v. Ellery, No. BDV-94-811 (Mont. Dist. Ct. May
22, 1995); Doe v. Wright, No. 91 CH 1958 (Ill. Cir. Ct. Dec. 2, 1994); Roe v. Harris, No. 96977 (Idaho Dist. Ct.
Feb. 1, 1994); Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986); Doe v. Celani, No. S81-84CnC (Vt. Super. Ct.
May 26, 1986); but see Rosie J. v. North Carolina Dep't of Human Resources, 491 S.E.2d 535 (N.C. 1997); Doe v.
Department of Social Servs., 487 N.W.2d 166 (Mich. 1992); Fischer v. Department of Pub. Welfare, 502 A.2d 114
(Pa. 1985). These cases are compiled for the Court in Appellees' Appendix of Cases [hereinafter App. Ex. _] as
Exhibits 1-15, respectively.
10. Committee to Defend, 625 P.2d 779 (App. Ex. 5); Jeannette R., No. BDV-94-811 (App. Ex. 8); Wright, No. 91
CH 1958 (App. Ex. 9); see also Armstrong v. State, 989 P.2d 364 (Mont. 1999) (holding state's express right of
privacy broader than federal and striking abortion restraint upheld under federal law).
11. 1981 Op. Att'y Gen. Alaska No. 1, 1981 Alaska AG LEXIS 700 (Jan. 12, 1981); 1978 Op. Att'y Gen. Alas. No.
15, 1978 Alas. AG LEXIS 489 (Mar. 31, 1978); see also Mem. From Legislative Affairs Agency, Div. of Leg.
Servs., Abortions Funded Under Public Assistance at 8-12 (July 7, 1992).
12. In urging reversal, Appellants rely heavily on the Michigan decision adhering to federal analysis. That decision,
however, cannot guide this Court: The Michigan Constitution has no express constitutional protection for privacy,
and that court has never recognized any state constitutional protection for reproductive choice, let alone greater
protection than the Federal Constitution. See Doe v. Department of Social Servs., 487 N.W.2d at 174 (App. Ex. 14).
Moreover, contrary to Appellants' claim, the court in that case expressly held that the state equal protection clause
does not provide broader protection than the federal. Id. at 174-75.
13. Amicus UFI in no way defeats this point by pointing out that the State does not subsidize a parent's choice to
send a child to private school. The Alaska Constitution expressly prohibits the State from providing any public funds
for the direct benefit of any private schools. Art. VII, ß 1; see also Sheldon Jackson College v. State, 599 P.2d 127
(Alaska 1979). In contrast, the Constitution expressly protects privacy, Art. I, ß 22, and this Court has held
unconstitutional state action that injects value judgments into the decision whether to continue a pregnancy. Valley
Hosp., 948 P.2d at 972 n.8. Even absent these differences, the analogy is inapt because, as the California Supreme
Court explained, "the State, in providing a benefit such as public education, is not thereby compelled to pay the costs
incurred by those who choose to relinquish the public benefit in favor of a comparable privately funded benefit."
Committee to Defend, 625 P.2d at 789 (App. Ex. 5). Thus, the state need no more subsidize private school than
subsidize an individual's choice to opt out of the Medicaid program for private physician care.
14. Appellants and their amici stunningly attempt to discount this proof of harm, arguing that because only
one-third, and not the majority, of women might be harmed -- the stricture of the Regulation is somehow
permissible. Their standard for a finding of unconstitutionality -- that more than 50% of women must be harmed -- is
unsupported, and unsupportable. See Valley Hosp., 948 P.2d 963 (striking hospital policy without proof that more
than 50% of women in region would be unable to obtain an abortion in light of policy). Moreover, in the face of the
Alaska Constitution's protection of reproductive choice as a fundamental right, id. at 968-69, Appellants' arbitrary
"50% rule" is an absurdity. The Alaska Constitution does not tolerate the violation of the fundamental rights of
nearly 300 women every year, and the result would be no different -- no more emphatic -- if the number were 500,
in satisfaction of the "50% rule." In this respect, it is of no matter that the superior court states that "most women"
denied abortion coverage will be unable to get care, Mem. & Dec. at 5 [Exc. 109], when Appellants had projected
that approximately one-third would be obstructed.
15. The superior court's finding is in accord with every other court to have considered the fiscal impact of a similar
discrimination in funding. See, e.g., Moe, 417 N.E.2d at 403 n.20 (collecting cases) (App. Ex. 6); see also New
Mexico Right to Choose/NARAL, 975 P.2d at 857 (App. Ex. 1); Committee to Defend, 625 P.2d at 794 (App. Ex.
5); Maher, 515 A.2d at 151 n.34 (App. Ex. 11).
16. Even if the Regulation saved the state money, fiscal concerns could not save it, as fiscal concerns simply cannot
justify an invasion of fundamental constitutional rights. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 633 (1969);
Herrick's Aero-Auto-Aqua Repair Serv. v. State, 754 P.2d 1111, 1114 (Alaska 1988).
17. Finally, no interest the legislature might assert in administrative concerns -- namely the alleged lack of
regulatory overview for abortion services -- can justify the denial of coverage for medically necessary abortions. See
CCS HB 325 (brf sup maj fld H/S) (June 30, 1998) [Exc. 39]. Such administrative concerns -- even if not a pretext --
can never justify impairment of fundamental constitutional rights. See, e.g., Commercial Fisheries Entry Comm'n v.
Apokedak, 606 P.2d 1255, 1266 & n. 45 (Alaska 1980).
18. Amicus UFI mischaracterizes Appellees' equal protection claim as a claim based on discrimination on account of
economic status. By this logic, the right at issue in Alaska Pacific Assurance Company would similarly be merely
economic. That case involved a workers' compensation scheme by which workers who remained in the state
received greater benefits than did workers who left. Even though the claim rested on the disparity in benefits, this
Court understood that the right at issue was not an economic one, but the right of interstate migration. 687 P.2d at
271. Similarly, the interest at stake in this case is not a mere economic one simply because disparate benefits are at
issue. Thus, the cases cited by amicus UFI applying rational basis review to economic legislation are inapposite. See
Amicus UFI Br. at 29.
19. There are a few health services, such as liver transplants and hospice care, that by their very nature are covered
only when lifesaving because they are appropriate only when a patient is facing death. Other services are restricted
in that they require prior authorization, or are limited by age or number of treatments. But no covered service for
men is provided only when lifesaving and denied when otherwise medically necessary. Weller Dep. at 54-57, 77-79
[Exc. 74-75, 264-67, 277].
20. The cases Amicus UFI cite for this proposition are unpersuasive. See Amicus UFI Br. at 35 n.16. Three have
been followed by cases expressly holding that pregnancy discrimination is sex discrimination. Colorado Civil Rights
Comm'n, 759 P.2d at 1363-64; Bankers Life & Cas. Co., 866 P.2d at 244; Massachusetts Elec. Co., 375 N.E.2d at
1198. Cases from these states, including the recent Montana lower court decision upon which amicus UFI relies, are
thus inapt. Amicus UFI Br. at 38. Of the cases that remain, three apply a standard of review lower than strict
scrutiny, State v. Bell, 377 So.2d 303 (La. 1979); State v. Fletcher, 341 So.2d 340 (La. 1976); Finley v. State, 527
S.W.2d 553 (Tex. Crim. App. 1975); one, Cox v. Cox, 532 P.2d 994 (Utah 1975), has been implicitly overruled,
Pusey v. Pusey, 728 P.2d 117, 119-20 (Utah 1986); and six uphold sex-specific rape or statutory rape statutes, and
are thus inopposite in light of Alaska's adherance to sex-neutrality in rape laws. Compare AS 11.41.410; Plas v.
State, 598 P.2d 966 (Alaska 1979); with State v. Bell, 377 So.2d 303 (La. 1979); State v. Rivera, 612 P.2d 526
(Haw. 1980); State v. Fletcher, 341 So.2d 340 (La. 1976); People v. Boyer, 349 N.E.2d 50 (Ill. 1976); Brooks v.
State, 330 A.2d 670 (Md. Ct. Spec. App. 1975).
21. Notwithstanding the suggestion of Amicus UFI, neither Plas v. State, 598 P.2d 966 (Alaska 1979), nor the article,
The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971),
endorse discrimination based on unique physical characteristics. Amicus UFI Br. at 36. The Court in Plas states that
any distinctions in criminal law based on sex must have "a basis in the actual conditions of human life." 598 P.2d at
968. It hardly follows, however, that every such distinction is constitutional, particularly where the distinction is
predicated on and perpetuates stereotypes. The article, moreover, cautions that the unique physical characteristics
principle could be misused in order to evade, moreover, sex equality and, indeed, "to justify laws that in overall
effect seriously discriminate against one sex." 80 Yale L.J. at 894; see also New Mexico Right to Choose/NARAL,
975 P.2d at 854-55 (App. Ex. 1).
22. Appellants gain nothing by noting that on the motion for a temporary restraining order, the superior court found
that Appellants would be harmed by an erroneous grant of an injunction. Appellants' Br. at 37-38. That finding was
accompanied by the court's recognition that in the context of a final decision, it could "determine that an expenditure
of funds is necessary for constitutional reasons." Order at 5 [R. 12]. That is precisely what the superior court
23. Attempting to avoid the import of this caselaw, Appellants cite California cases for the proposition that courts
may not order appropriations, but these are readily distinguishable. As noted above, the superior court did not order
an appropriation. Moreover, none of the cases Appellants cite involve individual constitutional rights, let alone
violations of such rights occasioned by the state's decision to appropriate funds -- but in a discriminatory fashion.
See Estate of Cirone v. Cory, 234 Cal. Rptr. 749 (Cal. Ct. App. 1987) (rejecting claim that budget act appropriation
limiting hourly rate for attorneys' fees violated separation of powers); City of Sacramento v. California State
Legislature, 231 Cal. Rptr. 686 (Cal. Ct. App. 1986) (affirming dismissal of case against Legislature seeking order
directing reimbursement, pursuant to constitution, of costs city incurred complying with state mandated
unemployment insurance program). The cases cited by Amicus Legislature, see Amicus Legislature Br. at 15-16,
25-26, similarly do not concern constitutional rights, let alone relief for violations of individual rights resulting from
discriminatory state action.
24. Ironically, Massachusetts is one of the states whose constitutions Amicus Legislature claims prohibit the
judiciary from ordering relief when such order involves appropriations. Amicus Legislature Br. at 17. Indeed,
including Massachusetts, four of the cases Amicus Legislature cites are from states that have considered the exact
issue here and ordered the very relief provided here. Right to Choose, 450 A.2d 925 (App. Ex. 4); Committee to
Defend, 625 P.2d 779 (App. Ex. 5); Moe, 417 N.E.2d 387 (App. Ex. 6); Jeannette R., No. BDV-94-811 (App. Ex.
25. In fact, although Medicaid funds are now in a budget request unit [BRU] separate from CAMA, GRM remains
codified in the Alaska statutes and, although unfunded, in the same BRU as Medicaid. AS 47.25.120-.300; Fiscal
Year 1999 Operating Budget [Exc. at 43]. State Medicaid dollars therefore could presumably be transferred to
GRM, just as in 1998, except now for the specific purpose of providing nondiscriminatory funding for medically
necessary abortions. Appellants offer no support for their theory that state Medicaid dollars cannot be transferred to
GRM because it "has no allocation in the budget." Appellants' Br. at 33.
26. Appellants' reliance on these statutes is unpersuasive for other reasons. For example, the Medicaid enabling
statute does not expressly prohibit the State from covering medically necessary abortions with state funds, nor does
it or any other statute expressly limit Medicaid payments to federally matched services. See AS 47.07.030; cf. New
Mexico Right to Choose/NARAL, 975 P.2d at 857-58 (rejecting argument that enabling statute prohibited
nondiscriminatory coverage of abortion) (App. Ex. 1); Boley v. Miller, 418 S.E.2d 352, 358 (W. Va. 1992) (same).
Nor does AS 47.07.020, on which Appellants rely, Appellants' Br. at 30, bear at all on which services are provided
in the program, as it concerns uniquely who is eligible for Medicaid, not what services may be provided.
Even assuming the funds were somehow restricted -- whether by appropriations measures or the enabling statute --
the solution would not be to declare the superior court's order invalid, but to relax those restrictions as well. See,
e.g., Gilmore v. Alaska Workers' Compensation Bd., 882 P.2d 922, 925, 930 (Alaska 1994). To reason otherwise
would frustrate principles of judicial economy -- leaving Appellees to challenge the statute on the same ground and
with the same evidence as here presented -- and thus elevate form over substance.
27. It is true that the State would then receive a smaller absolute number of federal dollars. But surely AS 47.07.040
is designed to save state money, not to mandate that the State spend more state dollars than necessary so as to
receive as many federal dollars as possible.
28. Appellants' claimed harm to the Medicaid program also does not rise to the dire level they suggest. As the
Department's Administrative Manager testified, the entire projected budget for abortion services for fiscal year 1999
was $1,048,200. Super Dep. at 24, 28 [Exc. 283-84]. To put that in context, he also testified that each week, the
Department writes checks in excess of $6 million for Medicaid services. Id. at 21-22 [Exc. 281-82]. In other words,
the entire annual budget for abortion services constitutes less than 20% of the Department's weekly expenditure on
the Medicaid program. Even Appellants' worst-case-scenario -- a "$3 million impact on the Medicaid program,"
Appellants' Br. at 32 -- is thus 50% of the weekly output. Even this supposed "$3 million impact" does not translate
into a loss of services: Because Medicaid is an entitlement program, liabilities incurred in a year in which money is
not available are carried forward to the next. Super Dep. at 19-21 [Exc. 279-81]. At the end of fiscal year 1998, for
example, the Department had claims totaling $7.7 million for which it did not have sufficient funds. See id. Faced
with the difference -- more than twice the asserted "impact" here -- Appellants did not curtail services, but simply
paid the claims from the fiscal year 1999 budget. Id.