ANTI-CHOICE LAWS
Abortion Ban
AFTER 12 WEEKS
Alaska's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks. Alaska Stat. § 18.16.050 (Enacted 1997).
A court held that Alaska's ban is unconstitutional under the state constitution because the ban is "void for vagueness" and has issued a permanent injunction prohibiting its enforcement. Planned Parenthood of Alaska, Inc. v. State, No. 3AN-97 6019 CIV (Alaska Super. Ct. Mar. 13, 1998), appeal dismissed, No. S-08610 (Alaska July 17, 2000). The U.S. Supreme Court held that a similar ban that lacks an exception to protect a woman's health and that bans more than one procedure places an undue burden on a woman's right to choose and is unconstitutional. Stenberg v. Carhart, 530 U.S. 914 (2000).
Alaska's unconstitutional and unenforceable ban makes the performance of any abortion procedure that falls within a broad definition a felony, unless it is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury and no other medical procedure will suffice. Alaska Stat. § 18.16.050 (Enacted 1997).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling
Alaska law subjects women seeking abortions to biased counseling requirements. A woman may not obtain an abortion until she is advised of the medical implications and the possible emotional and physical effects of the procedure. Alaska Admin. Code tit. 12, § 40.070.
Under a law passed in 2004, a woman may not obtain an abortion until after the attending physician, a member of the physician's staff who is a licensed health care provider, or the referring physician has: (1) informed the woman in private of the name of the physician who will perform the abortion and the probable gestational age of the fetus and (2) provided the required state-prepared materials or has described the nature and risks of undergoing the proposed abortion procedure.
The 2004 law further provides that the state-prepared materials must be on the internet and must: (1) provide a geographically indexed, comprehensive list of names and telephone numbers of public and private agencies and services available to assist the woman with her reproductive choices throughout pregnancy including counseling services related to adoption, family planning, and abortion; (2) provide information concerning the eligibility of medical assistance benefits for prenatal care, childbirth, neonatal care, abortion services, and contraception; (3) describe the process by which a woman may obtain child support; (4) include objective and unbiased information approved by the State Medical Board that: (a) describes fetal development at two-week intervals from fertilization to full-term, including links to photographs of the fetus at four-week intervals, and information on the possibility of survival; (b) describes abortion methods and the medical risks associated with each method and the physical and psychological effects of having an abortion; (c) describes the medical risks associated with pregnancy and childbirth and the possible physical and psychological effects of carrying a fetus to full-term; (d) provides information on the harmful effects of alcohol, tobacco, and illegal drugs during pregnancy; and (e) provides information on the different types of contraceptive choices, including abstinence and natural family planning.
The 2004 law allows the attending physician to bypass these requirements only in cases of medical emergency, rape, or incest. "Medical emergency" is defined as a medical condition of the woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function." Alaska Stat. §§ 18.05.032 (Enacted 2004), 18.16.010 (Enacted 1970; Renumbered 1978; Reorganized 1986; Last Amended 2004), 18.16.060 (Enacted 2004).
In September of 2004, sixteen Alaskan obstetricians and gynecologists sent a letter protesting the state-prepared internet website to lawmakers, the governor, the Supreme Court and doctors in their field. Colleen Murphy, an obstetrician who signed the letter, said the website's real purpose would be to deter women from getting abortions and that doctors already ensure that pregnant women are fully informed about risks. Lisa Demer, Website on Abortion Gets One Volunteer: Deadline Missed: The Medical Board Needs Five Doctors for a Panel, Anchorage Daily News, Nov. 13, 2004. Although many doctors initially refused to participate in producing the website, a compromise was reached and in March 2005, materials created by a panel that included pro-choice physicians became available on the Alaska Department of Health's website. Lisa Demer, Abortion Web Site Doctors Selected; Panel: Five Ob-Gyns Will Help Create the Informational Site, Anchorage Daily News, Nov. 25, 2004, at B1; Alaska Department of Health and Social Services, Making a Decision About Your Pregnancy, http://www.hss.state.ak.us/dph/wcfh/informedconsent/ (last visited Apr. 8, 2005).
The doctors who produced the website have agreed to add the following language to the website: "[T]he American College of Obstetricians and Gynecologists has found that early studies were inconsistent and difficult to interpret and that recent studies argue against a link between an abortion and a subsequent increase in breast cancer." Website to Include Anti-Abortion Concerns, AP, Apr. 30, 2005.
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Alaska allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals and hospitals.
What does the refusal clause allow? No person or hospital may be required to participate in an abortion. In addition, no person or hospital may be liable for refusing to participate in an abortion.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Has a court considered the constitutionality of this refusal clause? Yes. The Alaska Supreme Court has ruled that this refusal clause is unconstitutional under the state constitution to the extent that it applies to "quasi-public" institutions and has issued a permanent injunction prohibiting enforcement of a "quasi-public" hospital's policy barring the performance of abortion. Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997). In addition, the Alaska Attorney General has issued two opinions stating that under the state constitution, non-sectarian hospitals built or operated with public funds may not refuse to offer abortion services. Alaska Op. Att'y Gen. No. 15 (Mar. 31, 1978); Alaska Op. Att'y Gen. No. 8 (Feb. 10, 1978).
Alaska Stat. § 18.16.010 (Enacted 1970; Renumbered 1978; Reorganized 1986; Last Amended 2004).
Restrictions on Young Women's Access to Abortion
Alaska law restricts young women's access to abortion.
Is the law enforceable? No. The Alaska Supreme Court held that this law is unconstitutional and unenforceable because it violates young women's right to privacy under the Alaska Constitution. Moreover, the Court held that the law did not further a compelling state interest, using the least restrictive means. State of Alaska v. Planned Parenthood, Nos. S-11365, S-11386, slip op.(Alaska Nov. 2, 2007).
Who is considered a minor? A young woman under the age of 17 who is unmarried, not a member of the armed services or employed and self-subsisting, or otherwise emancipated.
What is required - parental consent or parental notice? Consent.
Who must provide consent? One parent.
Are there other trusted adults who may provide consent instead? No.
What is the process for obtaining consent? A young woman may not obtain an abortion unless the attending physician secures the written consent of one parent.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if a medical emergency exists. A medical emergency is defined as a medical condition of the young woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating, by clear and convincing evidence, that she is mature and well informed enough to make an intelligent decision, that there is evidence that she has been subject to physical or sexual abuse or to a pattern of emotional abuse by one or both parents, or that parental consent is not in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. A lower state court ruled that this law is unconstitutional under the state constitution, but the state supreme court reversed this ruling and sent the case back to the lower court for an evidentiary hearing to determine the law's constitutionality. Planned Parenthood of Alaska, Inc. v. State, No. 3AN-97-6014 CI (Alaska Super. Ct. Feb. 25, 1998) (summary judgment), (Alaska Super. Ct. Oct. 5, 1998) (final amended judgment), aff'd in part, rev'd in part and remanded, 35 P.2d 30 (Alaska 2001). On remand, the trial court found the law unconstitutional and unenforceable. Planned Parenthood v. State, 3AN-97-6014 C1 (Alaska Super. Ct. Oct. 13, 2003). The Alaska Supreme Court affirmed the lower court decision. State of Alaska v. Planned Parenthood, Nos. S-11365, S-11386, slip op. (Alaska Nov. 2, 2007).
Other information about the law: None.
Alaska Stat. §§ 18.16.010(a)(3) (Enacted 1970; Renumbered 1978; Reorganized 1986; Last Amended 2004), .020 (Enacted 1997), .030 (Enacted 1997), .090(2) (Enacted 1997).
Targeted Regulation of Abortion Providers (TRAP)
Alaska imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Alaska places medically unnecessary restrictions on where abortions may be performed.
Alaska has an unconstitutional requirement that all abortions must be performed in a hospital, in a facility approved for that purpose by the state, or in a hospital operated by the federal government or one of its agencies. Alaska Stat. § 18.16.010(a)(2) (Enacted 1970; Renumbered 1978; Reorganized 1986; Last Amended 2004). Regulations further state that ambulatory surgical facilities (the only non-hospital facilities receiving state-approval to perform abortions) may not perform abortions after the first trimester; as a result, post-first trimester abortions must be performed in a hospital. Alaska Stat. § 08.64.105 (Enacted 1970); Alaska Admin. Code tit. 7, § 12.370.
The Alaska Attorney General has concluded that the requirement that all abortions be performed in a hospital or other approved facility is invalid since it does not exclude the first trimester of pregnancy. Alaska Op. Att'y Gen. No. J-66-816-81 (Oct. 7, 1981) (citing Sendak v. Arnold, 429 U.S. 968 (1976)).
The Alaska Attorney General has further stated that certain aspects of the regulation on first trimester abortions are "obviously problematic." Alaska Op. Att'y Gen. No. 366-028-85 (July 24, 1984).
Although the Alaska Attorney General has not issued an opinion concerning the second trimester hospitalization requirement, such a requirement is unconstitutional and unenforceable under a U.S. Supreme Court case, which held that a second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose an abortion. Akron v. Akron Ctr. for Reprod. Health 462 U.S. 416 (1983).
Restrictions on Who May Perform Abortions
Alaska prohibits certain qualified health care professionals from performing abortions.
Only a physician or surgeon licensed by the state may perform an abortion. Alaska Stat. § 18.16.010(a)(1) (Enacted 1970; Renumbered 1978; Reorganized 1986; Last Amended 2004).
The Alaska Attorney General has issued an opinion stating that this law is constitutional. Alaska Op. Att'y Gen. (Oct. 21, 1976).
PRO-CHOICE LAWS
Emergency Contraception
PHARMACY ACCESS TO EMERGENCY CONTRACEPTION (EC)
Alaska explicitly allows pharmacists to provide emergency contraception (EC) directly to women without a prescription. A pharmacist may dispense EC to a woman under a written protocol established and approved by an authorized prescriber, defined as a physician or advance practice nurse, and approved by the Alaska Pharmacy Board.
Alaska Stat. § 08.80.480 (Enacted 1955; Last Amended 1996); Alaska Admin. Code tit. 12, § 52.240; see, e.g., Emergency Contraceptive Collaborative Agreement Protocol, at http://www.go2ec.org/ModelAlaska.htm (last visited Aug. 30, 2007).
Low-Income Women's Access to Abortion
Alaska allows women eligible for state medical assistance for general health care to obtain public funds for medically necessary abortions. An abortion is considered medically necessary if the pregnant woman's health is endangered by the pregnancy. State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001); Alaska Medical Assistance Program, Physician Provider Billing Manual, § 1-2, (Rev. Aug. 2004) at https://alaska.fhsc.com/Downloads/Providers/BillingManual_Physician.pdf.
In 2000, the Alaska legislature enacted an unconstitutional and unenforceable statute eliminating funding for "therapeutic abortions," a category which included abortions performed to ameliorate a condition harmful to the woman's health. Alaska Admin. Code tit. 7, §§ 47.200(a)(4) (E)-(F) (includes therapeutic abortion amongst funded services), 47.290(8) (defines therapeutic abortion). The statute denies Medicaid assistance for medically necessary abortions, unless a pregnant woman is at risk of dying or her pregnancy resulted from rape or incest. Alaska Admin. Code tit. 7, § 43.140.
A court found that the 2000 statute violated the Alaska Constitution because it prohibited funding for some medically necessary abortions. The court issued a permanent injunction prohibiting its enforcement. State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001).
In 2002, the Alaska legislature enacted a 2003 budget bill providing that no state funds appropriated for medical assistance may be used to pay for an abortion that is not a mandatory service under federal law. Such a budget restriction fails to fund all medically necessary abortions. H.B. 403, 22d Leg., 2d Sess. (Alaska 2002).
However, the Alaska attorney general found that this budget restriction was unenforceable in light of the court-issued permanent injunction and advised the state to continue to fund medically necessary abortions. Alaska Op. Att'y Gen. No. 883-02-0028 (June 28, 2002).
A court agreed that the budget restriction was without effect and ordered the state to continue to fund medically necessary abortions. Planned Parenthood of Alaska, Inc. v. Livey, No. 3-AN-98-07004 CI (Alaska Super. Ct. Aug. 19, 2002).
The legislature has continued to enact similar budget restrictions. H.B. 310 & 312, 25th Leg., 2d Sess. (Alaska 2008). However, in reviewing such restrictions, the state attorney general continues to advise the state to fund medically necessary abortions in accordance with the decisions of both courts. Alaska Op. Att'y Gen. No. 883-03-0044 (Nov. 18, 2003); Alaska Op. Att'y Gen. No 883-07-0070 (June 6, 2007); Alaska Op. Att'y Gen. No 883-08-0074 (May 9, 2008).
State Constitutional Protection
The Alaska Constitution protects the right to reproductive choice as a fundamental right and to a greater extent than the federal Constitution. The Alaska Supreme Court struck down under the state's constitutional right to privacy a "quasi-public" hospital's policy barring abortion procedures at the facility and declared a state statute immunizing persons and hospitals from liability for refusing to participate in abortion invalid as applied to "quasi-public" institutions. Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
The Alaska Supreme Court held that a regulation limiting state medical assistance for abortion to cases of life endangerment, rape, or incest was unconstitutional under the state constitution because it prohibited reimbursement for medically necessary abortion services. State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Williams v. Zbaraz, 448 U.S. 358 (1980).
