Abortion Providers: Restrictions
Alaska imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Alaska places medically unnecessary restrictions on where abortion services may be provided.
Alaska has an unconstitutional requirement that all abortion services must be provided 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 provide abortion care) may not provide the procedure after the first trimester; as a result, post-first trimester abortions must be provided in a hospital. Alaska Stat. § 08.64.105 (Enacted 1970); Alaska Admin. Code tit. 7, § 12.370.
Protections: State Consitutional Protection
The Alaska Constitution protects the right to choose as a fundamental right and to a greater extent than the U.S. Constitution. The Alaska Supreme Court struck down under the state’s constitutional right to privacy a “quasi-public” hospital’s policy barring abortion services at the facility and declared a state statute immunizing persons and hospitals from liability for refusing to participate in abortion care 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 U.S. 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 U.S. Constitution. Williams v. Zbaraz, 448 U.S. 358 (1980).
Abortion Bans Throughout Pregnancy: Procedure Ban
Alaska has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 weeks. Alaska Stat. § 18.16.010 (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). Alaska’s law makes the provision 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). Additional provisions of the law were subsequently litigated based on the claim that the law is antiquated and forces women to travel out-of-state for a procedure that can be safely provided in Alaska. Included in the lawsuit are regulations that require clinics to keep a blood supply on hand and another that requires clinics to be equipped and staffed for “major” surgery. The court agreed with pro-choice litigants and blocked the law. Planned Parenthood of the Great Northwest and Hawaiian Islands v. Alaska, No. 3AN-16-CI (Nov. 2016).
The U.S. Supreme Court held that a similar ban that has no 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).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits certain second-trimester abortion procedures and has no 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.
Alaska law subjects women seeking abortion services 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 2004 law, 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 provide 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 procedure. The 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 choosing abortion; (c) describes the medical risks associated with pregnancy and childbirth and the possible physical and psychological effects of carrying a fetus to 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 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, 16 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 choosing abortion and that doctors already ensure that women are fully informed about risks. 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.
The website was reviewed and updated in 2010 and again in 2014. Under “Possible Medical Risks or Complications of Abortion,” it reads: The American College of Obstetricians and Gynecologists (ACOG) reported, in their June 2009 Committee Option Induced Abortion and Breast Cancer Risk, that “…prospective studies conclude that there is no association between induced abortion and breast cancer” and that “Early studies of the relationship between prior induced abortion and breast cancer risk were methodologically flawed. More rigorous recent studies demonstrate no causal relationship between induced abortion and a subsequent increase in breast cancer risk.”
The American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) supports the view that there is a causal relationship between breast cancer and the termination of a pregnancy. The subject can be explored in more detail by referring to the reference lists in this website.
No state measure.
Insurance Coverage for Abortion
No state measure.
Abortion Coverage for Low-Income People
Restricts 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 abortion care. An abortion is considered medically necessary if the 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. June 2012) at http://manuals.medicaidalaska.com/physician/physician.htm.
In 2000, the Alaska legislature enacted an unconstitutional and unenforceable statute eliminating funding for “therapeutic abortions,” a category which included abortion services provided 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 abortion services, unless a 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 abortion care. 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 abortion services. 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 abortion care. 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 abortion services. 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. (2008 Alaska Sess. Laws Ch. 27; 2008 Alaska Sess. Laws Ch. 28; 2009 Alaska Sess. Laws Ch. 12; 2009 Alaska Sess. Laws Ch. 13; 2013 Alaska Sess. Laws Ch. 14; 2013 Alaska Sess. Laws Ch. 15; 2016 Alaska Laws 4th Sp. Sess. Ch. 3; 2016 Alaska Laws 4th Sp. Sess. Ch. 1). However, in reviewing such restrictions, the state attorney general continues to advise the state to fund medically necessary abortion services 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).
In 2014, the legislature again attempted to restrict Medicaid funding for abortion services by enacting S.B.49, which severely narrows the definition of “medically necessary” to deny Medicaid assistance for abortion services unless a woman is at risk of dying or her pregnancy resulted from rape or incest. S.B.49, 28th Leg., 2d Sess. (Alaska 2014). The law was challenged immediately, and in July 2014, before it would have gone into effect, a court issued a preliminary injunction blocking enforcement of the law. Planned Parenthood of the Great Northwest v. Streur, 3AN-14-04711 CI (Alaska Super. Ct. July 17, 2014). In August 2015, the Alaska Superior Court ruled the law unconstitutional, finding that it violated the equal protection provisions of the state constitution by imposing criteria on Medicaid coverage of abortion that are not applied to other health-care services. Planned Parenthood of the Great Northwest v. Streur, 3AN-14-04711 CI (Alaska Super. Ct. August 27, 2015).
Young People & Abortion
Alaska law restricts young women’s access to abortion.
Is the law enforceable? No. In July 2016, the Alaska Supreme Court struck down an August 2010 ballot measure requiring parental notification before a woman under the age of 18 may receive abortion care. The court ruled that this requirement — known as the Parental Notification Law — violates the Alaska Constitution’s equal-protection clause, since it discriminates against young women seeking abortion care (as opposed to those who carry their pregnancies to term).
The Parental Notification Law amends a 1997 law mandating parental consent before a woman under the age of 18 may receive abortion care. The Alaska Supreme Court found this law unconstitutional and unenforceable because it violates young women’s right to privacy under the Alaska Constitution. Moreover, the court held that the law does not further a compelling state interest, using the least restrictive means.
Who is considered a minor? A young woman under the age of 18 who is unmarried, unemancipated, and has been domiciled in the state for at least 30 days prior to receiving abortion care.
What is required – parental consent or parental notice? Notice.
Who must be notified? One of the minor’s parents, legal guardian, or custodian.
Are there other trusted adults who may be notified instead? No.
What is the process for providing notification? A young woman may not receive abortion care unless the attending physician notifies one parent, legal guardian or custodian by telephone or in person 48 hours before providing abortion services. If, after “reasonable steps” are taken to provide notice, notification still has been unsuccessful, the referring or attending physician may provide “constructive notice” in the form of written notice sent by certified mail.
May parental notification be waived if a young woman is a victim of rape or incest? In the case of sexual abuse by one or both of the minor’s parents, guardian or custodian, the court can provide consent. The court must have notarized statements by the minor and another person who has personal knowledge of the abuse. There is no explicit exception in cases of rape.
May parental notification be waived if a young woman is a victim of child abuse? Yes. In the case of sexual, physical, or emotional abuse by one or both of the minor’s parents, guardian or custodian, the court can provide consent. The court must have notarized statements by the minor and another person who has personal knowledge of the abuse.
May parental notification be waived if a young woman’s health is threatened? Yes, but only if, in the attending physician’s clinical judgment, 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 parental notification 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 notice 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. In July 2016, the Alaska Supreme Court ruled that the Parental Notification Law violates the Alaska Constitution’s equal-protection clause, since it creates a “discriminatory barrier to those minors seeking to exercise their fundamental privacy right to terminate a pregnancy.” Planned Parenthood of the Great NW v. State, Nos. S-15010/15030/ 15039, slip op. at 37 (Ala. Sup. Ct. July 22, 2016) (rev’d in part and remanded). The court reversed the lower court’s ruling to the extent that it had upheld the Parental Notification Law. It also remanded the case for further proceedings, including entry of judgment consistent with the Supreme Court’s decision.
Other information about the law: None.
Alaska Stat. §§ 18.16.010(a), (g) (Enacted 1970; Renumbered 1978; Reorganized 1986; Last Amended 2010); Alaska Stat. §§ 18.16.020 (Enacted 1997 Amended 2010); Alaska Stat. §§ 18.16.030 (a), (b), (c), (j), (n) (Enacted 1997; Amended 2010); Alaska Stat. §§ 18.16.090(2) (Enacted 1997).
Insurance Coverage & Contraception
No state measure.
Contraception Coverage for Low-Income People
No state measure.
No state measure.
Other Important Issues
No state measure.
Refusals & Guarantees
Refusals of Medical Care
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? Allows individuals and hospitals to refuse 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 abortion services. 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 2010).
Counseling & Referral Bans
No state measure.