CHIEF STOWERS’ DISSENTING OPINION IS WORTH READING
By SENATOR JOHN COGHILL
GUEST CONTRIBUTOR
Summary: Chief Justice Stowers’ dissenting opinion in the “Medically Necessary Abortion Case” was correct: The Majority of the Alaska Supreme Court substituted a rigid interpretative choice to subsidize abortions under Medicaid.
For years, Alaska has tried to define “medically necessary abortions” for the purposes of Medicaid payments. Many who sought the definition, including myself, believe that Medicaid (a state/federal program) should not be paying limited state dollars for elective procedures, including elective abortions.
In 2014, after long debate in the Senate and House, the majority of the legislature agreed and passed Senate Bill 49. The bill was subsequently signed by Gov. Sean Parnell. The bill was a “policy call,” after a deliberative process, that directly affected the “purse strings” of the state.
SB 49 sought to create a definition, based on the legal foundations found in the Hyde Amendment, as well as numerous other physical conditions (including a broad, reasonable “catch-all” provision), to accommodate for the Alaska Supreme Court’s historic interpretations on the topic of abortion.
But, apparently, that’s still not enough. At least, according to the current majority of the Alaska Supreme Court.
On Feb. 15, 2019, the Alaska Supreme Court issued its opinion in State v. Planned Parenthood of the Great Northwest (Supreme Court No. S-16123). The “medically necessary abortion” language was struck down.
The majority of the Alaska Supreme Court decided that the language defining medically necessary abortions compelled a “high-risk, high-hazard” interpretation.
The “high-risk, high-hazard” interpretation is curious indeed, particularly as it pertains to the “catch-all” provision in the legislation. If a Medicaid-eligible person qualified under the “catch-all” provision, then Medicaid would have paid for the procedure.
The “catch-all” provision allowed for the definition to include, but was not limited to, encompassing “another physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy that places the woman in danger of death or major bodily impairment if an abortion is not performed.”
Taken overall, the legislation was considerably less restrictive than what the Hyde Amendment historically required. The “catch-all” was specifically designed to be very broad. The “broadness” was in anticipation of the court’s strict scrutiny.
As I’ve come to learn over the years, the judiciary will give every conceivable “benefit of the doubt” to Planned Parenthood. This behavior occurs even if alternative, reasonable interpretations exist.
Chief Justice Stowers, to his credit, on pages 46-47 in the opinion, correctly stated that when a statute is susceptible to multiple reasonable interpretations (of which one is constitutional) the doctrine of constitutional avoidance directs the court to adopt the interpretation that preserves the statute.
Unfortunately, as also noticed by Chief Justice Stowers on page 47, it was evident the majority went to great lengths to ensure that a conclusion of “unconstitutionality” was inevitable.
Why?
I recommend that readers read the opinion, particularly the dissent, and then draw your own conclusions.
Noteworthy: Chief Justice Stowers emphasized a point in this case that the entire judiciary needs to further contemplate: When it comes to public policy, the judiciary cannot substitute its judgment for that of the legislature.
Over the years, particularly in the Superior Court, I’ve watched courts essentially “write law.” That’s a violation of the separation of powers and a misunderstanding of what the court system does.
It is true the judiciary does interpret the law. However, if the judges feel the need to write the law, they need to first run for office.
Sen. John Coghill represents portions of the Fairbanks North Star Borough and North Pole.
“… One single object … will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation. — Thomas Jefferson letter to Edward Livingston, Mar. 1825
The power belongs to the people and the people speak through THEIR Constitution. The only way now to resolve this is through changing our Constitution. That is a high bar but we are called to be faithful…not successful. We also need to have more strict constructionists appointed to the bench but that’s another topic.
Finally, just as a reminder, when SB49 was being heard in Senate Judiciary, Sen. Fred Dyson asked Laura Einstein, the chief legal counsel for Planned Parenthood of the Greater Northwest, if she would please define what an “elective abortion” was.
Einstein paused for a wonderfully awkward and telling moment in time, and said “We’ve heard of that term Senator Dyson but we do not know what it means.”
Living in a post-truth society sometimes has its pleasures. That answer, essentially stating that ALL abortions are medically necessary if the doctor says so, is very indicative of the crumbling foundation upon which the abortion industry is based. May we each keep pounding away at it with grace filled sledgehammers.
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