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Memo: Proposed Abortion Regulations Likely Unconstitutional

Published On: Aug 23 2013 12:29:59 PM AKDT   Updated On: Aug 28 2013 11:41:13 AM AKDT

Proposed state regulations describing a narrow set of circumstances when an abortion qualifies as "medically necessary" would likely be found unconstitutional, according to a memo by the state Legislative Affairs Agency.

Jean Mischel wrote the memo in response to questions from state Sen. Hollis French (D-Anchorage), who recently announced plans to run for governor, about the constitutionality of proposed rules changes by the Department of Health and Social Services.

One of the changes "appears to be inconsistent with related statutes and regulations that apply to all other covered services and may for that reason be unconstitutional," Mischel wrote.

The proposed revisions would "create a new and restrictive state standard for determining when abortion services are 'medically necessary' without applying this same standard to coverage for other types of medical care services," she wrote.

Mischel's opinion comes during an ongoing effort by DHSS to limit the use of Medicaid funding for abortions to situations where a pregnancy could cause serious physical harm to a woman's health.

French says such a regulation would be an encroachment on a woman's right to choose.

"It's illegal to discriminate against women based on their income," French said. "If you provide medical services for poor women, you have to provide it across the board. You can't pick and choose."

State health commissioner William Streur previously told The Associated Press the state received about 260 certificates requesting state funds for abortions through May, with none of the certificates indicating rape, incest or risk of death as the reason.

When reached by Channel 2 On Friday, Streur declined to comment on specifics of the proposed regulations or the legal memo, saying he would not do so until the public comment period ends on Sept. 27.

"The new document isn't substantially different than the old one," Streur said. "There may be issues around constitutionality, but it's going to have to shake itself out."

Contact Austin Baird