After the emancipation of slaves, the painful lessons of the Civil War, and the affirmation of equal rights that were guaranteed by the U.S. Constitution, a wave of pro-life laws passed across the United States in the late 1800’s.
Adopted by every state, these laws protected the lives of children not yet born, based on the recognition that all human life is sacred and created in God’s image. Unfortunately, when societies lose sight of this, the dehumanization of entire classes of people is inevitable.
LOSING SIGHT OF HUMAN DIGNITY
While state laws protected babies waiting to be born, a handful Americans had lost sight of the sanctity of human life, and abortion activists began lobbying state legislatures in the 1950s and ‘60s to introduce legislation to either eliminate or loosen prohibitions on abortion.
While most states rejected these attempts, Alaska’s legislature aggressively embraced them, and after overturning Governor Terry Miller’s veto of their abortion bill, the practice was legalized in the spring of 1970.
The sad story doesn’t end there.
AK COURT DECLARES RIGHT TO ABORTION
Not satisfied with legalizing abortion, activists wanted it declared a constitutional right in Alaska. In 1997 they got what they wanted in the Valley Hospital v. Mat-Su Coalition for Choice decision when Alaska’s Supreme Court made three assertions with lasting implications. First, it claimed the Court has the “duty to develop additional constitutional rights and privileges under this constitution.” Second, it said abortion is a “fundamental and constitutional right.” Lastly, the Court said Alaska’s constitutional right to privacy in Article 1, Section 22 protects a woman’s “constitutional right to an abortion.”
Since 2001, the state has been under a court order directing the Department of Health and Social Services to pay every abortion invoice submitted on behalf of a Medicaid recipient.
Not long after this decision, Planned Parenthood sued the state over its efforts to limit abortion funding to only those deemed “medically necessary,” as defined by the Federal Hyde Amendment. In a 2001 decision, Alaska’s high court affirmed their previous assertions that “abortion is a constitutional right,” and that abortion is protected by the right to privacy.
The court went on to declare that since it created the right to abortion in 1997, it could declare that abortion funding for Medicaid recipients must also be a constitutional right. It also held that if the state funded health care for Medicaid recipients who wanted to give birth to their babies, the state could not then withhold funding from those who wanted to kill their babies.
Since 2001, the state has been under a court order directing the Department of Health and Social Services to pay every abortion invoice submitted on behalf of a Medicaid recipient, regardless of what pro-life laws are passed, and regardless of what restrictions the legislature places on abortion funding in the operating budget.
Because of that 2001 decision, Alaska’s courts have created a constitutional crisis 12 times in the past 19 years. Every time the legislature prohibits abortion funding – as they did in the 2020 operating budget – the governor is caught in a constitutional crisis. Whose order should he obey: the legislature, who has the exclusive power to make laws and authorize spending, or the courts?
That all depends on whether the court can create new constitutional rights, and whether it can use the legislature’s power to authorize spending.
Neither the courts nor the governor have any authority to amend the constitution in the slightest.
To find out, let’s look at some key parts of the Alaska Constitution:
Article 1, Section 1 states that “all political power is inherent in the people,” for the good of the people.
Article 1, Section 22 recognizes the right to privacy and gives the power to the legislature to define what’s included – and excluded – in the right to privacy.
Article 4 vests the judicial power in the courts, but nothing in Article 4 implies the courts have power to make laws or amend the constitution.
Article 9, Section 13 prohibits spending any public money except as provided by law and authorized by the legislature.
Article 12, Section 11 grants the exclusive power to make law to the legislature. The only exception is the people’s right to use the ballot initiative process to propose new laws.
Finally, Article 13 of the Alaska Constitution limits the authority to amend the constitution to a two-third vote of the legislature and a majority vote of the people. Neither the courts nor the governor have any authority to amend the constitution in the slightest.
This means that the constitution does not authorize the courts to make laws, amend the constitution or initiate spending.
With these constitutional powers in mind, we can examine the courts’ 1997 decisions and assertions:
- The court neither has the duty, nor the authority to “develop additional constitutional rights.”
- Since “reproductive rights” and abortion aren’t referenced in any part of the constitution, there’s simply no such thing as a “constitutional right to abortion.”
- Since the legislature never defined the right to privacy to include abortion, the courts have no authority to assert that abortion is protected by the right to privacy.
- Finally, since there is clearly no constitutional right to abortion, then there is no constitutional right to use public funds to pay for them.
TIME TO TAKE A STAND
Now here’s the pickle – the constitutional crisis Gov. Mike Dunleavy finds himself in. Should he obey the legislature’s constitutional prohibition on abortion funding, or the courts unconstitutional order to pay for the killing of unborn babies?
The answer seems simple.
Since the governor swore an oath to uphold and defend the state constitution – not unconstitutional court rulings – it seems he is duty bound to refuse payment for a single baby to be killed by an abortionist.
When Gov. Dunleavy refuses to pay for abortion, Alaska will become the national epicenter for the fight against abortion. Planned Parenthood, the ACLU, and the rest of the abortion industry will immediately sue. The courts will order the governor, his commissioners, and the Department of Health and Social Services to pay for abortion. Abortion proponents in the legislature will demand that the governor continue the payments. Abortion advocates leading the governor’s recall effort will raise more money and get more people to support a special election.
More than 800 babies will have lost their lives during this past year simply because the state obeyed the courts’ unjust and unconstitutional decisions.
Pressure on Gov. Dunleavy and his administration will go through the roof. People who didn’t vote for him in 2018 will hold protests, call the governor’s office, write letters and send emails.
That said, enthusiasm for Gov. Dunleavy will skyrocket as well when his supporters see he has halted the killing of two babies every day by refusing to pay for their deaths. We, too, will hold rallies and call his office and write to encourage him. And we’ll counter the abortion protests and marches with pro-life rallies and parades.
In less than two weeks Gov. Dunleavy celebrates the one-year anniversary of his inauguration. More than 800 babies will have lost their lives during this past year simply because the state obeyed the courts’ unjust and unconstitutional decisions.
Here’s where you and I come in: The governor needs to hear that unborn babies should never be killed, and that since the state should never pay abortionists to kill babies, we must encourage him to halt the practice.
This is a key battle we can’t afford to lose. Gov. Dunleavy needs to hear from you. Go to NoFundingNoPayments.org to learn more and tell the governor you’ll stand with him as he refuses to pay for a single abortion.
The writer is director of outreach and development for Alaska Right to Life.