By AlaskaWatchman.com

The Republican Party has used the prolife vote for decades now, and with the exception of Donald Trump’s judicial appointments, has given very little reason to expect prolife voters to continue to support the GOP. This realization is dawning on many lifelong conservatives and Republicans. Let us look at the local level, here in Alaska.

We still find the same shopworn solutions to abortion in Alaska are being offered and are nothing more than dead-ends. This is true even from some of the allegedly prolife support groups, who dutifully warn how bad things will be if prolife elected officials are not supported. The mindless logic goes like this:

“The courts have ruled that abortion is a privacy right. We must change the courts! Or, we must have a constitutional amendment. Or we must nibble at the edges, wherein the courts permit certain restrictions. That’s all we can do for now.”

Alaska legalized abortion in 1970, three full years before Roe v. Wade … which also struck down the restrictions Alaska had in place, such as parental permission, gestation limits and so forth. This law was passed for several reasons, one of which was a libertine view of sexuality that has ever permeated frontier areas, but also because as a new state, misguided legislators wanted Alaska to be seen as “progressive.”

The law was vetoed by then-Governor Keith Miller, which was quickly and easily overridden. But let us review the constitutional options that have never been exercised and are still in place.

WHAT CAN BE DONE?

For starters, the first breath of the state constitution reads as follows: “This constitution is dedicated to the principles that all persons have a natural right to life …”

So, what on earth do we need a constitutional amendment for? Who says that unborn persons are not persons? It was certainly accepted in 1955, when the constitutional convention met, and also in 1958 when the people approved statehood and the Alaska Constitution.

Suppose the State Legislature and/or courts declared that Alaska Natives, Jews or other minorities were not fully human, or “persons” before the law. Then, vetoed by a governor, then the veto overridden.

And it still is today when a woman is assaulted or murdered while carrying an unborn child. But the evil courts and their case law have decided, on their own warped authority, that the unborn child is protected only if it is “wanted,” or some such illogical nonsense.

It seems impossible, but let us suppose that we had a conservative Alaska Supreme Court. It could have immediately declared the 1970 abortion legalization law as unconstitutional, citing Article I, Section 1, quoted above.

OK, so we didn’t have a conservative state court, neither then nor now. But we did have a prolife governor, who vetoed the law. But then, it was constitutionally overridden.

Let’s play a hypothetical game: suppose the State Legislature and/or courts declared that Alaska Natives, Jews or other minorities were not fully human, or “persons” before the law. Then, vetoed by a governor, then the veto overridden.

Let’s check out Article III, Sec. 16: “[The governor] may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right by any officer, department or agency of the state or any of its political subdivisions. This authority shall not be construed to authorize any action or proceeding against the legislature.”

So, Gov. Keith Miller might have invoked this section, refusing to allow such a hypothetically hideous law in Alaska. Yes, we would have had a constitutional crisis. Yes, they might have impeached him for it. You do not need any legal grounds for impeachment, it can be trumped up on any pretense. But Miller would have had the constitution on his side, for everyone admits that this section gives Alaska’s governors a power not found in most other states.

Now, Alaska Natives, Jews and other minorities enjoy sympathy and privilege in this state, so the given example would not happen, at least in the current culture. But we do have a culture that does not see the unwanted/unborn as enjoying such protections. It is, of course, utterly arbitrary, as we have seen in regards to the death of an unborn child that is “wanted.” It is also selfish, brutal, stone-hearted, unconstitutional, and – this really infuriates the Left – utterly unscientific.

The arrogance of the judiciary now extends into new areas that have nothing to do with abortion, such as usurping the powers of grand juries. But the timorous, allegedly conservative legislators have done little or nothing to stop this.

Gov. Miller lacked the full knowledge of the constitutional powers he possessed, or determined that it would be a fight not worth engaging. With the abdication of the battlefield, the Left has been emboldened to even more preposterous unconstitutional actions in the decades that have followed.

We can start with the right to privacy, enacted in 1972 for the sake of our personal electronic data being protected at the dawn of the computer age. The amendment was wisely written in anticipation of what we are now seeing, and if you haven’t noticed, it is utterly ineffective for the purpose in which it was approved.

But things get even worse: the understanding that the judiciary was often an enemy of constitutions was fully anticipated, so the amendment further reads, “The legislature shall implement this section.”

Yet, the judiciary has gotten away with impeachable offenses by deciding that they will define, and hence “implement,” what privacy means. And, naturally, abortion quickly became its pet to protect at all costs. It was an easy bridge to cross when “privacy” meant – by their case law reasoning – to extend to public funding of abortion.

All the while, allegedly prolife governors such as Hickel, Palin, Parnell and Dunleavy, and allegedly prolife legislative majorities in the past, have dutifully tried to end this constitutional overthrow by following supposedly “constitutional” boundaries – only to find that … Ta Da! … the goalposts were moved further back.

We see that the arrogance of the judiciary now extends into new areas that have nothing to do with abortion, such as usurping the powers of grand juries. But the timorous, allegedly conservative legislators have done little or nothing to stop this.

Except, of course, Rep. David Eastman, who is universally detested for not being a “team player.” But Eastman never votes or acts without first asking, “Is this constitutional?” His fellow colleagues, who take the same oath, rely upon the judiciary to let them know what “constitutional” means, as if they are too ignorant or uneducated to think for themselves.

Many likely secretly agree with him, but they don’t dare cross over to his side, for fear of being “Eastmanized” by their colleagues, the media and the bureaucracy. Thus, their oath to support both the state and federal constitutions is turned over to the very people – the judiciary and the bureaucrats – that they use as a way to gain the votes and trust of their conservative constituents, to effect a change that both they and their Leftist enemies, know will never occur.

The views expressed here are those of the author.

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OPINION: Alaska GOP’s shopworn ‘resistance’ to abortion is an absurd dead end

Bob Bird
Bob Bird ran for U.S. Senate in 1990 and 2008. He is a past president of Alaska Right to Life, a 45-year Alaska resident and a retired public school teacher. He has a passion for studying and teaching Alaska and U.S. constitutional history. He lives on the Kenai Peninsula and is currently a daily radio talk-show host for The Talk of the Kenai, on KSRM 920 AM from 3-5 pm and heard online radiokenai.com.


11 Comments

  • DaveMaxwell says:

    Well stated Bob and the implied indictments stick to those like hughes and Rauscher and Mcabe! Dunleavy as well!!!
    Thank you David Eastman for marching in the direction opposite the other pukes!

  • Kenneth L. Wells says:

    People make this issue far more complicated than it need be. There are two conflicting, irreconcilable views; “It’s a baby”, and, “It’s not a baby”. Attempts to make it about, ‘health care’ or ‘women’s choice’ or any other obfuscation are not useful or even rational. Laws, in my opinion, should endeavor to be rational at all times, constitutionally based, at all times. To be rational and constitutional, we arrive at, “It’s a baby”, or, “It’s not a baby”.

    Delving into that we arrive at two irreconcilable views; ‘it’s a baby at conception’ and ‘it’s not a baby until “we” say it is’. Members of the former group claim biological clarity &/or religious beliefs. Members of the latter group claim life starts at various events, first heartbeat or first brain activity or the experience of pain or, insanely, up to several hours after birth.

    These are irreconcilable. There are no solutions that will receive approval from both sides and both sides must accept that and understand, or at least pretend, the other side has arrived at their position in good faith.

    Thus it becomes a matter of negotiation between the two sides, again, in good faith with the understanding that because the two sides are irreconcilable, neither side is going to be happy with the result of the negotiation.

    Somewhere between ‘conception’ and ‘birth’ there is a point where both sides can, at least, be equally enraged. Don’t let stupid, irrelevant arguments obscure what this is actually about; defining the point where abortion becomes murder.

    Since that point is going to be arbitrary in nature due to negotiation perhaps the simplest method to decide is democracy. We all vote. On paper ballots with proper government I.D. The question put should be as simple as possible, something like; Human pregnancy lasts roughly nine months, which is 36 weeks. At what week should abortion become unlawful except in self-defense or fatal genetic defect?
    The results would be tabulated, publicly and available for review. The week most widely accepted becomes the end of lawful abortion.
    A month prior to the vote, let’s have the most vocal supporters and opponents of abortion make their cases, debate if they like, or through websites or kiosks at the libraries.
    No “rank choice” cheating. No mass mailing of ballots cheating. No electronic voting machine cheating. Paper ballots, traceable to individual voters, accessible to any and all who wish to count and run the numbers themselves.

    Or we can continue without any chance of resolution, keep fighting and bickering and warping the law this way and that.

    • Clark says:

      You started out making good points. Then you veered WAY off into neverland. We have a system of voting in this state already. It does not work the way you describe. We don’t pass laws by popular vote the way you describe. You would need an individual vote for every supposed time limit. Or at the very least, you would need 1 ballot initiative to pass JUST to call for said popular vote. And we have ranked Choice for whoever the candidates are…that’s just how it is(and it worked great last time). I can already tell you what the result would be with a very high degree of certainty. People already lived mostly peacefully for the last 50 years with Roe V Wade. If they HAD to pick a time limit, most people will choose 24 weeks. It was reasonable for the last 50 years and still is.

  • Jan DeLand says:

    Thank you Bob for this well written, insightful article. “This constitution is dedicated to the principles that all persons have a natural right to life …” means no amendments are needed for all human life to be protected at every stage of life. What IS needed is more people of courage like David Eastman to stand up for that right.

  • Rep. David Eastman says:

    “So, what on earth do we need a constitutional amendment for?”

    To answer your somewhat rhetorical question, the amendment serves a political purpose that a number of politicians believe is necessary in order to secure their future political careers. As they are not committed to stand in the gap on behalf of the unborn today it is politically necessary (if they are going to be re-elected that is) for them to find a scape goat to point the finger at for their decision not to take the battle to the enemy.

    Those who put forward constitutional amendments are tacitly (or expressly) claiming that the blame for the problem ought to fall on the constitution. The constitution is to blame, they say. It is in error. We must fix it. We can’t move forward in this battle because it is the constitution that stands in our way. It ably defends the murderer and the tyrant and while we would desperately like to jump in and rescue the child from the one inflicting pain and death upon them, we are loathe to attack or undermine the constitution.

    The constitution is the expedient villain because it cannot be easily changed by the legislature (though the court seems to find it easy enough to make changes). The court requires only 3 votes to issue its opinion. The legislature requires 41 votes to change the constitution (more than two-thirds of legislators), and then the change doesn’t take place until ratified by a majority of voters. The court also intrudes on this process by asserting it has a right to veto even a constitutional amendment passed by the legislature and ratified by the people, in essence a “royal prerogative” that even the Queen of England did not possess while she lived. The case was Bess v. Ulmer (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1124&context=alr).

    In other words, referring to a constitutional amendment to fix abortion as a “dead-end” is overly generous and does injustice to dead-ends everywhere. Even a dead-end can be breached with enough momentum and an especially dense object—Not so the gauntlet the court invites the unborn and their advocates to walk through.

    That gauntlet is lined first with Republican legislators who identify as pro-life for purely political reasons and only during campaign time. These legislators comprise the enemy’s front line, and are relied upon to sabotage any pro-life effort in the legislature. Should you gain their assent, and by that I mean the affirmative vote of every single Republican legislator simultaneously, you must then gain the assent of Democrats. You may find one Democrat (an M.D.) who will vote with the Republicans on abortion. One Democrat vote is not enough. After securing the vote of every Republican legislator you will need eight more votes. There are no Independents who vote with the Republicans on abortion. After you gain the assent and affirmative vote of all Republicans, all Independents, and several Democrats, you must then gain the assent of a majority of voters and go to battle publicly against a billion-dollar industry that risks losing money if your amendment passes at the ballot box. Then, after you win at the ballot box, Planned Parenthood need only call upon three of its activists on the AK Supreme Court to write an opinion that vetoes your amendment and asserts that abortion is such an important topic that you need to wait ten more years and then convince Alaskans to have a constitutional convention to make such an important change to the constitution. After you wait those years and successfully defend your amendment at the ballot box a second time, with the abortion industry weighing in against you a second time, you are then invited to wait another year or two and do battle publicly against the abortion industry a third time in the election of delegates to said constitutional convention. Once you gain the assent of voters a third time, you must gain the assent of a majority of delegates. Once you gain that assent you must then do battle publicly against the abortion industry yet again by winning the support of the people at the ballot box a fourth time.

    A constitutional amendment to fix abortion isn’t a dead-end, it’s a non-starter, and every legislator who tells you to go get one knows it. But it does serve a purpose, and many a Republican legislator has been elected by blaming someone or something else on their failure to stand in the gap for the unborn while in office. But I’m not supposed to tell you that. I’m supposed to follow the Republican Party’s example and treat pro-life voters as a cash cow, the one political group that keeps giving while getting nothing in return except lip-service. I’m supposed to accept this as the status quo and help distribute pro-life political support to every Republican politician who is willing to self-identify as pro-life at least once during campaign time. That’s the standard; words, not deeds.

    What other political lobby grants its support based on words alone, ignoring the actions which war against the words?

    The abortion industry runs on money. Words are never enough.

    • DaveMaxwell says:

      Thank you David for truth! I would like the names of the conservative legislators who are prolife fakes! Would I be correct in stating names like Mcabe, rauscher, hughes, dunleavy, tilton, deanna , shower,etc. please confirm. Thank you

      • AK Pilot says:

        So your brilliant plan is to ensure a leftist Democrat supermajority by boycotting certain legislators who fail your ideological purity test? Enjoy Alaska’s continued slide toward Marxism!

    • Rep. David Eastman says:

      Re AK Pilot: I suppose an alternative to “boycotts” would simply be to be honest with pro-life Alaskans that ending abortion, or even ending state abortion funding, really isn’t “our thing” as a party.

      How odd though that our tent is currently large enough to even include Planned Parenthood-endorsed Democrats (if the House Majority Caucus and Senate Majority Caucus are any indication) but not so large as to include pro-life Alaskans by making pro-life policies a priority.
      And yes, Planned Parenthood-endorsed candidates are represented in each of the House Majority Caucus, the Senate Majority Caucus, and the House Minority Caucus. How ironic it is that the boycotting taking place today is actually the Republicans in the majority caucuses formally boycotting the more conservative legislators (Sens. Myers, Hughes and Shower, and myself).

    • RK says:

      Thank you for this clear explanation of what a constitutional amendment would actually entail. What can and should Alaskans do who actually wish to see the preborn protected in our state? Any suggestions in addition to contacting the Health & Social Services committee about your Life at Conception Act?

  • Edward Wassell says:

    As usual Mr Bird’s pithy words desimate his opponents who show themselves bereft of logic, bravery and common sense.
    Ed Wassell