With the nomination of U.S. Supreme Court nominee Brett Kavanaugh pending in the U.S. Senate, many Americans are hoping — and others dreading — that the court could reconsider the legal right of women to terminate a pregnancy, as established in Roe v. Wade. If the 1973 case is overturned, states would have more power to restrict abortion, or possibly ban the procedure entirely within their boundaries. But in Alaska, the right to abortion is stronger than it is in much of the country.
I put the question to attorneys on both sides of the issue: What happens to abortion rights in Alaska if Roe v. Wade is overturned?
“Well, the answer basically is nothing,” Anchorage attorney Kevin Clarkson said.
That’s because the state Constitution, as interpreted by the Alaska Supreme Court, affirms a legal right that Clarkson calls “Roe v. Wade on steroids.”
“Basically, Alaska provides more protection for abortion rights than the federal Constitution,” Clarkson said. “So if Roe vs. Wade were overturned, in Alaska, nothing would change.”
And as Clarkson sees it, that’s a problem: He has represented the anti-abortion side in several Alaska cases. He defended a law requiring parental consent before a minor’s abortion, and when that was deemed unconstitutional, he defended one requiring parental notification. The state Supreme Court found that one unconstitutional, too.
Again and again, he and other abortion opponents have hit a brick wall called the Alaska Constitution, and Clarkson said the biggest brick in it is the Privacy Amendment.
Roe v. Wade is built on the U.S. Supreme Court’s finding of an implied right to privacy in the national Constitution. But months before Roe, in 1972, Alaska voters installed that right explicitly in their own state Constitution. It’s there in black and white: “The right of the people to privacy is recognized and shall not be infringed.”
“Although I think if you looked at the history of the Privacy Amendment in Alaska, nobody had abortion in mind when they passed that amendment,” Clarkson said.
Clarkson is right that abortion wasn’t the commonly stated reason for Alaska’s privacy amendment. According to a history published by the Legislative Affairs Agency, the issue of the day was the state’s development of a database to track people’s criminal histories.
Regardless of what sparked it, the state Supreme Court has said the intent of the Privacy Amendment was much broader. And that’s how former state Senate President Chancy Croft remembers it, too.
“Nobody really knew where it came from,” Croft said, “but it just struck everybody pretty well unanimously that this was a good idea and it really fits in Alaska.”
Croft said legislators in 1972 liked the spirit of the privacy amendment, even if the exact motivation behind it was something of a mystery.
He and the rest of the Legislature put the Privacy Amendment on the ballot and voters approved it, by a huge margin.
For a long time, Alaska’s privacy protection seemed to be mostly linked to marijuana. That’s because, soon after the amendment passed, an attorney named Irwin Ravin got arrested with some cannabis in his pocket. The Alaska justices concluded it was none of the government’s business if a person had a small amount of marijuana at home.
It wasn’t until 1997 that the Alaska Supreme Court had an opportunity to say the Right of Privacy covered abortion, too.
“Not only does this provision protect reproductive rights, it protects them as a fundamental right,” said attorney Janet Crepps of the Center for Reproductive Rights, who has worked on most of the important Alaska abortion cases. “Which means that they get the highest level of protection under the Constitution.”
About a dozen state constitutions around the country include a right of privacy or something similar. But Crepps said their courts doesn’t necessarily apply it in abortion cases the way Alaska’s does. For instance, Crepps said, “Louisiana has a constitutional right to privacy and the court has said it doesn’t provide any extra protection.”
She agrees with Clarkson, the anti-abortion attorney, that if Roe v. Wade falls, it won’t change anything for women in Alaska.
“That won’t be the case for women in other parts of the country,” Crepps said.
But what if you want abortion banned or limited in Alaska? Clarkson is resigned to the idea that his side would continue to lose abortion cases in the Alaska Supreme Court, probably on privacy grounds. Even if a conservative governor had a chance to replace all five Alaska justices, he said, the new ones would likely respect precedent.
“What could change things in Alaska to move it towards a more protective-of-life perspective would be an amendment to the Alaska Constitution,” he said. “That’s really what it would take at this time.”