Why overturning Roe wouldn’t end abortion rights in Alaska

People outside a white building with columns.
Thousands of protestors gathered outside the U.S. Supreme Court Dec. 1 during oral arguments in a Mississippi case that could diminish abortion rights nationwide. (Liz Ruskin/Alaska Public Media)

The U.S. Supreme Court could limit or even overturn the landmark abortion rights case Roe v. Wade in a decision expected next summer. That could leave the legality of abortion rights up to each state. And you might be wondering what that would mean for Alaska.

Our Washington, D.C., correspondent, Liz Ruskin, says making an abortion ban stick would likely take an amendment to the state Constitution.

Listen here:

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The following transcript has been lightly edited for clarity.

Casey Grove: Liz, it seems like the Legislature and Alaska voters have passed several laws to limit abortion over the years. Aren’t those still on the books?

Liz Ruskin: Casey, you’re right that they have passed a number of limits, like requiring parental notification before a minor’s abortion and prohibiting state-funded abortion. But these restrictions have been struck down by the Alaska Supreme Court, typically citing the state constitution’s right to privacy that voters adopted in the ’70s.

CG: So if Roe v. Wade is overturned, abortion rights would still be protected by the state constitution?

LR: That is how the state Supreme Court has seen it for a couple of decades. Roe v. Wade is built on an implied right to privacy in the U.S. Constitution. But in the Alaska Constitution, you don’t have to imply it. It’s on the page: ‘The right of the people to privacy is recognized and shall not be infringed.’

CG: So wait, the Alaska Supreme Court says that privacy right covers the right to have an abortion?

LR: Yes, and Alaskans who want to ban abortion say that’s a bad interpretation. But it’s stood for 25 years now. I just talked to Loren Leman about it. He’s the former lieutenant governor and former Republican legislator. He has sponsored a number of abortion restrictions over the years. He describes it as an exciting time for his side on the national level, with the prospect that Roe might be overturned or reined in. But he says Alaska is a long way from being able to ban abortion.

Here’s how he put it:

Loren Leman: The big problem is the Alaska Supreme Court and how judges are are selected. And there’s a way to fix that. It’s long. It’s tedious. And it’s fraught with a lot of challenges. But it can be fixed.

LR: So Leman’s solutions — all but one — involve amending the state constitution. One way, he says, is an amendment that basically tells the state Supreme Court, ‘Nothing in this document is about abortion.’ And another is to give more power to the governor or the Legislature in judicial selection, to get a Supreme Court that’s more likely to accept an abortion ban. As Leman says, though, it’s not easy to amend the constitution.

CG: Did you say he had one other way to ban abortion and Alaska without amending the constitution?

LR: Well not ‘ban’ abortion, but he said there’s a way to ‘end’ abortion in Alaska without changing the constitution. And that’s just changing the hearts and minds of everyone who might have an abortion. And as you know, that is a never ending campaign.

CG: Well, Liz, what do abortion rights advocates say?

LR: They like the privacy clause in the constitution and they want to make sure the state Supreme Court continues to see it as protecting a right to abortion. They don’t want changes to the constitution on this score.

CG: Which I guess we could see at a state constitutional convention where delegates would propose changes to the state constitution. Isn’t that supposed to be on the ballot next year?

LR: Yes, voters will be asked on the 2022 ballot in November whether they want a constitutional convention. And a convention worries both sides of the abortion debate because you don’t really know how it would turn out. But there are definitely some in the anti-abortion camp who see it as a route to acquire an abortion ban.

CG: So bottom line, it sounds like Alaska is not one of those states that can easily ban abortion if Roe v. Wade is no more.

LR: That’s right.

RELATED: What happens if Roe v. Wade goes? In Alaska, ‘nothing’

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Liz Ruskin is the Washington, D.C., correspondent for Alaska Public Media. She reports from the U.S. Capitol and from Anchorage. Reach her at lruskin@alaskapublic.org.

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