A ballot initiative that sponsors hope will outlaw abortion in Alaska by declaring fetuses to be "legal persons" appears headed for a court fight.
It's questionable whether the initiative could actually lead to abortion being illegal -- the state attorney general issued an opinion that it wouldn't. But opponents argue the measure is so broad it could have huge consequences regardless of whether it halts any abortions, ranging from women potentially sued following miscarriages to a legal argument that fetuses should be receiving Permanent Fund dividend checks.
"It is just insane," said Jeffrey Mittman, executive director of the Alaska Civil Liberties Union.
The ACLU is supporting a lawsuit filed this week by plaintiffs that include Vic Fischer, a former Democratic legislator and delegate to the state constitutional convention. The suit argues that Lt. Gov. Craig Campbell shouldn't have certified the measure and seeks to stop the sponsors from collecting signatures to get it on the ballot.
Initiative sponsor Christopher Kurka hadn't heard of the lawsuit before being contacted by a reporter about it. But he said opponents are attempting to confuse a basic issue of civil rights.
Kurka's effort is part of a nationwide push to put "personhood" initiatives on state ballots. The movement focuses on writings by Justice Harry Blackmun in the 1973 U.S. Supreme Court Roe v. Wade decision that established abortion rights nationally. Blackmun indicated that a fetus would be protected if its personhood were established.
Kurka said that would allow an unborn child the same rights under the 14th amendment as if the mother had a baby, decided she didn't want it, and tried to kill it.
"So, basically, what we're doing here is if we say that we recognize the unborn as persons, then a woman's right to choose or a right to privacy doesn't matter (just like) she doesn't have a right to kill her child after it's born," Kurka said.
The ballot measure he's sponsored seeks to put in law that "all human beings, from the beginning of their biological development as human organisms, including the single-cell embryo ... shall be recognized as legal persons in the state of Alaska."
The state attorney general's office issued an opinion that any initiative trying to ban abortions would be clearly unconstitutional because of Roe v. Wade. But it still gave the green light for the "personhood" initiative to go forward.
Attorney General Dan Sullivan did suggest the petition include a disclaimer: that it "would not amend or repeal existing state law regulating abortion, but could impact some areas of the law, including criminal law, to extend rights and protections prior to birth." Campbell added that wording and certified the measure so sponsors can go to get the signatures needed to get on the ballot.
Kurka has a different view than the attorney general. He said if his initiative passes and Alaska recognizes the unborn as "persons," they would be entitled to the same legal protection from crime as anyone else. So abortion would be considered murder, or at least manslaughter, he said. Kurka said he'd likely go to legislators if the initiative passes and ask them to change penal codes to reflect it.
He said the signature-gathering effort to get the measure on the 2010 ballot is expected to begin next month. It will take 32,734 names on the petition for it to go before voters in a statewide election, unless the lawsuit filed this week against the initiative shuts the effort down.
The lawsuit argues that Campbell should never have certified the measure. The plaintiffs contend the proposal has far-reaching potential consequences and there is no way voters can know what it might mean for state laws if it passed.
The ACLU's Mittman said it would open the door to someone suing on behalf of a single-celled embryo for anything an adult could now go to court for under Alaska law.
He said certain contraception, including the morning-after pill and the intrauterine device, or IUD, could be banned. Someone could also sue a woman who had a miscarriage, Mittman said, by arguing, for example, that she was negligent by going skiing when it was foreseeable she would fall. Legal persons have a variety of rights, Mittman said, including entitlement to permanent fund checks.
"So what's to stop somebody from suing on behalf of an embryo to receive a permanent fund dividend check?" Mittman said. "I mean, how can they not get one if they are a legal person?"
Initiative sponsor Kurka argued that only citizens can receive dividends and that citizens must be born. He said opponents are using scare tactics and absurd scenarios to cloud the issue. "It's about whether or not we as a society are going to recognize the unborn as legal persons and call it for what it is," he said.
Find Sean Cockerham online at adn.com/contact/scockerham or call him at 257-4344.
By SEAN COCKERHAM
Alaska Dispatch Publishing