John Havelock anticipated the long reach of the privacy amendment to the Alaska Constitution he wrote when he was Alaska’s attorney general in the early 1970s, he told me not long before he died a month ago. The chief concern then was to protect vulnerable citizens from illegal and unwarranted wiretaps and from computerized and other electronic surveillance, rapidly developing then. But since its approval by voters in 1972, the Alaska Supreme Court has interpreted the right to privacy broadly, finding that it protected home use of small amounts of marijuana, before that use was authorized by voters, for example, and also various aspects of search and seizure. But perhaps most timely today, the court has found in several cases that the privacy right protects a woman’s right to an abortion.
The amendment is remarkable in its simplicity. “The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.” (Article I, Declaration of Rights, Section 22) Havelock told me that Terry Miller, then the lieutenant governor (who oversees election matters), came to him with a much lengthier version of the amendment. Recognizing that the more specific the wording, the more likely future issues that could be covered might not be, Havelock shortened the amendment to the version voters approved, which amounts to a near-universal protection of Alaskans’ privacy. Countless Alaskans owe a debt of gratitude to Havelock for that, including those women who seek an abortion in the state.
John Rader was Alaska’s first attorney general after statehood. He later served in the Alaska House of Representatives, and in 1970 was elected to the state Senate. The next year, the same year that Havelock drafted the privacy amendment but before it was approved by voters, Rader introduced a bill guaranteeing a woman’s right to abortion, effectively nullifying a previous law that had made abortion illegal. Though Rader had no co-sponsors when he filed the bill, before long the Alaska Medical Association endorsed the bill, which encouraged many others to support it as well, including several religious leaders. Both the Senate and House subsequently passed the measure, and then overrode Gov. Bill Egan’s veto.
The law has been challenged a number of times, but the Alaska Supreme Court has found that the law is constitutional, that parental consent is not required for minors, and that the state may not mandate in which facilities an abortion may take place. In those cases, the court’s finding was based on Alaskans’ right of privacy, provided in the privacy amendment.
David Eastman, the current-hard right House representative from Wasilla, has twice introduced legislation declaring abortion to be murder. His bills have not made it out of committee. He was censured by the Legislature in 2017 for claiming that women used Medicaid abortion funding simply to get a free trip to Anchorage.
Havelock’s contribution to women’s rights and freedom in Alaska looms particularly large now that the U.S. Supreme Court has, in shadow session, approved Texas’s abortion bounty law. That court is widely anticipated next year to quash Roe v. Wade in a case coming from Mississippi. This despite the fact that, according to the respected Pew Research Center, support for abortion in most cases has remained steady nationally since polling on the issue began: 60% in 1995, 59% in 2021. So has opposition to abortion in most cases: 38% in 1995, 39% in 2021.
Writing in The New York Times a few weeks ago, Tom Edsall noted that for the far right, abortion opposition is not about abortion at all. Finding inadequate support for defense of low taxes and for segregationist policies, far-right leaders such as Richard Viguerie, Paul Weyrich, Phyllis Schlafly and Jerry Falwell, Sr., quite deliberately decided in the late 1970s to politicize abortion, hoping to unite, among others, Catholics and Evangelicals, with other conservatives. It worked. In 1971, the Southern Baptist Convention voted to seek legislation to permit abortion in cases of rape, incest, fetal deformity, or evidence of likely emotional or physical damage to the prospective mother. Today, that convention seeks to ban abortion in all cases whatsoever, calling abortion murder.
It is unlikely that such a prohibition would pass today’s Alaska Legislature, but if it did, the Alaska Supreme Court would likely declare it unconstitutional under the right of privacy. Alaska has John Havelock’s long vision to thank for that, that and John Rader’s legislative effort. Once again, history’s reach is long.
Steve Haycox is a professor emeritus of history at the University of Alaska Anchorage.
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