EDITORIAL: What happened to the Dunleavy administration’s small-government ideals?

In an explanation of his actions related to LGBTQ discrimination protections (or the lack thereof) offered by the state, Alaska Attorney General Treg Taylor wrote a few days ago: “I don’t get to provide advice based on what the law could or should be; my duty is to provide advice based on what the law is ... As the state attorney general, I also don’t get to decide what the law is.”

When it comes to law related to abortion, however, it’s apparently not that simple.

News broke last week that Taylor, in his capacity as Alaska’s attorney general, had signed a letter coauthored by the attorneys general of 20 states, warning pharmacy chain Walgreens that if the company provided abortion medication (specifically the drug mifepristone, which Taylor and many of those attorneys general are supporting a lawsuit to ban) by mail, it could be in violation of federal law, despite a Food and Drug Administration regulation that would allow the drugs to be dispensed that way. Taylor and the others sent similar letters to CVS, Albertsons, Kroger, Rite Aid, Walmart and Costco.

In response, Walgreens informed Taylor that the chain does not plan to sell mifepristone in Alaska, despite the fact that both abortion and mifepristone are legal here, protected by the Alaska Constitution.

Walgreens is well within its rights as a private business to make the choice to not stock mifepristone or any other drug, of course. But the company has publicly stated it plans to provide the medication where it is legal to do so (which would include Alaska), yet not in the states whose attorneys general signed onto the letter (which also includes Alaska). This makes it clear that the missive had its intended effect: trying to bully private businesses away from providing the medication via warnings of potential legal consequences, regardless of state law. That kind of meddling should be anathema to administrations like Dunleavy’s, which often wave the flag of personal liberty and the right to freedom from government interference — when abortion isn’t the issue under debate.

Asked to clarify the attorney general’s stance with respect to the letters to pharmacies, Department of Law spokeswoman Patty Sullivan told an ADN reporter that Taylor’s signature “will not change nor is it attempting to change the way abortion drugs are available to Alaskan women.” It may be the case that the letters will not change the way abortion drugs are available, as several pharmacies the ADN contacted currently stock the drug and have not announced plans to stop. But it’s hogwash to claim that the letter doesn’t represent an attempt to restrict the supply of the drug — any reasonable person would see it for what it is, a shot across the bow of private businesses.

“Obviously, a federal criminal law—especially one that is, as here, enforceable through a private right of action—deserves serious contemplation,” the letter reads, a clear attempt at intimidation via potential lawsuit. Marijuana, like mifepristone, is a substance where distribution is restricted federally despite its legality in Alaska, yet we’ve heard of no similar letter from the attorney general to the dozens of Alaska dispensaries making thinly veiled threats to sue them over their products. This was absolutely a political message sent by Taylor, not some simple informational message apprising Walgreens of a law the company might not have known about.


It should also be noted that although Taylor and the other state attorneys general would be within their rights to sue if mifepristone were sent through the mail, jurisdiction over federal law enforcement is more properly the purview of the U.S. Department of Justice, and states like ours are usually far more skeptical about insisting on the stringent enforcement of federal laws that restrict the constitutional rights of Alaskans.

The participation in a lawsuit that would overturn the legality of mifepristone, as well as the letter’s reference to a federal law that could be broken by mailing the drug, despite the drug being legal in Alaska, are clear signals that the attorney general and this administration will seek to restrict the availability of the drug and of abortion generally however possible, regardless of the will of Alaskans and the privacy rights guaranteed to us under the state constitution. Despite Taylor’s insinuation to the contrary, abortion drugs are perfectly legal to buy, sell and use in Alaska, whether dispensed in person or by mail. (Update April 15, 2023: Although state officials have stated that abortion drugs can be legally dispensed via mail, the Department of Law issued guidance after the publication of this editorial that its position is that mailing drugs that can be used for abortions is illegal. Other entities disagree, and the matter remains in litigation.)

If the governor and his attorney general wish to curtail abortion rights in Alaska, as the governor has stated in no uncertain terms, they should be clear about their aim and push for a reversal of the Alaska Constitution’s guarantee of Alaskans’ right to privacy. It would be a wrongheaded move, as Alaskans cherish that right and should not give it up to a government seeking to restrict it — but at least then the administration would be trying to achieve its goals via a public process, not the attorney general sending vaguely threatening letters of advice that are obviously “based on what the law could or should be.”

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Editor’s note: This editorial has been updated since its initial publication to better clarify for readers the nature of the state’s participation in the mifepristone lawsuit and the Department of Law’s updated guidance on its stance relating to issues related to the mailing of drugs that can be used for abortions, which was not available when the editorial was first published.

Anchorage Daily News editorial board

Editorial opinions are by the editorial board, which welcomes responses from readers. Board members are ADN President Ryan Binkley, Publisher Andy Pennington and Opinion Editor Tom Hewitt. The board operates independently from the ADN newsroom. To submit feedback, a letter or longer commentary for consideration, email commentary@adn.com.