Earlier this month, the U.S. Supreme Court heard oral arguments in a legal case that may overturn longstanding precedent and allow states to significantly restrict access to abortion services.
If the court overturns the precedent in Roe v. Wade, Alaska’s constitutional privacy protections and rulings by the state Supreme Court will preserve abortion access here.
But those familiar with the issue predict a major political fight over the future of abortion access in Alaska.
“What I want to emphasize is if Roe v. Wade is overturned, then abortion will still be safe and legal in Alaska,” said Rose O’Hara-Jolley, state director for Planned Parenthood Alliance Advocates.
That comes with a caveat, they said: There are efforts in Alaska to change the constitution and allow a ban.
Sitting lawmakers say the Legislature likely lacks the votes to pass a constitutional amendment, which could change the part of the state constitution that the Alaska Supreme Court has relied on to preserve abortion rights.
With that avenue blocked, some abortion opponents are planning to campaign in favor of a constitutional convention. A previously scheduled vote will take place in November 2022, asking Alaskans whether or not they want to call a convention.
“God has provided a wonderful opportunity for the people to directly amend our Constitution and remove the Alaska Supreme Court from manufacturing a ‘right to abortion’ in it,” said Jim Minnery, president of a leading Alaska anti-abortion group, in an early December letter to supporters.
Those defending abortion access are also aware of the potential a constitutional convention holds.
“If this happens, we could see attacks on the protections that keep abortion safe and legal in Alaska,” said Jen Allen, Planned Parenthood Alliance Advocates’ chief executive officer, in August.
Alaska Supreme Court rulings hold sway
After hearing arguments early this month about a Mississippi law that would ban abortions after the 15th week of pregnancy, members of the U.S. Supreme Court signaled that they will allow states to more stringently limit abortion and may allow states to ban it entirely. A ruling isn’t expected until summer.
In at least 12 states, abortion would immediately become illegal if Roe v. Wade is overturned. Fifteen states and the District of Columbia have a codified right to abortion, meaning it would remain legal.
Alaska doesn’t fall into either of those categories.
Here, access to abortion is guaranteed by a clause of the Alaska Constitution that protects individual privacy. In 1997, the Alaska Supreme Court ruled that “reproductive rights are fundamental, and that they are encompassed within the right to privacy expressed in article I, section 22 of the Alaska Constitution.”
“These fundamental reproductive rights include the right to an abortion,” the court said.
“No matter what the U.S. Supreme Court decides in the cases that are pending in front of it now, nothing changes for Alaska women that day or the next day, because the right to reproductive choice in Alaska is guaranteed by the Alaska Constitution,” said Susan Orlansky, an attorney who worked on many of the abortion-related lawsuits that have reached the state Supreme Court.
In subsequent rulings, Alaska Supreme Court justices have built upon that 1997 decision, saying that minors seeking abortions also have a right to privacy, and that the equal-protection clause of the state constitution forbids the state from defunding abortion services paid for by Medicaid.
‘A public battleground inside a woman’s body’
Historically, Alaska was a pioneer in abortion rights. In 1970, three years before Roe v. Wade, the state legislature voted to legalize abortion under the principle that it was a decision between a woman and her doctor. Then-Gov. Keith Miller attempted to veto the legislation, but lawmakers overrode that veto.
More recently, legislators have repeatedly sought to defund or limit access to abortion, but their actions have been generally ruled unconstitutional.
In November, for example, a state superior court judge ordered the suspension of a state law that prohibits nurse practitioners and physician assistants from providing medication that can induce abortion. The Alaska Department of Law is continuing to defend the law, and the case is set to go to trial in July.
Sen. Shelley Hughes, R-Palmer, has proposed a constitutional amendment known as SJR 4 that would redefine the privacy clause of the state constitution to specifically exempt abortion, something that would allow the Legislature to then pass legislation restricting it.
The state of Tennessee followed a similar path, approving an amendment in 2014. Legal challenges saw its implementation delayed until 2018.
In public testimony this spring, Alaskans who opposed the amendment said they were against the idea of forbidding a woman from making her own health care decisions.
“Conservatives rail against excess government regulation, yet SJR 4 represents government intervention of the worst sort: imposition of personal religious values on the governed, politicizing the delivery of health care, and creating a public battleground inside a woman’s body,” wrote Lynn Escola of Petersburg.
Those supporting the amendment generally said they believe human life begins at conception, when an egg is fertilized, and opposed the idea that state courts have decided the issue here.
“These are ‘human lives’ we are taking; abortion is not humane in any form,” wrote Barbara Gaston of Fairbanks. “There is much more to say, but this bill to begin the process of protecting the unborn in Alaska is nothing short of a blessing from God.”
Statewide polling on the issue is scattered but appears to indicate majority support for abortion rights. In 2017, an Anchorage Daily News poll found 63.5% of Alaskans support the Roe v. Wade decision. A Pew Research Center poll in 2019 found 63% of Alaskans say abortion should be legal in all or most cases.
Published polls paid for by abortion-rights groups have found a similar pattern. But in 2010, which brought the only statewide vote on an abortion-related topic, Alaska voters supported a ballot measure requiring the parents of an underage child to be notified if their child seeks an abortion. That measure was later struck down by the Alaska Supreme Court.
Abortion opponents pin hopes on convention
Passing a constitutional amendment in Alaska requires approval from two-thirds of the state House (27 of 40 members), two-thirds of the state Senate (14 of 20 members) and a majority of participating voters in the next general election.
Minnery, who is executive director of the Alaska Family Council, has sought for years to make abortion illegal and believes amending the state constitution is necessary to end it in the state. He also believes the makeup of the state House and Senate make it impossible to reach the two-thirds threshold.
“There’s no shot, there’s really no shot with the two-thirds,” Minnery said.
In the Alaska House and Senate, support for an abortion ban — or at least heavy restrictions — has come almost entirely from Republicans. The House is controlled by a 21-member, predominantly Democratic coalition, although that could change after next year’s elections.
Instead of pushing the Legislature now or awaiting the results of next year’s legislative elections, Minnery is preparing to support a constitutional convention. Alaska voters are asked every 10 years whether they want to call a convention, and the next vote is in November 2022.
Other abortion opponents, including Bob Bird, chairman of the Alaskan Independence Party, see a convention as their preferred tactic.
Minnery feels fortunate that the convention question is arriving just as the U.S. Supreme Court is poised to decide the issue, “and so this is a very opportune time for those who are serious about protecting unborn Alaskans,” he said.
However, if voters approve a convention next year, it’s impossible to say right now whether Alaskans would then pick convention delegates who favor ending abortion.
Even if they do, change would not happen quickly.
If voters approve a constitutional convention, the prospective timeline calls for delegates to be selected in the 2024 statewide election and a convention to take place afterward. Alaskans would be asked in 2026 to approve or disapprove the result. If they vote it down, the current constitution remains.
The Alaska Legislature could speed up that timeline by calling a special election in 2023, allowing a draft constitution to be considered by voters in 2024.
Correction: The original version of this article used an incorrect pronoun for Rose O’Hara-Jolley. O’Hara-Jolley’s pronouns are they/them.