Alaska Gov. Mike Dunleavy shakes the hands of state legislators as he prepares to deliver the 2023 State of the State address to the Alaska Legislature on Monday, Jan. 23, 2023, in Juneau, Alaska. At the close of the address, he said he wanted Alaska to be the most "pro-life" state in the country, without using the word "abortion." (Photo by James Brooks/Alaska Beacon)
Alaska Gov. Mike Dunleavy spent the last five minutes of his recent State of State address talking about becoming “the most pro-life state in the country,” conspicuously never using the word “abortion.”
He and many other Alaska politicians have been trying to chip away at Alaska’s constitutionally protected right to access an abortion. Some efforts have lasted decades. Despite this, abortion in Alaska remains legal and there are efforts currently underway that could mean even greater access to reproductive health care.
“We stand on a precipice of the potential to greatly expand not only abortion access but health care access in this state,” said Rose O’Hara Jolley, Alaska state director for Planned Parenthood Alliance Advocates.
A constitutional amendment from Dunleavy?
Dunleavy was elected in 2018 after saying he opposed abortion, including in cases of rape or incest. More recently, he’s emphasized that being a “pro-life state” means changing policy and taking action to increase Alaska’s population.
“We need more people in Alaska, not less. We need more people in our jobs. We need more people in our schools. We need more people who create wealth,” Dunleavy said during his Jan. 23 State of the State address. “We need more families achieving the American dream.”
He mentioned his Healthy Families Initiative, which includes a bill to extend Medicaid coverage for new mothers from 60 days to one year.
“I know this may sound strange to some, but we have to make it OK. We have to make it OK again to have families, to put a family together and to have children,” he said. “Kids are a blessing and they shouldn’t be viewed as a burden.”
About a week later, Dunleavy was a guest on Alaska Public Media’s Talk of Alaska, hosted by Lori Townsend. Clarification about what he meant by “pro-life state” came up.
“We didn’t mention abortion in my State of the State speech. It was about being the most pro-life state; interconnected issues at some levels, but also not at others,” he said.
Townsend replied: “Well, when you say pro-life, people automatically assume that you’re talking about access to abortion.”
“Right, and what I laid out was a place that’s inviting for family, supportive of families,” Dunleavy said.
He again brought up expanding Medicaid for postpartum mothers.
“You’re pro-life if you make Alaska a more inviting place for people to come and want to have families, whether that’s better schools, whether that’s cheaper housing, cheaper fuel,” Dunleavy said.
Townsend sought clarification: “So you’re not talking about … trying to repeal or amend the right to privacy here?”
“I don’t think there’s anyone in the state of Alaska that doesn’t know that I’m pro-life, that if (the right to an abortion) in Alaska was repealed, I think that would be a good thing. The question is, how does that happen? It only happens through a constitutional amendment. And if this Legislature is not interested in passing a constitutional amendment, it makes it difficult,” Dunleavy replied.
Dunleavy hasn’t yet proposed any legislation this year that could lead to restrictions on abortion rights. But, last June, when the U.S. Supreme Court overturned Roe v. Wade, ending the federal constitutional right to abortion, he said he’d take action.
In a press release, Dunleavy said the court presented “an opportunity for the people of Alaska, not a handful of elected officials or appointed judges, to decide the future of abortion in Alaska.”
He said he would propose a constitutional amendment on whether abortion should be a protected right. Back then though, it wasn’t known if Dunleavy would remain governor. It was the middle of the summer and the election was still months away.
Dunleavy ended up winning. So did more than enough legislators who block a constitutional amendment on abortion. What didn’t win? A constitutional convention.
Voters handily rejected holding a constitutional convention, which was championed by conservatives. A convention could have challenged Alaska’s abortion rights.
A few weeks after the election, before his holiday open house, Dunleavy spoke again about the resolution in response to a question.
“Basically what it would do is allow the people themselves to decide if abortion would be legal in all cases, if abortion would be limited in certain cases,” he said.
But Dunleavy wasn’t sure at that point if he would introduce it during this legislative session:
“We’re discussing that. Given the nature of the Legislature, we don’t know where that will go,” he said.
By February, his office still didn’t give a definitive answer.
The ups and downs of the parental consent bill
For the past few decades, Alaska lawmakers have focused on restricting abortion through state law, not the state constitution. They’ve introduced several bills almost every session to weaken Alaska’s right to access an abortion. A couple have resulted in Alaska Supreme Court cases. The details of the cases show why it’s been so hard to restrict this right.
In 1997, the Legislature debated a bill requiring minors to get permission, or consent, from a parent, guardian or court before they could receive an abortion. The journey of the parental consent bill would last close to two decades, and was a rollercoaster.
Speaking on the Senate floor, bill sponsor then-Sen. Loren Leman, R-Anchorage, said the bill was “a small step toward making abortion less plentiful.”
“If we can encourage children to communicate with parents, I believe that will help reduce the number of abortions and certainly will help children make more intelligent decisions,” he said.
He said there was “common ground” on the issue of parental involvement.
“This is not an abstraction. There are very real cases where parents have not been notified that their daughters are having an abortion. In fact, in some cases, the daughters were encouraged by school counselors, perhaps friends and others to get an abortion and not notify their parents,” Leman said.
These situations, he said, present health risks.
Then-Sen. Johnny Ellis, D-Anchorage, said delaying care, which the bill would do, could threaten the health and life of the person seeking an abortion. Ultimately, he said, the bill infringes on a person’s constitutional right to have an abortion. A yes vote on the bill is “anti-choice,” he said.
“With all due respect to those who have pushed this bill diligently over the years, I believe their ultimate goal is to chip away at the right to choose and to force others to adhere to their sense of morality. The ultimate objective is to make abortion illegal in our state and that should concern anyone who values their constitutional rights and their freedom,” Ellis said.
The bill passed in the Senate and House. But Tony Knowles, the governor at the time, vetoed it. He called the bill a “new restriction on the constitutional protections afforded all Alaskans,” and said it was “constitutionally vague and unnecessary.”
He also got personal in this veto letter: “It would break my heart if my teenage daughter found herself in similar circumstances and felt she could not come to me or her mother for our counsel. But I would far rather she go to a family friend or relation than be forced to go to a court and deal with strangers. This bill does not allow that to happen.”
The Legislature overrode the governor’s veto. So the bill ended up in the courts, and, a decade later, the state Supreme Court struck down the parental consent bill, saying it violated minors’ fundamental right to privacy under the Alaska Constitution.
The fight for parental consent doesn’t end there though. For two legislative sessions in a row,, Coghill introduced similar legislation, which failed to pass.
But in 2010, citizens initiated a ballot measure that would require doctors to notify parents when a minor was seeking an abortion, and penalize doctors who did not receive parents’ consent. It passed and became law, with 56% voting yes
Then in July 2016, the Alaska Supreme Court overturned the state’s parental notification law.
Again, Alaska Supreme Court judges said a law violated the state constitution’s right to privacy – as well as its equal protection clause.
Failed attempts to stop state funding of abortions
There was another major legislative fight over abortion. This one has been over state funding.
In the late 1990s, the state government stopped funding abortions for low-income residents.
In 2001, the Alaska Supreme Court ruled that Alaska was violating the equal protection clause, and the state must fund these abortions. It found that if the state chooses to fund other medically necessary care related to pregnancy under Medicare, it must also cover medically necessary abortions.
More than a decade later, in 2013, lawmakers – including then-Sen. Mike Dunleavy – sought to define “medically necessary” in an effort to limit state funding for what they considered elective abortions.
The bill narrowed the definition to cover only cases of rape or incest, or if the abortion prevented “serious risk to the life or physical health” of a pregnant person. It listed physical conditions, like seizures, kidney infection and congestive heart failure, but did not include any mental health conditions.
Coghill, who had become a senator, was the bill sponsor., He said the bill “pivots only on one question: Who pays for medically necessary (abortions) and who pays for elective?”
He later added:
“One member on the body here reports that that should be between the doctor and woman. I agree. But when you’re asking other people to pay for it, you’re asking them to be included in that decision too, and so if it’s purely elective, that should be between the doctor and a woman, between the person and their checkbook. If it’s truly medically necessary, we as a people, we want to step up and say we’re here to help,” he said.
Pete Kelly, also a Republican in the Senate from the Fairbanks area, wanted the Legislature to stand up for itself: “We seem to have just handed so much over to the court. They are not our masters. We make the laws and we should defend our branch of government.”
Gabrielle LeDoux, a Republican representative from Anchorage, said the bill didn’t limit a person’s right to choose.
“Equal protection does not mean that the government pays. We’ve got the right to travel, but that doesn’t mean the government buys us a ticket to Paris. We’ve got a right to bear arms but the government doesn’t buy us a Sturm, Ruger,” she said.
A variety of arguments were also made against the bill in 2014.
Harriet Drummond, a Democrat representing parts of Anchorage in the House, said she’d often heard lawmakers talk about government overreach.
“If you’re a poor woman, or a health care provider, this is the worst kind of interference one can imagine. I’ve listened to this body complain about regulation and interference with everything from gold miners to traffic signals. But when it comes to women’s bodies and their health, I suppose regulation and interference by this Legislature is just fine,” she said.
Sen. Bill Wielechowski, D-Anchorage, said: “We’re talking about a constitutional issue here. … You can’t pass laws to change the constitution, and that is what we’re trying to do here.”
Hollis French, also an Anchorage Democratic senator, said the court had already decided the issue in 2001.
“If a Medicaid-eligible woman is pregnant, and the state elects to provide some aid to her like (an) ultrasound, or well mom visits or the coverage of delivery costs, it cannot then turn around and restrict her reproductive freedom rights for other aspects of her pregnancy that may be medically necessary,” he said. “The court’s opinion in 2001 was unanimous. It is not a close legal call. The selective denial of medical benefits violates Alaska’s constitutional guarantee of equal protection. This bill will be struck down.”
Then-Rep. Geran Tarr, D-Anchorage, said she was uncomfortable with the statement that the Legislature would make if this bill passes, “that it’s OK to treat poor women differently than other women.
“All women in Alaska deserve equal protection under the law. All women in Alaska should have access to this right. That is the right to reproductive freedom to make choices in the privacy of that doctor’s office,” Tarr said.
The bill defining a “medically necessary” abortion passed in 2014.
Five years later, the Alaska Supreme Court struck it down, saying it violated the state constitution’s guarantee of equal protection. A lower court, years earlier, had already barred the measure from being enforced.
Within those five years that it took the state Supreme Court to make that decision, Dunleavy went from being a state senator to being the governor.
And in 2019, he tried to take action on his own. To show his dislike for the courts’ decisions surrounding medicaid funding for abortion, he vetoed about $335,000 from the courts’ budget. He said that was the amount the state spent on elective abortions the year prior.
“The Legislative and Executive Branch are opposed to State funded elective abortions,” a budget document said, “the only branch of government that insists on State funded elected abortions is the Supreme Court.”
This veto was partially what led a group to form to recall Gov. Dunleavy. An Alaska court eventually ruled his veto as being unconstitutional.
Despite the Alaska Supreme Court upholding the right to abortion over and over again, the Alaska House has repeatedly voted to amend the budget to eliminate state funding for abortion.
Then-Rep. Chris Kurka, R-Wasilla, proposed the amendment in 2022.
“It also cuts $350,000 from the Medicaid budget, which is a very, very small estimate of how much the state of Alaska pays every year to kill kids in the womb,” he said on the House floor.
The House amendment that passed on the floor didn’t make it into the final budget. The language from the Senate was more symbolic, didn’t make any actual change to state practice and avoided the possibility of yet another court case.
For decades, Alaska has elected several governors and legislative majorities – and even passed a ballot measure – that have tried to restrict abortion rights. And the Alaska courts’ interpretation of the state constitution have stood in their way.
Planned Parenthood v. State of Alaska (again)
The state is in a legal battle over abortion right now, and the case has already resulted in greater access to abortion for Alaskans.
At the end of 2019, Planned Parenthood filed a lawsuit challenging an Alaska law that says abortions can only be performed by a physician. It was also challenging a regulation indicating that medication abortion cannot be administered by nurse practitioners or physician assistants.
Before the lawsuit, that meant, for abortions that occur through the use of medication, “a clinician or physician needed to meet with the patient in person and prescribe and hand that medication to the patient,” Planned Parenthood’s O’Hara-Jolley said.
O’Hara-Jolley said the requirement to have a physician not only prescribe but hand out themedication was an unnecessary burden, especially for people who have to travel to one of only three Planned Parenthood health clinics, in Anchorage, Fairbanks or Juneau.
Planned Parenthood is the main health care provider in Alaska that offers abortions, and physicians may only be available one day a week at each clinic, whereas advanced nurse practitioners are more readily available. Nurse practitioners or physician assistants are licensed health care providers with advanced education and training, and Planned Parenthood argued, are qualified to hand out the medication required for a medication abortion.
In Nov. 2021, a Superior Court judge agreed and granted Planned Parenthood’s motion for a preliminary injunction. That means, while the rest of the court case plays out, who can hand out the medicine for medication abortion has expanded beyond just physicians.
“Now we can do telehealth appointments from our health care centers, where you can telehealth with a clinician, they can prescribe it to you and an advanced nurse practitioner can hand it to you,” O’Hara-Jolley said.
In granting the preliminary injunction, the court said Planned Parenthood was likely to succeed on the merits of its claim. Planned Parenthood argued that prohibiting advanced practice clinicians, like nurse practitioners, from providing medication abortions violates patients’ constitutional rights to privacy and equal protection.
The court said medication abortion has a low risk of complications. And the state was unable to justify to the court why advanced practice clinicians couldn’t administer medication abortions when they use the same type of medication to treat patients experiencing miscarriages.
At the moment, people still have to physically go to Planned Parenthood, but the wait time to have a physician hand you the medication is now gone.
“It’s allowing for more appointments and more availability, especially with something like medication abortion where time is of the essence and does matter. It’s allowing for the expansion of access to that care across the state,” O’Hara-Jolley said.
Medication abortions can be done up until about 10 or 11 weeks of pregnancy.
Currently, the case is scheduled to be heard in March.
Planned Parenthood officials have said that ideally, in the future, the organization could expand the service by partnering with other advanced nurse practitioners to eliminate the need for people to have to travel to a Planned Parenthood clinic.
“I am optimistic in the future about us being able to continue to expand access to this care, but this is a first expansion and so moving in the right direction,” O’Hara-Jolley said.
The current Legislature
In the new Legislature, so far there’s been only one resolution introduced to challenge Alaska’s right to an abortion. Shelly Hughes’ Senate Joint Resolution proposes amending the state constitution to add this:
“To protect human life, nothing in this constitution may be construed to secure or protect a right to an abortion or require the State to fund an abortion.”
This resolution is the same legislation Hughes has sponsored before, most recently in 2021. That year, it was one of several measures regarding abortion.
In Alaska, despite Roe v. Wade being overturned, any effort to restrict abortion rights faces obstacles. The state Senate majority has said they likely won’t take up abortion bills. The Alaska courts have a consistent record of upholding abortion as a right. And even Dunleavy, a newly reelected governor who describes himself as pro-life, hasn’t proposed abortion restrictions this year.
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