Analysis: Time for Alaska to rethink ‘right to privacy’ relating to abortion

CatholicAnchor.org
When Alaska became the 49th state in 1959, no right to privacy existed in its constitution. In fact, it was not until 1972 that the right to privacy was enshrined as a constitutional right in Alaska. When the state began developing a computer database of criminals in the early 1970s, Alaskans’ concerns about government intrusion came to a head. As such, the legislature, with popular approval, passed the following amendment: “The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”

As a legal theory, the right to privacy was invented by two influential American lawyers at the end of the 19th century. The pair argued that, given the rapid development of instantaneous photography and news media, a legal counterbalance was required to secure the “right to be let alone.” One of these lawyers, Louis Brandeis, went on to become a justice of the U.S. Supreme Court.

Although initially formulated as a prohibition against the intrusion of the press into private lives, the right to privacy eventually became applied against government interference into the lives of private citizens.

ROE V. WADE

In 1972, Alaska was one of a growing number of states that had legalized abortion. But legal academics predicted that the U.S. Supreme Court would soon overturn all state laws restricting abortion by citing the right to privacy. This was a logical, if immoral, leap. The U.S. Supreme Court had previously found a right to privacy in the federal constitution under the Ninth Amendment, and used it to overturn anti-contraception laws in the states.

And on Jan. 22, 1973, the Supreme Court “discovered” the right to abort an unborn child within the U.S. Constitution in Roe v. Wade. But rather than using the Ninth Amendment, the court infamously divined that “emanations from the penumbra” of the Fourteenth Amendment required that a woman’s right to abort her child be held sacrosanct.

At the time, even pro-abortion legal scholars were befuddled by the illogic of Roe. One of them quipped that the Court’s analysis “offers no reason at all for what the Court has held.” Few believed Roe would survive the decade, so tenuous were the reasons holding the opinion together. But, as most Americans know, Roe has remained the law of the land for 42 years.

ABORTION & PRIVACY IN ALASKA

What does this have to do with Alaska’s right to privacy clause? Plenty.

Most states took Roe as the final judicial word on abortion. Alaska was no exception. No one expected that a judge would use the right to privacy in Alaska’s constitution to further liberalize abortion, firstly because the United States Supreme Court had the opportunity to do so, and did not.

Secondly, as voting Alaskans knew, our right to privacy amendment in 1972 had nothing to do with abortion, and everything to do with government surveillance and intrusion. Besides, the Alaska Legislature had been specifically tasked with the implementation of the clause.

But subsequent to its passage, the Alaska Legislature only occasionally cited the privacy clause in enacting laws. Most examples involved statutes which prevented the State of Alaska from disclosing confidential records. At no time did the Alaska Legislature explicitly “implement” the privacy clause, as instructed by the language of the amendment itself.

This proved a fatal error.

In 1997, the Alaska Supreme Court used the state’s privacy clause to compel the non-profit Valley Hospital Association to provide abortions over the objections of its board of directors. Later, in 2001, the Alaska Legislature went to the Alaska Supreme Court to argue that it was the legislature, not the Alaska Supreme Court, which was given the constitutional mandate to implement the right to privacy clause. Unsurprisingly, the Alaska Supreme Court disagreed, stating that the Alaska Constitution’s mandate “simply signals the need for legislative guidance.”

Since then, the Alaska Legislature has been silent about its prerogative to implement the privacy clause. The Alaska judiciary, seeing an empty battlefield, has continued to advance abortion by using the Alaska Constitution to strike down most pro-life legislation. The most recent example was Senate Bill 49, which was blocked by Anchorage Superior Court Judge John Suddock last year, pending a legal challenge by Planned Parenthood, which is now unfolding in Anchorage Superior Court.

WHAT DOES THE CHURCH SAY?

Has the Catholic Church weighed in on these issues? Yes.

As Pope Francis and his predecessors have repeatedly stated, the right to life is the first among human rights. It may come as a surprise to Alaskans that the state’s constitution agrees, and is primarily “dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry.” Therefore, it is no logical leap for Alaskans to demand that a right to privacy be weighed against the natural right to life.

Second, the church has long-foreseen and condemned the modern state’s tendency to intrude. Pope Leo XIII, in the 1891 encyclical Rerum Novarum, stated that the government’s arbitrary intrusion into the privacy of homes is a “great and pernicious error.” But, as Pope Leo affirms, this principle cannot be separated from the ideal of the family as the unit of society and preservation of the common good. Hence, it is proper for both the individual and the family to retain freedom of action so long as it does not “jeopardize the common good,” nor “injure anyone.”

With its interpretation of the privacy clause, however, Alaska’s judiciary has required non-profit hospitals to provide abortions, nullified parental consent requirements and blocked other pro-life statutes and regulations.

Weighed against either church teaching or the natural law, these decisions do not pass muster. Abortion clearly injures others — not only the child in the womb, but also many of those who are involved in the decision to abort. Moreover, by forcing non-profit organizations to act against their principles and arrogating to itself power that was specifically delegated to the Alaska Legislature, the judicial branch of Alaska has damaged the common good.

Most Alaskans recognize that Roe v. Wade liberalized abortion and overturned pro-life laws. But many do not know that the Alaska judiciary has followed suit by whimsically interpreting Alaska’s right to privacy in a manner that suits its pro-abortion philosophy.

An effort by the Alaska Legislature to defend life by overturning these cases should be welcomed as constitutionally legitimate and consonant with church teaching.

The writer practices law in Anchorage and regularly reports for the Catholic Anchor.