On Nov. 30, the American Civil Liberties Union (ACLU) teamed up with Planned Parenthood of the Great Northwest and Hawaiian Islands to sue the State of Alaska over abortion restrictions. This marks the sixth time since 1996 that the ACLU has sued the State of Alaska or one of its subdivisions over pro-life laws or policies, and the fifth time it has partnered with Planned Parenthood in doing so.
And the ACLU has a proven track record: Alaska Supreme Court decisions stemming from ACLU abortion litigation have all ended by striking down the pro-life measures in question. Another decision looms in 2017 with Planned Parenthood of the Great Northwest v. Streur, an appeal from a superior court judgment that found the State of Alaska’s denial of Medicaid funds for abortions to be unconstitutional. That case is currently scheduled for oral argument before the Court on Jan. 10.
Many Alaskans regard the ACLU as an engine for liberalizing abortion through the courts. But few realize the strategic importance of Alaska in the ACLU’s national efforts.
In its press release, the ACLU avowed that Planned Parenthood’s suit in Alaska, along with similar suits in North Carolina and Missouri, is part of a national effort “to challenge abortion restrictions.” However, there are significant differences among the state laws in question.
Alaska legalized abortion by statute in 1970, three years before the U.S. Supreme Court’s decision in Roe v. Wade. Part of that legislation required an abortion to be performed in a hospital or other facility subject to the approval of the State’s Department of Health and Social Services. Subsequent to Roe, Alaska enacted regulations stating that any abortion conducted past 12 weeks’ gestation, or second trimester, required a second physician’s consultation, an operating room equipped for major surgery, and access to a blood bank.
In contrast to Alaska’s law and regulations, Missouri passed a law in 2005 requiring that abortionists have hospital privileges at a hospital within a 30-mile radius and that abortion clinics be licensed as ambulatory surgical centers. The U.S. Supreme Court struck down a variation of this law enacted in Texas this summer in Whole Women’s Health v. Hellerstedt.
Meanwhile, North Carolina’s law protects unborn children from abortion once they reach 20 weeks old. Multiple states have recently passed similar 20-week abortion bans, including Ohio just this past month. However, like Alaska, North Carolina’s legislation was a response to the Roe v. Wade decision in 1973, which held that states could not legitimately outlaw abortions before viability, which is at about 20 weeks gestation.
Compared to both Missouri and North Carolina’s laws, then, Alaska’s abortion restrictions are relatively tame. And, with its sparse population, Alaska is typically low on national priority lists.
BETTING ON AK COURTS
So why include far-off Alaska as a “national front” locale? Because, as the ACLU well knows, any challenge to a pro-life law in Alaska courts is a veritable “slam dunk,” due to the Alaska judiciary’s absurdist renderings of the Alaska constitution.
This author previously discussed the Alaska Supreme Court’s abuse of the right to privacy in the Catholic Anchor (April 2015). A full analysis of the court’s abortion decisions is beyond the scope of this article. Suffice to say that the most recent decision issued in July 2016, which found even a mild parental notification law to be unconstitutional, demonstrates that the court remains likely to strike down any pro-life legislation, no matter how small.
Perhaps the best support for this thesis comes from the ACLU’s preferred tactics in the present litigation.
As most Americans are aware, the Democratic Party recently adopted an aggressively pro-abortion plank. North Carolina’s State Supreme Court has a current majority of Democrats, and Missouri’s Supreme Court was similarly tilted Democrat before one of its members died in late November. Yet the ACLU opted to file its Missouri and North Carolina cases in federal court, rather than state court. In general, this is because federal judges, who are appointed by the president for life, are often more willing to strike popular pro-life legislation than judges who have to run the gauntlet of state judicial retention elections.
In Alaska, where four of the five Alaska Supreme Court justices are Republican-appointees, one would therefore expect the ACLU to employ the same federal forum-shopping tactic. But not so. Filing suit in Alaska’s state court system, rather than federal court, indicates that the ACLU knows that Alaska’s state judiciary is the safer bet.
THE FIRST CIVIL LIBERTY
So what’s a Alaskan Catholic to do?
In his masterful 1995 encyclical Evangelium Vitae, Pope Saint John Paul II wrote that Catholics must “begin the renewal of a culture of life within Christian communities themselves.” And the first and fundamental step towards this cultural transformation “consists in forming consciences with regard to the incomparable and inviolable worth of every human life.”
Following a proper formation of conscience, Catholics should then “promote a serious and in-depth exchange about basic issues of human life with everyone, including non-believers, in intellectual circles, in the various professional spheres and at the level of people’s everyday life.”
In the case of the ACLU, an organization that professes to defend civil rights, it is tragically ironic that it should neglect the fundamental right to life in favor of a “right to privacy” or “right to reproductive health.” This irony was not lost on Pope John Paul II, who lamented those “associations which systematically campaign for the legalization and spread of abortion in the world. It is a most serious wound inflicted on society and its culture by the very people who ought to be society’s promoters and defenders.”
Following the guidelines laid down by Pope John Paul II, Catholics should take steps to form their conscience in accord with church teaching, and then engage their opponents in charitable, if vigorous, debate — which includes monitoring and opposing the ACLU’s continuing efforts to subvert Alaska law.