Abortion & The Constitution

Do you remember where you were and what you were doing when the pending Dobbs v Jackson Women’s Health opinion was leaked and posted by Politico last year?

I had to pull off the Palmer-Wasilla Highway to read the text a buddy sent me.

A lot has happened since then with several states passing and enforcing heartbeat bills, several states enacting near-total bans, and states like Alaska pretending that nothing happened.

That’s not entirely accurate.  Pregnancy Resource Centers were vandalized in Alaska just like they were in almost every other state.  Likewise, Planned Parenthood and their abortion activists went crazy marching and rallying in several cities across Alaska.

They brought their crazy to the Alaska State Fair where they harassed Alaska Right to Life volunteers on a daily basis with some of the most bizarre behavior we’ve ever seen, including warnings from Antifa affixed to our fair booth.

What was, and remains lacking, however, is any meaningful response from our elected representatives in either the Legislature or Governor’s office. 

The near-total silence from the Governor is striking, given his Attorney General signed on to the Texas Amici Brief that called for overturning Roe v Wade.  One must ask, why call for overruling Roe v Wade for the benefit of babies in other states while Alaska’s “Roe,” the 1997 Valley Hospital decision remains intact and unchallenged?

Another question we can ask – and I may be able to answer, is how was Roe overruled, and what arguments can we bring to Valley Hospital and to overturn “Alaska’s Roe?”

That’s a great question, and I’m glad you asked.

First, let’s take a quick look at the Dobbs Opinion.  The Dobbs v Jackson Women’s Health Organization case focused on a 15-week abortion ban in Mississippi. 

The case was argued at the US Supreme Court in December 2021 with a decision expected in the spring of 2022.  During the oral arguments, Mississippi argued for the overruling of Roe v Wade, as the enforcement of their law would contradict Roe in many ways, and because Roe was wrongly decided in the first place, it should be overruled. 

The final Dobbs Opinion was issued on June 24, 2022, and became effective in August 2022.

The opinion focused on five key considerations:
1. The Constitutional Question
2. Stare Decisis
3. Respect for the Rule of Law and the Court
4. The Standard for the States
5. Roe and Casey Arrogated the State’s Authority to Regulate or Prohibit

Over the next few weeks, I will review each of these key considerations in the expectation that we can find some lessons from the Dobbs opinion that we can apply here in Alaska.

The constitutional question is considered in three steps.  Today we’ll look at the standard by which a matter is judged.

A Fixed Standard.  While many people argue that the constitution is somehow a living document, the Supreme Court is to begin with the “language of the instrument,” meaning the constitution itself.  The US Constitution, Justice Alito argued “provides a “fixed standard” for ascertaining what our founding document means.” 

Within the framework of a fixed standard, we can review one of the key components of Roe and Casey, the 14^th Amendment.

Abortion proponents argue that the Equal Protection and Due Process Clauses of the Fourteenth Amendment provide for the right to kill a baby before he’s born. 

14^th Amendment, Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Born Persons.  Abortion advocates argue somehow that the 14^th Amendment, which was focused on racial inequality immediately after the Civil War was focused on stripping children waiting to be born of their rights as citizens.  If the consequences were not so horrific, the argument would be laughable.  Comparing citizens born in America and those naturalized as American citizens cannot possibly be interpreted to mean that only persons born (as opposed to those not yet born) have rights as citizens.

Equal Protection.  Abortion advocates applied the 14^th Amendment’s equal protection clause to justify killing babies.  They claim that pregnancy and parenting infringe on women’s freedoms and liberties in a way that they do not infringe on a man’s rights, which only a fool would offer an argument against. 

DISCLAIMER I am using the abortion proponent’s language here in describing pregnancy and parenting to be infringements on freedoms, liberties, and rights.

Back to the equal protection argument: you’ll also hear abortion proponents use the term “heightened scrutiny,” which is applied to laws that may discriminate based on sex in their attempts to create, recognize, or protect the abortion right within the Fourteenth Amendment.  
Of course, that is a completely erroneous application of the protection clause, since an attempt at or equal protection for pregnant mothers would require men to somehow be equally burdened by pregnancy and parenting. 

Furthermore, the application of the protection clause in their argument leaves the baby out of the argument.  Somehow in the case of a pregnant woman, abortion advocates only recognize the mother’s loss of freedom and liberty in comparison to the father, and to the complete exclusion of the baby, without whom there would be no pregnancy.

But just as no rational and sane person would argue that men and women suffer the difficulties of pregnancy and parenting equally, no sane person would they argue that since inequality during pregnancy cannot be resolved, then the proper course of action is to kill the baby.
In the case of Roe v Wade, the Dobbs opinion makes it clear that since anti-abortion laws are written to protect babies, not their mothers, they are not sex-based laws, not subject to heightened scrutiny, and are not considered an infringement on a mother’s equal protection rights.

Due Process.  Due process rights require simple but critical legal doctrines to be followed before any person is deprived of life, liberty, or property.  We usually think of due process rights in criminal cases in which the person charged with a crime must be able to face his accuser, be presumed innocent until proven guilty, and be afforded a trial before a jury of his peers.  Due process rights look similar in non-criminal cases, but the essence of due process protections is they are supposed to guarantee that a just legal process is followed before any person loses their property (confiscation), liberty (jail), or life.

The Fourteenth Amendment’s Due Process Clause protects two categories of rights. 

First, we find explicitly recognized rights that are equally applicable to the states.

These rights have two key characteristics:
1. They are explicitly recognized – such as the right to life and liberty.
2. They are equally applicable in every state.

The first eight Amendments in the Bill of Rights were found to be equally applicable to the states.  I’m sure you’re familiar with these…
1) Freedom of speech and religion
2) Right to keep and bear arms
3) No quartering soldiers in private homes
4) Protections against unreasonable searches and seizures
5) Grand jury and due process protection rights
6) Criminal prosecution rights
7) Common law claims and suits
8) Protections against excessive bail, fines, punishments

It is interesting to note that the Fifth Amendment states that, “no person shall be… deprived of life, liberty, or property, without due process of law…”  Since that is true, should not the child in the womb be protected from abortion from the moment of conception?  Though Justice Alito references the Amendment in general, he never turns to it as a primary source of rights and protections for babies – certainly a disappointing gap in the opinion.

The second category of rights includes a very select list of rights not explicitly mentioned in the Constitution, and the legal analysis required to determine if they are, in fact, fundamental to “our scheme of ordered liberty.” 

Determining whether rights not explicitly mentioned in the constitution are to be recognized and protected requires judges to consider whether the right in question is:

– Fundamental to “our scheme of ordered liberty,” meaning that the right in question – the right to kill a baby before he is born – must be consistent with other explicitly recognized rights within the fixed standard of the constitution, the origins of the Amendments, the debates in Congress at the adoption of the Constitution and any applicable Amendments (such as the 14^th), as well as any state constitutions in effect at the time.

– Deeply “rooted in our history and tradition” means that we must find a long history of similar liberties and traditions.  Prohibition failed in part because there was clearly a long history and tradition of alcohol consumption in America. Slavery likewise failed in part because it was a traditional, historical, and constitutional disgrace.

Conversely, there was actually a long history and tradition of prohibiting abortion throughout all of America’s history and dating back 800 years into Great Britain’s history.

To summarize, for abortion to be recognized and protected within our constitutional framework, such an argument must include at least:
1) Support from the fixed standard of the US and Alaska Constitutions as written and understood at our nation’s and/or our state’s founding.  In other words, the right to kill babies waiting to be born must be written in plain 1780s (US) and 1950s (Alaska) constitutional language so as to establish such a right.  Since that is obviously not the case, then the fixed standard of Alaska’s Constitution must recognize similar rights from which the right to abortion would be interpreted.  In order for an interpreted right to be recognized and protected under a constitutional framework, it must meet the following additional criteria.

2) Since abortion is not explicitly recognized within the fixed standard of the constitution, then killing babies before they are born must be fundamental to our scheme of ordered liberty,” as established by significant research into that abortion’s “origins, meaning, and purpose.”  As you know intuitively, and will see in following posts, the assertion that abortion is fundamental to our scheme of ordered liberty is not only repugnant but impossible to support.

3) Finally, the right to abortion must also be found to be “deeply rooted in this [State’s] history and tradition.”  Again, you know this cannot be the case.  As I’ll share in the following posts dealing with history and tradition, you’ll see that abortion was outlawed in Alaska from territorial days in 1899 all the way up to 1970.

Without explicit constitutional recognition such as that for life, liberty, freedom of speech, and worship, the right to abortion must be a long standing part of our history and tradition here in Alaska, as well as be as much a part of our “scheme of ordered liberty” as are hunting, fishing, skiing, and snowmachining.

If there were a truly legitimate constitutional right to abortion, then Article 1, Section 1 would not recognize that “all persons have a natural right to life… equal rights… equal protection, and equality before the law.” 

While individual rights can often be held in tension, the Constitution does not contradict itself.  You will not find a right to property and a conflicting right to take property.  Similarly, you will not find a right to life and a conflicting right to take a life.

When we peer into the history of abortion laws and court cases – along with our US and Alaskan Constitutions, we see that there could never be a constitutional right to kill babies.

Both the US and Alaska’s Constitutions make it clear that the right to life is explicitly recognized and protected as are the promises of equal rights, equality, and equal protection under the law.  Roe, Casey, and Valley Hospital nullified these explicitly recognized constitutional rights for babies waiting to be born in favor of a mother’s interpreted right to sexual and bodily autonomy expressed in killing her baby.

If the Fifth Amendment to the US Constitution declares “no person shall be… deprived of life, liberty, or property, without due process of law…”  and Alaska’s Constitution begins with the dedication “to the principles that all persons have a natural right to life,” then how could abortion be legal, let alone a constitutional right?

And since there is no right to abortion in the US Constitution, and since there is a positive right to life in Alaska’s Constitution, then why are we not demanding our governor and legislators immediately ban and forever prohibit killing babies?

We continue to do extensive research into how we should proceed here in Alaska since Roe was overruled last year.

Should we advocate for a court case to challenge “Alaska’s Roe,” the 1997 Valley Hospital case?

Should we start with the 2001 State v Planned Parenthood case that directs the State to pay for babies to be killed instead?

What about city or borough-level abortion-free zone ordinances?

Of course, we have legislative actions to consider such as the Privacy Definition Act, which would effectively nullify a significant portion of the 1997 Valley Hospital case.

Then there is the Life At Conception Act, defining children in the womb as persons from the moment of conception and guarantees equal protection and equal justice for babies waiting to be born.

Finally, we cannot forget Alaska’s Courts.  Next to the complacency of our elected representatives, there is no greater threat to life and liberty in Alaska than our judiciary.  If our courts were not so corrupt, the issue of abortion may have been settled decades ago.  Likewise, any meaningful protections for children in the womb must include reforms of our judiciary.

As Alaskans committed to ending abortion for over 45 years, we’re just like you – we’re everyday Alaskans with jobs, and families, living the Alaskan dream, and we want abortion to end and all innocent human lives protected – especially the most innocent and vulnerable.

Alaska Right To Life understands how hard it is to save a single life.  We continue to build coalitions with other ministries, churches, and other advocacy and political groups so that we can protect innocent human lives in any and every way possible.

We have helped tens of thousands of Alaskans get involved, serve in ministry, save babies, influence elections and legislation, and save lives since 1973.

Since Roe v Wade has been overruled, the Life at Conception Act becomes more urgently important than ever before.  Moving forward, we need your help protecting babies from being murdered in Alaska.

And because Roe has been overturned and nothing in Alaskan abortion law has changed, everything in the battle for babies’ lives must.

The first step in taking action to protect babies’ lives is signing the Life At Conception Act Petition.

The final draft of the Life At Conception Act is being prepared for introduction in the House even as you read this.  Your petition signature will be included with the bill’s introduction.