Alaska provides model for protecting abortion rights
Legal fight there could provide template for other states
One of the main strategies that abortion rights leaders and lawyers have employed is using the right to privacy under a state constitution as the basis for a corresponding right to get an abortion.
That grew out of Alaska precedent. The state supreme court there established that right in 1997 in a case known as Valley Hospital Association Inc. v. Mat-Su Coalition for Choice. Some background on the case is useful to know when planning future moves.
Abortion had been legal in the state by the time the case rolled around. In 1970, the state legislature legalized abortion in the state. Valley Hospital had permitted the procedure up to 192 until a new board, full of antiabortion people, voted a new policy prohibiting abortions unless there was a risk of life or if the pregnancy was the result of rape or incest.
The Mat-Su Coalition for Choice, a reproductive rights group in Alaska, along with a doctor and ten unnamed women filed suit against the policy. The court ruled in favor of abortion rights supporters. The hospital continued to provide abortions. It also established under the state constitution that people had a right to an abortion with the reasoning that the right to privacy encompassed that. Abortion had been legal anyway with the Roe v. Wade decision. Susan Orlansky, a lawyer in the state for 40 years, said it was an interesting case because it went further than it had to.
“Courts rarely decide issues that are not squarely in front of them. But the Valley Hospital case is a surprisingly far-reaching case,” Orlansky said.
All litigation in the state pertaining to abortion is based on that decision. They’ve had other challenges, including parental consent and restricting Medicaid-funded abortions. Now the only real challenge to abortion rights would be if the state had a constitutional convention and then explicitly added an amendment that said abortion wasn’t protected.
Alaska also has a non-partisan method of selecting judges, which Orlansky credits for the quality of the state court system. It is known as the Missouri Plan, which is how that state also determines who will serve on the bench. It has a judicial council with three lawyers that are selected by the bar association with some geographic diversity. They are appointed by the governor and then confirmed by the legislature.
If someone wants to serve as a judge, they apply to the council, which will then vet their legal record and resume through a questionnaire. The council looks into how the state’s lawyers rate the potential judges.
Orlansky said that this approach to protecting abortion rights could work elsewhere.
“If there's another state that's got a strong privacy provision, that's a great starting point,” Orlansky said. “And I think there are a few. I think ours is particularly strong, but there are others.”