By ALEX GIMARC
There was an interesting trifecta of articles concerning Rep. David Eastman earlier this week in Must Read Alaska.
The first by Jim Minnery went after Rep. David Eastman for being less than supportive of a right to life amendment to the state constitution. It was immediately followed by Bob Bird, defending Eastman and going after Minnery. The next day Pat Martin also went after Minnery for what he called a “slanderous attack” on Eastman, which is where we sit today.
The question for pro-lifers here in Alaska is what are our options? Do we attempt to out-extreme the left (difficult to do) on abortion, or do we find an alternate path, perhaps one given us on a silver platter by Supreme Court Justice Samuel Alito in his 2022 Dobbs opinion.
A review of our current situation is in order.
The Alaska Supreme Court found a constitutional right to abortion sitting in the Alaska Constitution. It was disguised as a right to privacy but is there nonetheless (according to the Justices). Their opinion was an utter and complete victory for the pro-aborts, to the extent that they have so far refused to float constitutional amendments on abortion for state elections like they have done in multiple states since 2022.
These initiatives work really well in turning out Democrats, particularly their base of affluent white female uber-liberals (AWFULs). But the pro-abortion victory was so complete, so overwhelming, that they haven’t bothered doing this up here.
The solution according to Minnery? Float a similar pro-life amendment via ballot initiative. Eastman disagrees, which is what triggered the round of arm waving, chair throwing, and finger pointing.
I tend to agree with Eastman’s logic, though with a different approach. I attempted to contact Minnery while writing this piece. The call was not returned.
There is a third way given us by Justice Alito in Dobbs. When he handed the issue back to the states, this is the precise language he used in the second paragraph on the first page of the opinion:
The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. (Pp. 8–79.)
Note that it does not mention state courts, or any of the black robed wannabee Brennans or Blackmuns populating those bodies. It specifically mentions the people and their elected representatives.
This means legislatures and governors.
Essentially, the SCOTUS just rewrote every single judicial opinion defending abortion at the state level, throwing the entire mess back into the laps of the various state legislatures, which is where it belonged in the first place.
What would I do? I would pass out of the Legislature whatever pro-life legislation that makes sense. And no, it’s not going to be a complete ban on abortion, nor will it be a complete free for all to abort right up until the moment of birth or a little while after.
It would be something reasonable, something in between, something that takes into account the very real fears and concerns (Democrats make a living out of stoking fears of AWFULs), while addressing the rights of all three people involved: mom, dad and the kid.
Once it is passed, it will be appealed to the Alaska Supreme Court, which will throw it out based on the court’s “privacy = abortion” opinion.
At that point, the State takes it to federal court and appeals using Alito’s precise language, pointing out that the Alaska Supremes are neither elected nor representatives. And, if necessary, appeal it right back to the SCOTUS to make sure Alito meant what he wrote.
This will be a whole lot more productive than another round of who’s more pro-life than I am, or you are. And it might even get us closer to an actual solution that we all can live with.
Alex Gimarc lives in Anchorage since retiring from the military in 1997. His interests include science and technology, environment, energy, economics, military affairs, fishing and disabilities policies. His weekly column “Interesting Items” is a summary of news stories with substantive Alaska-themed topics. He was a small business owner and Information Technology professional.
Nice piece Alex and right on!
Let’s celebrate what we agree on instead of finding issues to divide us.
Ed
Stands to reason.
Excellent approach. In an arena of humility and common sense this could happen. Praying for that.
Some abortions are just medically necessary. To make a law preventing women from obtaining a medically necessary abortion could, in some cases, cost a woman her life. A non-viable pregnancy, rape and incest are excellent reasons for leaving these decisions to the woman and her doctor. To abort or not to abort is not black and white – there are too many gray areas to be absolute in the law. I am no fan of Planned Parenthood and wish they did not exist. Abortion is not a substitution for birth control.
I fully agree with decisions made by a doctor.
Planned Parenthood makes way too much money on the sale of aborted fetuses for them to ever go away.
Big pharma are the highest paying customers with payouts of 10 thousand for a fully intact fetus with a heartbeat for research and vaccine production.
Planned Parenthood will always thrive with that kind of cash for a fetus that the donor will never see a penny of.
Wait till we see how much they will pay for a living euthanized infant up to 30 days old they are trying to legalize in California…..big $$$$$$
Thank you for your common sense writing that helped me understand this issue. I wish that the lies being told by the left would stop and we could move on.
A sensible solution. Doesn’t Conservatives have enough fight with liberals to fight between themselves. Need to compromise and be united. In the infamous word from Rodney King said, “Can’t we get along?”.
Simple, effective logic !!
EXACTLY! This was the point all along and Trump keeps saying it. The decision goes to the people and the states, not the Feds. Why is it so hard for anyone to understand?
Well done. Seek moderate ground and let the issue simmer. There is much, much more to work on. And thanks for the delicious acronym:
“………affluent white female uber-liberals (AWFULs)……..”
The only problem, Alex, is that you are still asking the judiciary to tell us what is and is not constitutional. True, Alito’s decision might make it more possible to get a confirmation of the Dobbs decision. But going to the judiciary plays into the hands of AWFULs. Judicial majorities change. Constitutions change ONLY when they are amended.
But please re-read my article. A prolife governor need not enforce a judicial decision, especially one that actually overthrows the state constitution. This was obviously done concerning “privacy” in Art. 1, Sec. 22. A prolife legislature can impeach the judges for stealing the power of the purse AND the line-item veto, or use Art. 4, Sec. 1 to write “This (personhood) statute shall not be reviewable by the judiciary.” What you are suggesting is falling into the usual trap of believing that judicial decrees are binding and must be obeyed. I look forward to your reply because this is exactly the kind of conversation that is needed, but never gets any “air time” in Minnery’s closed-door vacuum.
I didn’t read that Alex was involving the Judiciary, contrary, he specifically stated “No Black Robes”
It has to be addressed by the legislature” (in so many words.)
To which I agree, further more, Alex’s presentation is too much common sense as to be accepted as
a starting point. (I do appreciate the connotation of AWFUL, that is a beautiful play!!)
Cheers
Howdy Bob, and it is a big problem indeed, as our options when a judicial opinion is clearly unconstitutional is what? Yeah, impeachment. Yeah ignoring the opinion. Yeah, a vote against retention, neither of which happened after the AK Supremes issued their privacy = abortion opinion. None of these happened following Roe either.
I am left to operate in the world as it exists rather than the world we would like to exist. As such, Alito’s verbiage is a very large opening. I suggest we exploit that opening, not unlike water through a crack in a dam.
If we haven’t impeached Justices for overreaching, there is no reason to believe we will do so in the near future. If we haven’t ignored the judiciary on this issue in the past, there is no reason to believe we will do so in the near future. If the political landscape is set up to take advantage of judicial opinions, which it is today, then by God, do it and see what happens.
Not saying that this is the right way to go. I am saying that a pro life constitutional amendment is a bridge too far, one that will work out much the same way as the current Prop 2 repeal RCV initiative. Good news is that it is a great idea. Better news is that it got on the ballot. Bad news is that it brought $14 million of outside $$$ into the state for the anti repeal campaign. all of which filtered down the ballot to fund democrat campaigns. Can we afford to do this again? The great mistake the Prop 2 guys made was not having equal money in the bank, which left those of us on the political right naked this election cycle. And they knew the problem before they began. The pro-aborts will bring in similar resources. I know it. You know it. We need to be ready for it. Cheers –
Bob – I love ya but all of your Constitutional chatter on impeachments and the like doesn’t mean anything if we don’t have a Governor or Legislature willing to do what you’re proposing. You’ve been saying this for years. We’ve actually passed legislation and a statewide amendment on this issue. I definitely support what Alex is proposing and can’t wait to try and get something through the Legislature, have the AK Supremes overturn it and then take it to SCOTUS to see if it works. Of course anything other that what Eastman determines to be the only solution won’t get his vote but hopefully, Jubilee will get in or we won’t need Eastman’s vote. But you guys can keep throwing Hail Marys and we’ll cheer when you complete one. Just try and be a bit less critical of the 5 yards and a cloud of dust strategy. Both are needed.
Let them have their abortions, but they also have to be sterilized at the same time. Then they won’t have to worry about future abortions.
So you must think life does not begin at conception? So sad.
Well said Alex. Sorry for not returning your call. You might argue we could advance one of those Constitutional Amendments Eastman doesn’t like as part of your proposed strategy. But that requires a higher threshold than a simple majority for a statute. A lot of this of course depends on who we elect. Vote hard. Keep pressing.
Howdy Jim – I am of the opinion that a constitutional amendment won’t work, mainly due to the massive amount of outside $$$ it will invite into the state. Prop 2 invited over $14 million so far, most of which is being spent on down ballot races to elect democrats. I am thinking that given Dobbs, the pro life efforts need to be spend paying lawyers and fighting the legal fight in federal courts.
As an aside, we have a similar opening with vouchers for religious schools handed us via the 2020 SCOTUS Espinoza v Montana. That one overturned the MT state constitutional prohibition against state $$$ being spent in private religious schools. AK has a similar prohibition, which is now moot. Want to destroy the NEA and the government schools, pursue that one in the federal courts. Cheers –
Desiring to give amy single justice, or the entire Supreme Court, dominion over both the AKLeg and the Alaska Supremes is a risky “careful” what you wish for scenario.
And a (possibly unconstitutional) ballot measure either restricting or allowing abortion will be a political risk.
If you want an abortion ban, you also need to have the US Supreme Court overturn Leser v. Garnett. Then you can ban abortion and contraception without political interference from the voters.
Let me preface this with the statement that I am not a lawyer, but I have taken several classes on the law and the US Supreme Court. I find it highly unlikely, that the US Supreme Court would even hear a case, never mind overrule a state Supreme Court, that claims the state Supreme Court interpreted the State Constitution incorrectly. There would have to be a claim that the interpretation violated some US Constitution provision. That would be difficult in this case.
As to the claim that Alito’s language precludes the court’s involvement, state courts, like Federal courts, are the final arbiters of whether a law is constitutional or not. If I remember correctly, The Alaska Supreme Court once ruled that a Constitutional Amendment voted in by the voters was unconstitutional. Ignoring the fact that they can be involved is shortsighted.
As to the claim that we should just ignore the Supreme Court’s rulings is highly objectionable. Do you want the government under a Democrat Governor to ignore the Supreme Court decisions you like? Because, if you give a Republican Governor that power it will also be available to Democrat Governors. Asking them to violate their oaths of office is not what we should be doing.
Thus, it appears that, since the Alaska Supreme Court has found a right to abortion due to the explicit right to privacy in the State Constitution (as opposed to the implied right to privacy found in the Roe v Wade decision), then the only solution is to amend that section to preclude its use in justifying abortion. Amending the Constitution is not easy, but if a reasonable compromise could be developed somewhere between no abortions ever and abortions on demand until (and after) birth, it might be possible. That would take some compromise. Unfortunately, compromise has become a dirty word and the proverbial third rail to some people at both ends of the spectrum.
AK Bosco wrote: “Do you want the government under a Democrat Governor to ignore the Supreme Court decisions you like? Because, if you give a Republican Governor that power it will also be available to Democrat Governors. Asking them to violate their oaths of office is not what we should be doing.”
I did NOT give this power to a Republican governor, the state constitution did! A prolife governor would not be violating their oath, they would be fulfilling it. I wonder if words mean anything to people. Tell me where I am mistaken.
You are talking the politics of FEAR. We have the tools at hand. You fear that in some future time, A dem Gov would play tit-for-tat.
SO WHAT? That is what the constitution allows! You are saying we should not use the constitution because someday, at a hypothetical time, THEY might use it? They already are — in their use of the state supreme court. If you want to battle them, then for Heaven’s sake, BATTLE THEM. A prolife use of the CONSTITUTION can halt abortion RIGHT NOW. Let the people see how proper understanding of the constitution works BOTH WAYS. Otherwise, you are a child, fearful of awakening a giant ogre, who already has devoured thousands of children.
Not civilized enough to end abortion. Maybe some day but not today.
I’m just shocked at how far left the Overton window has been shifted. This is a direct capitulation to the left of center core political entity known as the Alaskan Republican Party. Acceptance of murder is not a percentage play, it is one of the few absolutes based on morals, ethics, logic and reason.
I look forward with dread and shame at the editing of the Alaska Republican Platform because as of this article’s writing it is meaningless drivel being ignored and marginalized on this topic and many others by people whom should know better.
‘https://alaskagop.net/about/platform/
The AKGOP platforms produced in 2018, 2020, and 2022 were strongly pro-life. I was part of those platform committees – Chair in 2022. Having been redistricted out of my voting position within the Party, I did not attend the Convention this year – and I am ashamed of the result. Abandoning the right to life will come back to haunt us.
“And it might even get us closer to an actual (final) solution that we all can live with.”
Hitler never placed an age limit on aborting humans.
Alex ends his piece by saying “And it might even get us closer to an actual solution that we all can live with.”
The fact is that the majority of Americans support “reasonable abortion laws” the extremists either support total bans or absolutely no bans whatsoever. There are people, who have made a career and based their lives upon this issue and coming up with actual solutions that the majority of Americans can live with is not in their interest.
Can we be so bold as to say that solving the abortion issue will remove their key fundraising tool and their very reason for being?
Pat, Jim, can you honestly tell us that you are trying to work yourselves out of a job? Perhaps you are – show us.
Alex makes sense. Scenario: A two room day care building with 25 children begins to crumble during an earthquake. You are the only person there able to take action. You have only seconds to choose between evacuating room #1 with 23 children in it or room #2 with 2 children in it. There is no time to evacuate both rooms and save all 25 children. What is the most appropriate course of action? I know what I’d do, do you?
Straw man.
Thank you Alex, for having the courage to keep the conversation going in a constructive direction. I cringe and weep at the thought of murdered babies – the goal still remains: no more abortions. But our cultures are not ready to value human life to that degree – yet. We have much work to do. Your proposal – holes though it has – may be a good place to start changing the culture of death to respect for life.
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