Bob Bird: The faux Republican resistance to abortion

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Photo credit: Wikimedia

By BOB BIRD

The Republican Party has used the pro-life vote for decades now, and with the exception of President Donald Trump’s judicial appointments, has given very little reason to expect pro-life voters to continue to support the GOP. This realization is dawning on many lifelong conservatives and Republicans.

Let us look at the local level, here in Alaska.

We still find the same shopworn solutions to abortion in Alaska are being offered and are nothing more than dead ends. This is true even from some of the allegedly pro-life support groups, who dutifully warn how bad things will be if pro-life elected officials are not supported. The mindless logic goes like this:

“The courts have ruled that abortion is a privacy right. We must change the courts! Or, we must have a constitutional amendment. Or we must nibble at the edges, wherein the courts permit certain restrictions. That’s all we can do for now.”

Alaska legalized abortion in 1970, three full years before Roe v. Wade … which also struck down the restrictions Alaska had in place, such as parental permission, gestation limits and so forth.

This law was passed for several reasons, one of which was a libertine view of sexuality that has ever-permeated frontier areas, but also because as a new state, misguided legislators wanted Alaska to be seen as “progressive.”

The law was vetoed by Gov. Keith Miller, which was quickly and easily overridden. But let us review the constitutional options that have never been exercised and are still in place.

For starters, the first breath of the state constitution reads as follows: “This constitution is dedicated to the principles that all persons have a natural right to life …”

So, what on earth do we need a constitutional amendment for? Who says that unborn persons are not persons? It was certainly accepted in 1955, when the constitutional convention met, and also in 1958 when the people approved statehood and the state constitution.

And it still is today when a woman is assaulted or murdered while carrying an unborn child. But the evil courts and their case law have decided, on their own warped authority, that the unborn child is protected only if it is “wanted,” or some such illogical nonsense.

It seems impossible, but let us suppose that we had a conservative state supreme court. It could have immediately declared the 1970 abortion legalization law as unconstitutional, citing Article I, Section 1, quoted above.

OK, so we didn’t have a conservative state court, either then or now. But we did have a pro-life governor, who vetoed the law. But then, it was constitutionally overridden.

Let’s play a hypothetical game: suppose the legislature and/or courts declared that Alaska Natives, Jews or other minorities were not fully human, or “persons” before the law. Then, vetoed by a governor, then the veto overridden.

Let’s check out Article III, Sec. 16: “[The governor] may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right by any officer, department or agency of the state or any of its political subdivisions. This authority shall not be construed to authorize any action or proceeding against the legislature.”

You will notice that it does not say “the judiciary.”

The fiction that we have “three co-equal branches of government” is once again shattered with that omission. The Legislature has ever been considered superior over the executive and judicial branches, on both the state and federal levels. But they can make mistakes, too, just like the other branches. And enforcement is not within their purview, it is with the executive. 

So, Gov. Miller might have invoked this section, refusing to allow such a hypothetically hideous law in Alaska. Yes, we would have had a constitutional crisis. Yes, they might have impeached him for it. You do not need any legal grounds for impeachment anyway, it can be trumped up on any pretense. But Miller would have had the constitution on his side, for everyone admits that this section gives Alaska’s governors a power not found in most other states.

Now Alaska Natives, Jews and other minorities enjoy sympathy and privilege in this state, so the given example would not happen, at least in the current culture. But we do have a culture that does not see the unwanted/unborn as enjoying such protections.

It is, of course, utterly arbitrary, as we have seen in regards to the death of an unborn child that is “wanted.” It is also selfish, brutal, stone-hearted, unconstitutional, and — this really infuriates the Left — utterly unscientific.

Miller lacked the full knowledge of the constitutional powers he possessed, or determined that it would be a fight not worth engaging. With the abdication of the battlefield, the Left has been emboldened to even more preposterous unconstitutional actions in the decades that have followed.

We can start with the right to privacy, enacted in 1972 for the sake of our personal electronic data being protected at the dawn of the computer age. The amendment was wisely written in anticipation of what we are now seeing, and if you haven’t noticed, it is utterly ineffective for the purpose in which it was approved.

But things get even worse: The understanding that the judiciary was often an enemy of constitutions was fully anticipated, so the amendment further reads, “The legislature shall implement this section.”

Yet, the judiciary has gotten away with impeachable offenses by deciding that they will define, and hence “implement,” what privacy means. And, naturally, abortion quickly became its pet to protect at all costs. From there, it was an easy bridge to cross when “privacy” meant, by their case law reasoning, to extend to public funding of abortion.

They apparently were not concerned at all with the privacy of individual citizens’ consciences, or their purse.

All the while, allegedly pro-life governors such as Hickel, Palin, Parnell and Dunleavy, and allegedly pro-life legislative majorities in the past, have dutifully tried to end this constitutional overthrow by following supposedly “constitutional” boundaries the judiciary invented — only to find that, after time-consuming hearings and testimony … Ta Da! … the goalposts were moved further back, negating all efforts.

We see that the arrogance of the judiciary now extends into new areas that have nothing to do with abortion, such as usurping the powers of grand juries. But the timorous, allegedly conservative legislators have done little or nothing to stop this.

Except, of course, Rep. David Eastman, who is universally detested for not being a “team player.” But Eastman never votes or acts without first asking, “Is this constitutional?” His fellow colleagues, who take the same oath, rely upon the judiciary to let them know what “constitutional” means, as if they are too ignorant or uneducated to think for themselves.

Many likely secretly agree with him, but they don’t dare cross over to his side, for fear of being “Eastmanized” by their colleagues, the media and the bureaucracy. Thus, their oath to support both the state and federal constitutions is turned over to the very people — the judiciary and the bureaucrats — that they use as a way to gain the votes and trust of their conservative constituents, to effect a change that both they and their Leftist enemies, know will never occur.

It’s a squirrel cage.

Bob Bird is chair of the Alaskan Independence Party and the host of a talk show on KSRM radio, Kenai.

16 COMMENTS

  1. The judiciary has subject matter jurisdiction diction over American civil common law jurisprudence. they can say this is the font you must use. this is the protocol of adversarial court protocols. We the people did not give them interpreting juris diction over the US supreme, laid-down law of the land the US Constitution. it says what it says in plain language of English that a reasonable man understand. The Congress shall make no law.

    What? No law is what it means. Our rights (droit) are the law. Do you know your rights? Can you enunciate them to exercise and claim them? If not; change that. Reading means reading, yourself reading, learning what fourth graders were taught (international law) in American fourth grade curricula materials in General Robert E Lee’s day. Democrats don’t want you to know this so they tore his statue down. Please never vote for Democrats again.

  2. Interesting viewpoint, headline a crock of nonsense. Implementing an imperial governorship such as this author advocates will result in the inevitable consequence – a dictatorship to be taken advantage of by the communists. Dream on Bird brain. I do like your pun with Trumping up impeachments – better than Borking. The AIP will never compete on the same playing field as the two dominant parties Bob, because you have no message – all you do is attack the Republicans attempting to carve out a few tru-cons, insuring the left wins. I’m a frustrated pro-lifer too, and I observe that pro-life advocacy groups don’t seem to want to solve the issue – merely keep milking their cash cow. There is little or no education being done to support the pro-life cause and grow our base. Who is promoting “personhood” from the moment of conception to natural death? I’ve seen strong pro-lifers get elected, then through the necessity of legislative compromise, compromise their principles to pragmatism. Try merging the AIP with the GOP so we can keep focused on task – rolling back the left and regaining freedom for all. We win when we aren’t standing in a circular firing squad.

    • Mr. Thorne, I agree that our divided house on the Right and proper side of issues works against our interests. However, I don’t see where a Governor using his Constitutionally given authority is being Dictatorial.

    • Mr. Thorne:
      Insulting a person’s good name is childish and unworthy of a prolifer. How would you feel about someone calling you a Thorn-Head? Please make your criticisms with wit, not insults.

  3. Well. Until Alaskans are a God-fearing people as the whole when they recognize the value of human life. This is not an issue worth the Republican Party of Alaska to continue dividing over and dying on losing elections. There may be more registered Republican voters than Democrats here, there may be heavy voting Republican districts, however a lot of those Republicans are moderate, not Christian, and okay with killing a baby.

  4. 1- It’s not news the GOP talks out of both sides of its mouth, and does nothing when the chance to act comes.

    2-Eastman is the classic example of the failures of the AK GOP. Grandstanding toads who actually accomplish little when it matters.

  5. Bob, your argument that we don’t need an amendment to clarify that our constitution doesn’t somehow guarantee abortion “rights” is akin to the Federalists’ argument that the U.S. Constitution didn’t need a Bill of Rights. Thankfully they lost that argument (eventually) which resulted in the first 10 amendments; I cringe at the thought of where this country would be without them. While I agree with you that the right to life extends to ALL lives – including those still in the womb – the courts and a large share of the public sadly don’t. An amendment explicitly stating this, the passage of which would be a longshot in any case, would hurt nothing.

    • AK Pilot:
      If you cringe at the thought of “Where would we be without the first 10 amendments?” — ask yourself: is the 2nd Amendment obeyed? The 10th? The 4th? The 1st? Did the Jan. 6 defendants get a “speedy and public trial” according to the 6th? The amendments are good ONLY if the superior branch — the Legislature — has the guts to impeach judges or presidents who usurp the plain meaning of the Constitution, on both the federal and state levels.

      ALL federal gun control is unconstitutional, but has also originated with the Legislative branch, as well as the Judicial. So, if their constituents re-elect them, we are stymied. BUT … a pro-gun president could refuse to enforce statutory federal gun control laws, as well as judicial case “law”, defying a previous presidential enforcement. The system is NOT perfect.

      Please don’t tell me this would cause a “constitutional crisis”. We have been in one since Washington signed the Bank of the United States into being. And our great defenders of the Constitution, Madison and Jefferson, both succumbed to “The Ring of Power” when they became president. Jefferson’s Embargo Act was a self-imposed blockade! Madison signed the 2nd Charter of the Bank that he detested as a congressman!

      And yes, they were resisted. We are in this mess because we have grown accustomed to it. A true balance of power would see contention, not a “Get-Along-Gang” that constantly erodes the value of human life and freedom.

  6. “So, what on earth do we need a constitutional amendment for?”

    To answer your somewhat rhetorical question, the amendment serves a political purpose that a number of politicians believe is necessary in order to better secure their future political careers. As these elected officials are not committed to stand in the gap on behalf of the unborn today it is politically necessary (if they are going to be re-elected that is) for them to find a scapegoat to point the finger at for their decision not to take the battle to the enemy.

    Those who put forward constitutional amendments are tacitly (or expressly) claiming that the blame for the problem ought to fall on the constitution. The constitution is to blame, they say. It is in error. We must fix it. We can’t move forward in this battle because it is the constitution that stands in our way. It ably defends the murderer and the tyrant and while we would desperately like to jump in and rescue the child from the one inflicting pain and death upon them, we are loath to attack or undermine the constitution.

    The constitution is the expedient villain in this case because it cannot be easily changed by the legislature (though the court seems to find it easy enough to make changes). The court requires only 3 votes to issue its opinion. The legislature requires 41 votes to change the constitution (more than two-thirds of legislators), and then the change doesn’t take place until ratified by a majority of voters. The court also intrudes on this process as well by asserting it has a right to veto even a constitutional amendment passed by the legislature and ratified by the people; in essence a “royal prerogative” that even the Queen of England did not possess while she lived. The case was Bess v. Ulmer (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1124&context=alr).

    In other words, describing a constitutional amendment to fix abortion as a “dead-end” is overly generous and does injustice to dead-ends everywhere. Even a dead-end can be breached with enough momentum and an especially dense object—Not so the gauntlet the court invites the unborn and their advocates to walk through.

    That gauntlet is lined first with Republican legislators who identify as pro-life for purely political reasons and only during campaign time. These legislators comprise the enemy’s front line, and are relied upon to sabotage any pro-life effort in the legislature. Should you gain their assent, and by that I mean the affirmative vote of every single Republican legislator (both pro-life and otherwise) simultaneously, you must then gain the assent of Democrats. You may find one Democrat (an M.D.) who will vote with the Republicans on abortion. One Democrat vote is not enough. After securing the vote of every Republican legislator you will need eight more votes. There are no Independents who vote with the Republicans on abortion.

    After you gain the assent and affirmative vote of all Republicans, all Independents, and several Democrats, you must then gain the assent of a majority of voters and go to battle publicly against a billion-dollar industry that risks losing money if your amendment passes at the ballot box.

    Then, after you win at the ballot box, Planned Parenthood need only call upon three of its activists on the AK Supreme Court to write an opinion that vetoes your amendment and asserts that abortion is such an important topic that you need to wait up to ten more years and then convince Alaskan voters to have a constitutional convention to make such an important change to the constitution.

    After you wait those years and successfully defend your amendment at the ballot box a second time, with the abortion industry weighing in against you all the while, you are then invited to wait another year or two and do battle publicly against the abortion industry a third time in the election of delegates to that constitutional convention.

    Once you gain the assent of voters a third time, you must gain the assent of a majority of delegates. Once you gain their assent you must then do battle publicly against the abortion industry a fourth time by winning the support of the people at the ballot box a fourth time to ratify your pro-life amendments.

    A constitutional amendment to fix abortion isn’t a dead-end, it’s a non-starter, and every legislator who tells you to go get one knows it. But it does serve a purpose, and many a Republican legislator has been elected by blaming someone or something else on their failure to stand in the gap for the unborn while in office. But I’m not supposed to tell you that. I’m supposed to follow the Republican Party’s example and treat pro-life voters as a cash cow, the one political group that keeps giving while getting nothing in return except lip-service. I’m supposed to accept this as the status quo and help distribute pro-life political support to any Republican politician who is willing to self-identify as pro-life at least once during campaign time. That’s the standard; words, not deeds.

    What other political lobby grants its support based on words alone, ignoring the actions which war against the words?

    The abortion industry runs on money. Words are never enough.

    • While I agree with Rep Eastman that an amendment on abortion is a non-starter, it is for a couple other reasons.

      First, it empowers democrats, particularly turning out their core constituency of AWFLs (Affluent, White Liberal Women) in elections. One such amendment in MI was the key to flipping what had been a purple state hard blue. Dems have floated these deceptively written amendments in multiple states since Dobbs, and successfully won elections ending up further pushing their murderous policies.

      Second, and more importantly, We. Already. Have. The. Win. How so? Alito writing in the majority opinion throws the entire mess back to the state legislatures and governors. State courts are never mentioned. As the privacy ruling applying to abortion here in AK, is entirely a creation of the Alaska Supreme Court, I would say that Dobbs reversed it.

      Here’s what the governor ought to to. He ought to act like the Dobbs overruled the AK Supremes and act accordingly. Force Planned Parenthood or whatever other chop shop for baby body parts is operating in the state to take him to state court, where he will lose. Then take that opinion to federal court using Dobbs as the defense. He will likely lose in the Ninth Circus also, which sends him directly back to the SCOTUS who will then be on the hot seat, having to either reverse itself on Dobbs or ruling in favor of Dobbs.

      We conservatives have victories in abortion (Dobbs), and school choice / vouchers (Espinoza), not to mention forced union dues (Janus) in recent years. Yet the governor acts like none of them exist. Worse, his timidity on Janus leaves the current union dues aparat in place rather than putting the unions in a defensive position. If we have victories, time to start acting like it. Never ask permission for something you already have. Cheers –

    • David,
      Not to take away from the issue at hand, but this is a great explanation as to why many issues kicked down the “constitutional amendment” road are a “non-starter”…. along their process journey they fall under the weight of their own efforts.

      • Dobbs clearly overruled the previous attempt of the judiciary to determine abortion policy, returning abortion policy to elected officials rather than appointed ones when it comes to rolling back Roe and unwinding the catastrophic consequences of abortion on demand foisted on the entire nation by seven appointed justices in 1973.

        Even so, it wasn’t appointed officials that legalized abortion in Alaska, but elected ones. For the Alaska Supreme Court to maintain the preposterous position that elected officials could legalize abortion in Alaska, but are now somehow powerless to rescind that policy without first receiving permission from three appointed officials on the supreme court shows again how willing those appointed officials are to arrogate power to themselves at the expense of the people and their elected representatives.

        It is a timid legislature indeed that declines to push back against the state judiciary’s relentless encroachment on the right of the people to determine the laws they will be subject to. The people do not determine who can be appointed to the judiciary. That privilege currently falls to the judges themselves and their fellow members of the Alaska Bar Association. The governor plays a ceremonial role in that process, and the legislative branch plays no role at all.

        The constitution has been turned on its head. Here in Alaska, as in no other state in the country, the people are prohibited from having a say in which laws they will be subject to. They are blocked from appointing justices who will either allow the legislative power to be exercised by the legislative branch of government or who will legislate from the bench according to the will of the people. If the people ever fail to retain a member of the judiciary or the legislature exercises its power of impeachment, the outgoing member of the judiciary will be replaced by a new member again chosen by the judiciary and other members of the Alaska Bar Association. Under the current arrangement the people will always be blocked from employing judges of their own choosing or even selecting governors or legislators who may exercise that choice on their behalf.

        We have a word for a branch of government that fails to restrain ongoing encroachments by another branch. Feckless. Today, Alaska’s legislators act the role of functionaries in implementing policies determined by the judiciary. The judiciary allows the legislature some discretion for appearances sake, but reserves to itself both the legislative power and the power to veto any policy passed by the legislative branch. Its function is neither that of a democracy or of a republic but of something worse than either.

        • Because anything in conflict with US Constitution, anything at all, is void for effect from inception. I believe Marbury v Madison allows a local magistrate to enforce the US Constitution. It’s not only just a Supreme Court that has an oath to enforce the US Constitution. They are all obliged to enforce and invalidate usurpations wherever usurpation of rights with remedy ($) ordered and collected and paid that day. That is the envisioned enforcement. If you can’t are too dainty and won’t enforce the US Constitution as you swore you would do quit and go home and let someone who will enforce the rights of the people do that work at the magistrate level. Yes. That is different than what is demurred now en mass. I do not consent to demurred, deferred US Constitution. Thank you. signed/ The neighbor who voted for you to do “it” enforcement, always, of the US Constitution. Always. Work only in your authority. Create a reasonably small budget. That is all.

  7. “Now Alaska Natives, Jews and other minorities enjoy sympathy and privilege in this state, so the given example would not happen, at least in the current culture. But we do have a culture that does not see the unwanted/unborn as enjoying such protections. ”
    .
    Brilliant!
    .
    And, with apologies in advance, sure to be plagiarized.

  8. Bob, I absolutely thank you for your insight and sharing your knowledge of the Constitution.
    And Representative Eastman, for you courage and commitment to defending the Constitution as it was written.
    We pray for you for knowledge, wisdom and protection. You have always demonstrated integrity.

  9. Don’t like abortion? Don’t get one. Problem solved. We should spend most of our energy as a society making abortion something that, while legal, is rare.

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