Dunleavy veto holds judges accountable

By JIM MINNERY, ALASKA FAMILY COUNCIL

The ACLU of Alaska has filed a lawsuit challenging Governor Dunleavy’s veto of just under $335,000 from the Alaska Court System’s budget. This roughly equals the annual cost for complying with a court order to pay for abortions through the Medicaid program.

Interestingly, the ACLU’s complaint starts by quoting a previous state court case known as Bradner v. Hammond (1976).  In that decision, the Alaska Supreme Court opined, “The underlying rationale for the doctrine of separation of powers is the avoidance of tyrannical aggrandizement of power by a single branch of government…”

The court has often performed an essential role in curtailing abuses of power by the legislative and executive branches. But this begs the question: what happens when the single branch of government pursuing a “tyrannical aggrandizement of power” is the judicial branch? How should the legislative and executive branches respond when the court itself acts in an unlawful manner?

It’s a crucial question, because the landscape is littered with examples of judges who violated, rather than protected, our most sacred rights. Consider the Dred Scottdecision that denied the rights of African-Americans, or the Korematsuruling that upheld the confinement of Japanese-Americans during World War II. Judges are fallible, and wearing a black robe offers no immunity to the corrupting influence of power.

The crux of the ACLU’s argument against Governor Dunleavy is that his veto is a “measure of retaliation” against the court which “threaten[s] our democracy and the core system of checks and balances.” Yet a close examination of the court’s rulings on abortion reveals that it’s the unelected members of the judicial branch that threaten democratic government.

The state constitution is clear: no money may be spent from the state treasury unless the legislature authorizes it by law (Article 9, Section 13). In 1998, the Legislature exercised its proper constitutional authority when it decided that Medicaid would no longer pay for abortions, except when required to preserve the life of the mother, or in cases of rape and incest. The federal government and two-thirds of states have adopted similar limitations, so the Alaska action was hardly unique.  Nevertheless, an organization that directly benefits from state abortion subsidies—Planned Parenthood—filed a lawsuit seeking to overturn the legislature’s action.

In 2001, the Supreme Court struck down the Legislature’s policy. The court admitted there was no constitutional obligation to fund “elective” abortions but argued that many pregnant women needed abortions because of elevated health risks. The court cited examples such as renal disease, sickle cell anemia, diabetes, and epilepsy.

Taking the court’s ruling at face value, Governor Sean Parnell’s administration adopted a regulation, and the Legislature adopted a statute, that went further than the court’s examples and specified 21 different medical conditions that would justify a state-funded abortion. This list was developed with input from medical experts. There was also a “catch all” provision at the end of the list, to allow abortion doctors to specify some other reason why an abortion might be “medically necessary.”

It didn’t satisfy Planned Parenthood. Once again, they sought to have the policy thrown out. Once again, the Supreme Court sided with Planned Parenthood and ordered the state to pay for all abortions through Medicaid. Chief Justice Craig Stowers dissented from the court’s ruling, writing: “I believe the court today fails to give respect to the legislature’s proper role but instead substitutes its judgement for that of the legislature.”

Years ago, the late Justice Antonin Scalia expressed a similar thought, but with blunter language: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

So yes, separation of powers is important—and on the issue of abortion, the judicial branch is the transgressor. Whatever differences exist between the Legislature and Governor Dunleavy, they have at least two things in common: they’re both opposed to paying for elective abortions, and their authority to make budget-related decisions was acquired by winning an election.

Does the Governor’s veto send a message to the court system? Perhaps. Maybe it’s something like this: “If you think you have the constitutional authority to appropriate money, then be prepared to pay the bill.”