Voices in Alaska Court System: Dunleavy veto over abortion is 'stunning attack' on separation of powers
Alaska's constitution gives the governor authority to veto line items in the budget and requires that he include a statement explaining his objections. When it comes to his cuts to the courts, the statement he made has voices within the court system saying he crossed a constitutional line.
Gov. Mike Dunleavy vetoed $334,700 from the appellate courts, citing the Alaska Supreme Court's ruling on government-funded abortions:
"The Legislative and Executive Branch are opposed to State funded elective abortions; the only branch of government that insists on State funded elective abortions is the Supreme Court. The annual cost of elective abortions is reflected by this reduction. The Federal Government also prohibits any federal funds paying for elective abortions."
"I think this is an issue of separation of church and state," said a woman who agreed to speak with KTVA, but did not wish to be identified.
"When I was 17, I found out I was pregnant. I didn’t have a job at the time. I only had a high school diploma. I wasn’t going to college. I still lived with my parents," she explained. "I was in a longterm relationship and I would not have been the youngest person in my family to have a child, however, all of the women in my family had children before the age of 25 — and they all loved their children, like, I am one of those children — but I did not want that for myself. I wanted to go on, go to school. I wanted to do as much as I could before I made the choice to have a child."
The woman said she was granted a judicial bypass abortion, the right to have an abortion as a minor, without the consent or knowledge of her parents.
Now, she's an employee in Alaska's Court System.
"The fact that I was given body autonomy is what inspired my interest in law," she said. "Because it gave me a choice and it gave me the ability to do what I do today."
She said when she learned about the veto, and Dunleavy's reasoning, she was "livid."
"I think he is trying to send the message that his beliefs supersede the law," she said.
In a rare public response, Alaska's Supreme Court issued a statement, saying in part, "We assure all Alaskans that the Alaska Court System will continue to render independent court decisions based on the rule of law, without regard to the politics of the day."
Additionally, a letter drafted by a group of attorneys — all women — called the move a "stunning attack on the separation of powers," and urged the legislature to override the veto:
We are Alaskan women lawyers writing to ask that you vote to override Governor Dunleavy's veto of Alaska Court System funds.
The Governor candidly admitted that he vetoed this allocation in retaliation for the Alaska Supreme Court's substantive decisions. Withholding court system funding in an attempt to control judicial decisions is a stunning attack on the separation of powers, which is crucial to our democracy.
Judicial independence and separation of powers are bedrock principles of our form of government. More than 200 years ago, in Marbury v. Madison, the United States Supreme Court established the principle of judicial review and defined the boundaries between the executive and judicial branches of the government. Marbury held that if a statute conflicts with the Constitution, the Constitution is supreme, and the courts may invalidate the unconstitutional law. This doctrine is a cornerstone of our entire constitutional system. Indeed, the Federalist Papers, the foundation of modern American conservatism, advocated for "the complete independence of the courts." Without an independent judiciary, whose duty it was to declare all acts contrary to the constitution void, all constitutional rights and privileges would be meaningless.
These principles are no less fundamental to Alaska's democracy. The Alaska Constitution vests specific powers in each branch of government and contains even stronger protections against governmental overreach than its federal counterpart. The judicial branch has not only the power, but also the duty, to strike down legislation that violates the Alaska Constitution. The Framers of Alaska's constitution recognized that the separation of powers doctrine protects the electorate from tyranny; for this reason, delegates to the Alaska Constitutional Convention insisted that Alaska judges remain independent and free from executive branch pressure.
Flouting these principles of Alaska's very democratic structure, Governor Dunleavy is attempting to control Alaska judges by tying Court System funding to his personal agreement with judicial opinions. The Governor vetoed a portion of the Appellate Court's operating budget because he disagrees with the Alaska Supreme Court's holding that if the Alaska Medicaid program is going to pay for medical services for low-income pregnant women, then it
must treat all pregnant women equally, including funding for abortion. To do otherwise would discriminate against women for exercising their fundamental rights protected by the Alaska Constitution. The Governor explained that he was vetoing the court's funding because " [t] he Legislative and Executive Branch are opposed to State funded elective abortions; the only branch of government that insists on State funded elective abortions is the Supreme Court." The Governor's veto was not motivated by cost savings. Most abortions cost the Medicaid program $650 to $750, while a typical uncomplicated hospital delivery costs Medicaid approximately $12,000.
Whatever your personal view about abortion funding, this is a shocking attack on the separation of powers and judicial independence that cannot stand. The Governor's intent is clear: to punish the judiciary for its interpretation of the Alaska Constitution. But interpreting the constitution is precisely the job of the courts, and the courts alone. When the government violates individual constitutional rights, the courts are bound by duty to act. The Governor's veto therefore is an attempt to impermissibly control, coerce, and restrain the judiciary from exercising its independent judgment. This action violates the foundational principles of our government, it violates the separation of powers doctrine inherent in the Alaska Constitution, and it erodes our democracy in fundamental, structural ways. Allowing this veto to stand would set a precedent that will diminish all our rights by subjecting them to gubernatorial
veto—now, and in future administrations. And not only are a woman's most basic fundamental rights threatened, but all rights that Alaskans across the political spectrum hold dear, like gun ownership and religious freedom.
Please vote to override this veto and restore the separation of powers and the independence of Alaska's judiciary.
Friday, the Legislature ended its failed efforts to override the vetoes.
When asked if she believes Alaska's system of checks and balances is working properly, the court employee said, "I want to believe that we have checks and balances — I really do. I haven’t seen any yet."
During KTVA's gubernatorial primary debate, then-candidate Dunleavy was asked whether he would seek to restrict access to abortion rights, should the U.S. Supreme Court overturn Roe v. Wade. He responded that he wasn't interested in expanding abortion rights:
Well Alaska, before Roe v. Wade, was one of four states, is my understanding, that had abortion rights for women. I’m pro life. There’s no mistake about it. And I won’t equivocate on that. I have no interest in expanding abortion rights for anybody, to be perfectly honest with you. The women that I talk to though, sometimes they get offended because they think that they’re pigeonholed into abortion or abortion rights is all that a woman is interested in. The individuals that I talk to, my daughters, my family, my friends, they’re interested in safe schools, or better schools, a safer Alaska, an economy that has jobs so they can keep their kids and grandkids here, a whole host of issues. On that particular issue, not sure what’s gonna happen with the federal issue, but at the state level, we will still have, I believe, abortion rights for individuals. But I’m pro life and I’m not interested in expanding those rights.
Daily requests to the Governor's Office to discuss this, and other vetoes, have been denied or ignored.
Press Secretary Matt Shuckerow did send the following information from the Department of Law, regarding the abortion ruling Dunleavy disagrees with:
Based on the Alaska Supreme Court precedent, the State of Alaska has to pay for all abortions because the Court has not left any conceivable path whereby the State could define when an abortion is medically necessary. Therefore, every abortion, if signed off by a doctor, regardless of the underlying reason, must be subsidized by the State for those who receive Medicaid services.
The Hyde Amendment under federal law greatly restricts the abortions that can be paid for with federal Medicaid funds. Thus, the State has to shoulder the cost of these abortions under the State Medicaid program.
Here is a brief explanation of the case law to understand the confusing precedent set forth by the Alaska Supreme Court:
In Planned Parenthood I the court represented that the State need only pay for “medically necessary” or “therapeutic” abortions; in other words, the state need not pay for “elective” abortions. 28 P.3d 905-15. The court used the terms “medically necessary” and “therapeutic” a combined 37 times to describe the type of abortions the State must pay for with state Medicaid dollars. Id. The court stressed that the case was not about “elective” abortions—“[t]his case concerns . . . public assistance to eligible women whose health is in danger. It does not concern State payment for elective abortions.” Id. at 905. Indeed, the Medicaid program only pays for “medically necessary” care. Yet, in Planned Parenthood II the court effectively ruled that every abortion is “medically necessary” and must be paid for with state Medicaid funds for eligible women—the court left no recognizable room for the legislature to craft a definition of what abortions might be considered “elective” as opposed to “medically necessary” or “therapeutic.”
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