Alaska

Alexandra Gutierrez, of Alaska Public Radio, reports that the "Alaska Supreme Court rejects fetal personhood initiative". The proposed initiative reads:

Natural Right to Life.

The State of Alaska shall protect the natural right to life and body of all mankind from the beginning of biological development. We the People affirm that the natural right to life and body of the unborn child supersedes the statutory right of the mother to consent to the injury or death of her unborn child. In life threatening situations the law of necessity shall dictate between the life of the mother and her child.

The Alaska Supreme Court decided that the initiative sponsor, Clinton Desjarlais, could not even get signatures on the initiative because it conflicts with Roe v. Wade. The Oklahoma Supreme ruled similarly last year. As a matter of law, this is a facial rejection, meaning that there are no circumstances in which the proposed law could be interpreted in compliance with the “Constitution”, which in pro-abortion speak means Roe.

But this is clearly not the case. For example, the law could apply outside of the abortion context when a drunk driver hits a pregnant woman and kills her unborn child. It could also apply to research that kills a nascent human being outside the womb.

In addition, the Alaska law that defines the scope of proposed initiatives does not limit initiatives by their adherence to Supreme Court rulings or even real constitutionality (the two being quite distinct as in Roe). Here’s the law:

The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation.

Where in the law does it say that initiatives must conform to unconstitutional Supreme Court rulings? It’s gotta be in there somewhere. Let me take another look.

But when a court wants to trash the rule of law, it can always look to its own precedents, meaning the previous time it trashed the rule of law. And that’s exactly what the Alaska court did.

To summarize, in lieu of ignoring Roe which it should have done, the Alaska Supreme Court was wrong to reject the initiative for at least two reasons:

1. The proposed initiative has valid application outside the abortion context.
2. Alaska law does not exclude initiatives because they contradict Supreme Court rulings.

Unlike the many aborted babies in Alaska, judicial activism is alive and kicking.