The Alaska Constitution’s privacy clause has long been interpreted as a strong protection of bodily autonomy, including the right to an abortion, but Republicans in the Alaska House have devised yet another way to skirt the state’s constitution.
House Bill 107 by Big Lake Republican Rep. Kevin McCabe seeks to skirt the Alaska Constitution’s protections and criminalize abortion by redefining what “life” and “person” mean in state law. The legislation is set to receive public testimony in the House Judiciary Committee on Monday.
“An abortion, for whatever reason, is between a doctor and his decision and a woman,” McCabe said. “It’s not the intent of this bill to send storm troopers into an abortionist’s office. That’s not the intent of this bill. This bill … is designed to define life and person.”
The measure would update the definition of “person” to include “an entity that has the moral right of self-determination” and would define “life” as “the property or quality that distinguishes a living organism from a dead organism or inanimate matter, and that is manifest in the function of a metabolism, growth, reproduction, a response to stimuli, or adaption to the environment, each of which originates within the organism.”
At a hearing on Friday, McCabe told the House Judiciary Committee that he was simply trying to put a definition of life into state law, dodging questions from legislators about its impact on abortion providers.
However, Deputy Attorney General John Skidmore said the changes, as they currently stand, would allow the state to bring criminal charges against abortion providers and people who get abortions because they extend personhood to fetuses. He noted that there are existing laws criminalizing the death of an unborn child that have several exemptions for abortions but that those wouldn’t apply because, under the changes, the fetus would be seen as a person and not an unborn child.
“HB107 redefines a person to include a fetus, and as a result, those defenses that are currently found in the statute would not apply to a typical murder statute or an assault statute,” he said. “Does that mean someone could be prosecuted? I would tell you that the law would allow charges to be filed under the statute.”
He said whether those charges could actually proceed is an unknown because there’s already case law that the Alaska Constitution’s privacy clause covers the right to an abortion.
Much of McCabe’s justification for the bill rests on century-old writings about pregnancy that claim the embryo is the active entity. At the hearing, he said the claims “underscores the passive role of the mother’s body” in a pregnancy.
Some of those writings were highlighted in his sponsor statement. That includes the 1868 “Criminal Abortion,” an anti-abortion book whose modern printings include a disclaimer that the authors’ motivations were “primarily racist, xenophobic and sexist,” driven by contemporary fears that whites would be overridden by Catholics, Jews and “inferior races.”
McCabe’s statement specifically claims that “Criminal Abortion” author Dr. Horatio R. Storer “is irrefutable: The life of the unborn human begins independent of the mother’s body.”
The disclaimer on the book notes that Storer and his co-author “were horrified by declining birthrates among Americans of Anglo-Saxon ancestry and the influx of immigrants, many of them non-white, Catholic and Jewish. In their minds, abortion in the non-immigrant community, which they attributed to modern fashion and feminism, was leading to ‘race suicide’ and a country overtaken by ‘inferior races.’”
The authors’ attitudes on race were not mentioned at the hearing.
The legislation is scheduled for a public hearing in the House Judiciary Committee at 1:30 p.m. Monday.
A statement released by Planned Parenthood Alliance Advocates highlights logistical problems with the proposal, calling the language vague to the point that it could deny a pregnant person access to chemotherapy. It also argues that if allowed to go into law, it could recreate a similar situation in Alabama, where the practical legality of in-vitro fertilization was recently thrown into question.
“It is simply unconscionable that Alaska lawmakers are wasting time on such extremist legislation,” said Rose O’Hara-Jolley, the Alaska state director, in a prepared statement. “Instead of passing laws that care for and provide for people in Alaska, they are trying to criminalize abortion and miscarriage, potentially charging doctors and patients with murder. Alaska voters and the courts have time and time again told government officials to stay out of private medical decisions, yet here we are fighting against junk science invading our laws. We call on legislators to stop atrocious attacks on our rights that are anti-science, out-of-touch and frankly offensive.”
It predicts that if allowed to go into law — an incredible long shot given that Senate leadership has already stated their opposition to restricting or banning abortion — the Alaska Supreme Court would be quick to strike it down, just as it has done with every other recent attempt to limit access to abortion in Alaska.
Matt Acuña Buxton is a long-time political reporter who has written for the Fairbanks Daily News-Miner and The Midnight Sun political blog. He also authors the daily politics newsletter, The Alaska Memo, and can frequently be found live-tweeting public meetings on Twitter.