Summary

In 1993, the Center for Reproductive Rights, in partnership with the Alaska Civil Liberties Union, challenged Valley Hospital Administration’s stringent abortion policy. The case made its way to the Alaska Supreme Court, which ruled in the Center’s favor and recognized abortion as protected under the Alaska Constitution.

Specifically, the Court held:

• Alaska’s Constitution contains a right of privacy, which the Alaska Supreme Court holds protects the right to abortion.
• Alaska’s Supreme Court has held that the law must treat the decision to carry a pregnancy to term and abortion as legally equivalent choices and rejected state discrimination against people who made the decision to end a pregnancy.
• Alaska state court opinions recognize that low-income people face high or unsurmountable barriers to abortion access, holding that excluding abortion from Medicaid coverage while funding pregnancy care burdens their fundamental right to decide whether to continue a pregnancy, in violation of equal protection.

Background

Background

Prior to Roe, certain abortions were legalized in Alaska in 1970, including those that a physician provided in a hospital or other state Department of Health and Social Services-approved facility. However, even this partial right proved largely hollow. In 1992, Valley Hospital Administration (VHA), a quasi-public, non-profit corporation in the state, enacted a new policy that prohibited abortions at its facility unless: (1) the fetus had a condition incompatible with life; (2) the pregnant person’s life was threatened; or (3) the pregnancy was the result of rape or incest. The policy’s effect was to prohibit almost all abortions. Given the size and remote geography of Alaska, VHA was the only hospital serving those in the region (at the time home to over 10,000 women of reproductive age). It was also the only provider of second trimester abortion services in the state.

About the case and rulings

About the case and rulings

In 1993, the Center for Reproductive Rights, in partnership with the Alaska Civil Liberties Union, challenged Valley Hospital Administration’s stringent abortion policy. The case made its way to the Alaska Supreme Court, which ruled in the Center’s favor and recognized abortion as protected under the Alaska Constitution. The Court held that the state constitution’s privacy provision, adopted by the people in 1972, provides greater protection for individual privacy than the U.S. Constitution. The Court recognized that “[a] woman’s control of her body, and the choice whether or when to bear children, involves the kind of decision-making that is ‘necessary for … civilized life and ordered liberty,’” and that “the right to an abortion is the kind of fundamental right and privilege encompassed within the intention and spirit of Alaska’s constitutional language.” The Court further held that the state constitution required searching judicial review of a policy that infringed on this fundamental right, in order to determine whether it was the least restrictive way to advance a compelling state interest. Under this legal test, the Court held the VHA policy of denying abortion care, as “a matter of conscience, and not a medical, safety, or economic issue,” could not withstand constitutional scrutiny.

Shortly after Mat-su, the Center was back in state court to protect the rights of young people seeking abortion care. In 1997, the Alaska legislature passed a law that would have prevented any unmarried woman under 17 years of age from having an abortion unless she had obtained the consent of a parent, guardian, or custodian, or secured a court order authorizing the procedure. The Center, together with the Alaska Civil Liberties Union, argued that the law violated the state constitution’s guarantees of privacy, equal protection, freedom from discrimination based on sex, and due process. The Alaska Supreme Court ruled that under the right to privacy, the right to an abortion, as established in the previous Mat-su case, applied to minors just as it applied to adults. The Supreme Court remanded the case for the lower court to consider whether mandating parental consent furthered state interests using the least restrictive means available. When the case again made its way back up to the Alaska Supreme Court in 2007, the Court held the law was unconstitutional because giving parents “veto power” over a minor’s decision to terminate a pregnancy is not narrowly tailored to advance a state interest in protecting minors or promoting parental involvement and robs those minors of their fundamental privacy rights.

The Court’s decision spurred new attacks on constitutional protection for a minor’s right to decide whether or not to continue a pregnancy. In 2010, Alaska voters passed an initiative making it a criminal offense for a physician to provide an abortion to a patient under the age of 18 unless a parent, guardian, or custodian consented in writing or was notified 48 hours prior to the procedure. A minor’s only alternative was to provide a notarized and corroborated statement that they were abused or obtain authorization from a judge to proceed without parental involvement. In 2016, the state Supreme Court rejected this attempt and struck down the notification requirement, ruling that it violated the constitution’s equal protection clause. The Court reasoned that the state lacked a compelling reason for discriminating against minors who decided not to continue a pregnancy, given that they were legally equal to minors who choose to carry to term, a decision that did not require parental notice or consent.

The Center has also worked to ensure low-income Alaskans can access their constitutional right to abortion care. In 2001, in response to a challenge brought by the ACLU and Planned Parenthood, the Alaska Supreme Court held that a regulation denying Medicaid funding for medically necessary abortion care except in cases of life endangerment, rape, or incest violated the state constitution’s equal protection clause. For years, the state funded abortions through Medicaid, but in 2013-14, the legislature and health department enacted a new law and regulations that narrowed the definition of “medically necessary” to exclude almost all abortion care. The Center and Planned Parenthood filed a lawsuit that blocked the new restrictions during years of litigation. In 2019, the Alaska Supreme Court affirmed that the scheme violated the Alaska Constitution’s equal protection clause because it treated people seeking abortion differently from those seeking pregnancy care, burdening their fundamental reproductive rights. Stating that the Alaska Constitution’s protections are stronger than federal analogs, the Court cited Justice Brennan’s dissent in Harris v. McRae, the U.S. Supreme Court case upholding restrictions on funding for abortion under federal Medicaid, to assert that “the State burdens the exercise of a fundamental right for indigent people when it only subsidizes the inevitable alternative [to abortion].”

The Alaska Supreme Court’s series of opinions addressing minors and Medicaid funding expressly compare pregnancy and abortion care, holding that people seeking either are legally equivalent in the exercise of their fundamental reproductive rights. Accordingly, they must be able to make reproductive decisions on the same terms, without discrimination by the state. These holdings establish an inclusive view of reproductive autonomy that federal jurisprudence interpreting the U.S. Constitution has failed to recognize.

Victories in Alaska have supported the expansion of rights in other state courts across the country, some of which have cited Alaska Supreme Court opinions and employed parallel legal analysis, recognizing similarities to the Alaska Constitution in their own states.

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