OPINION: Supreme Court signals on abortion are an ominous sign for Alaskans’ right to privacy

It has been said that a prophet is not honored in his own country. That’s only partly true in the case of the man who created the foundation on which a woman’s right to an abortion is secured in Alaska — at least for the time being. That man was John Havelock. Havelock, who died on Aug. 31 last year, served as Alaska’s attorney general from 1970 to 1973, appointed by Democrat Gov. William A. Egan. Among his many contributions to life in this state, he wrote the amendment to the state constitution that creates a right to privacy, a right that does not explicitly appear in the U.S. Constitution. That right has been interpreted by the Alaska Supreme Court to protect a woman’s right to choose to terminate a pregnancy if she wishes. When he wrote the amendment, which was adopted in a statewide election in 1972, Havelock anticipated that it would be used to protect abortion, for under the leadership of state Sen. John Rader, the state Legislature had enacted a law guaranteeing the right of abortion in 1971. Not every woman who wishes choice in the matter of abortion for herself or others knows the name Havelock, but they and the men who support that right owe its security in Alaska to Havelock.

If the U.S. Supreme Court takes away the national right to an abortion which has been constitutional since Roe v. Wade in 1973, as has been telegraphed by Justice Alito’s leaked draft opinion, more than one analyst has stated that other constitutional rights can also be taken away by the court. Roe has stood for 49 years and has been regarded as a precedent to be honored by the Supreme Court. In her October 2020 Senate hearing before being confirmed to the court, Justice Amy Coney Barrett said that the 1954 landmark Brown v. Board of Education decision is a “super precedent,” one that can’t be overturned. “For Brown to be overruled,” she said, “you would have to have Congress or some state or local government impose segregation again. I don’t see that happening any time soon.” On the other hand, Roe is not a super precedent, she said.

But Barrett’s statement raises a number of salient questions. Given the implicit racism in the voter suppression laws passed in a number of states, it may not be unthinkable that some form of segregation might be passed by some state or local government, especially as the U.S. Supreme Court passes increasing power to states which it does by finding federal laws constraining states to be unconstitutional, and by finding that court precedents have been wrongly decided, as Justice Alito wrote of Roe. More pertinent, it is not unthinkable that this U.S. Supreme Court, given the opportunity, might find that the Alaska Supreme Court wrongly decided the abortion challenges that have come before it, and take away from Alaskans what they have regarded as their constitutional right to abortion for half a century.

The overturning of Roe darkens the cloud of distrust that already burdened this U.S. Supreme Court. A September 2021 Gallup poll found a 40% approval rating for the court, down from 62% in 2001, the year after the court made George W. Bush president by deciding the Florida electoral vote. That approval may sink lower now. At his confirmation hearing in 2018, Justice Brett Kavanaugh averred repeatedly that precedent should be honored, but he is one of the five justices who appear to have voted to ignore precedent in the case of Roe. Sen. Susan Collins voted to confirm him, and also Justice Neil Gorsuch, based on her expectation that both would honor Roe as precedent. Sen. Lisa Murkowski voted to confirm justices Gorsuch and Barrett based on the same assumption. Sen. Murkowski now says the leaked opinion has rocked her confidence in the Court.

Both women should recognize that overturning Roe relegates women to a second-class, subordinate status.

The overturning of Roe reminds that many of the fundamental aspects of life we take for granted as permanent, in fact are not. Should Alaska voters opt for a constitutional convention at next November’s general election, we may find Alaska’s right to privacy under assault, and with it, Alaska women’s right to an abortion. The prospect of an Alaska constitutional right being taken away should alarm every Alaskan. John Havelock would have found any diminution of rights disheartening. He would have found the elimination of the constitutional right of privacy devastating.

Steve Haycox is an emeritus professor of history at the University of Alaska Anchorage.

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