Prolife legislators and certain prolife groups have eagerly endorsed Senate Bill 49, which seeks to define what “medically necessary” abortions are, in a praiseworthy but seriously naïve and dangerous approach to the problem of judicial usurpation.
We need to roll back the clock to 2001, when a certain Judge Sen Tan declared that “medically necessary” abortion funding was mandated by the Alaska state constitution. The decision was, on its face, a breath-taking and daring overthrow of the balance of power within state government. It amounted to judicial legislation and court-ordered spending. Tan’s ruling garnered barely a peep from all but a few prolife legislators at the time. The consensus was then, and still is now, that “the constitution is whatever a judge says it is,” and the lawmakers dutifully reinstated abortion funding, which had been carefully parsed and separated after years of legislative wrangling and bickering.
Now our prolife lawmakers are attempting to work within the framework of Tan’s hubris by defining just what a “medically necessary” abortion is. The hope is that with a new definition, some unborn human life will be saved.
However, the lawmakers are unwittingly playing into the hands of this impeachment-worthy judicial decree, and granting Tan’s ruling a legitimacy it does not deserve. Instead of saving “some” unborn human life by curtailing funding, they could and should end the funding entirely.
The Great Question the legislature has not yet asked itself is: what penalties are in store for the legislature if it failed to implement funding according to the personal social opinions or warped understanding of one judge’s jurisprudence? The answer is none. However, there is a penalty for Tan. His action is identified as “misfeasance”, an impeachable offense, found in Article 4, Section 12.
The state constitution declares in Article 2, Sec. 1:”The legislative power of the state is vested in a legislature, consisting of senate with membership of twenty and a house of representatives consisting of forty.” It does not say, “A legislature and a court system.” And while we’re at it, Article 4 says that “the judicial power shall be prescribed by law.” That means its parameters are defined by the legislature. End of story.
The entire nexus of legal abortion in Alaska has been predicated on Section 22 of Article 1, the Right to Privacy. But here, too, the legislature has abdicated its responsibilities. The section clearly states that the legislature shall “implement”, meaning “define” the extent of privacy. Yet for over fifty years now, the courts have been defining it through illegitimate case law.
The prolife legislators need to actually read the state constitution, which they are sworn to uphold, and end the sham of a runaway judiciary. Upholding the constitution, any constitution, is not a meaningless oath for a window-display ritual, but involves controversy and courage. On the federal level, we have a judiciary which has long ago overthrown the Constitution. By enacting SB 49, it will be permitted to do so now on the state level, with the ironic twist that it is enacted by well-meaning but subservient lawmakers who detest the ruling, but sheepishly obey it.
We all need to remember that leadership involves taking risks. The rewards would be cosmic, and eternal.