Legislature(2019 - 2020)BELTZ 105 (TSBldg)

03/11/2020 01:30 PM Senate JUDICIARY

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

Audio Topic
01:37:13 PM Start
01:37:55 PM SJR13
02:34:36 PM Confirmation Hearing(s):
02:59:03 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Consideration of Governor's Appointees: TELECONFERENCED
Public Defender Agency - Samantha Cherot
Board of Governors of the Alaska Bar
- William Granger
Alaska Police Standards Council - Daniel Wetherly
State Commission for Human Rights - Jamie Allard
-- Public Testimony on All Appointees --
Heard & Held
-- Testimony <Invitation Only> --
-- Teleconference Listen Only --
          SJR 13-CONST. AM: PROHIBIT ABORTION/FUNDING                                                                       
1:37:55 PM                                                                                                                    
CHAIR COGHILL announced consideration  of SENATE JOINT RESOLUTION                                                               
NO. 13, Proposing  an amendment to the Constitution  of the State                                                               
of Alaska relating to abortion.                                                                                                 
1:39:04 PM                                                                                                                    
SENATOR HUGHES said she would  address three areas related to SJR
13:  first,   she  will  provide   the  federal   background  and                                                               
allowances related  to abortion  and how  states have  set policy                                                               
based  on these  allowances;  second, she  will  provide a  brief                                                               
history on the right to  privacy amendment in the Constitution of                                                               
the State of  Alaska; and third, she will  discuss the separation                                                               
of  powers as  it  relates  to SJR  13.  She  paraphrased from  a                                                               
portion of the sponsor statement:                                                                                               
     Senate  Joint Resolution  13 proposes  an amendment  to                                                                    
     the  Alaska State  Constitution, adding  a new  section                                                                    
     that   would  provide   clarity  regarding   Article  1                                                                    
     (specifically pertaining  to the  right to  privacy and                                                                    
     the right to equal  protection) and Alaska's ability to                                                                    
     set public policy related to abortion.                                                                                     
She  emphasized that  nothing  could be  construed  to secure  or                                                               
protect a right  to an abortion or to require  public funding for                                                               
an abortion.                                                                                                                    
1:40:22 PM                                                                                                                    
SENATOR  HUGHES  paraphrased  from   a  portion  of  the  sponsor                                                               
     Although  the U.S.  Supreme Court  declared  in Roe  v.                                                                    
     Wade (1973),  and reaffirmed  in Planned  Parenthood v.                                                                    
     Casey  (1992),   that  there  is  an   alleged  federal                                                                    
     constitutional  right to  abortion, the  federal courts                                                                    
     have nonetheless  held that states can  still legislate                                                                    
     related issues in  a number of ways    e.g., by banning                                                                    
     the  use of  public  funds for  abortions, requiring  a                                                                    
     parent to  consent before abortion can  be performed on                                                                    
     a   minor,  and   even  disallowing   certain  abortion                                                                    
     procedures  (such  as  partial-birth abortion  or  late                                                                    
     term abortion).                                                                                                            
She  said the  Alaska  Supreme  Court has  not  allowed what  the                                                               
federal courts  have allowed, and  other state  legislatures have                                                               
determined  certain policies  regarding abortion  and their  laws                                                               
have been upheld at the state and federal level.                                                                                
SENATOR HUGHES  said that when the  Alaska legislature determined                                                               
a policy related to abortion,  one that would have been permitted                                                               
and upheld  in other states,  Alaska courts have struck  down the                                                               
policies. This happened  when Alaskans determined a  policy via a                                                               
voter  initiative,  even though  the  federal  courts would  have                                                               
upheld it in other states.                                                                                                      
She paraphrased a portion of  the sponsor statement to illustrate                                                               
some concrete examples:                                                                                                         
     In Minnesota,  both parents must  be informed  before a                                                                    
     minor  can have  an abortion.  In Illinois,  one parent                                                                    
     must be  informed. There are  37 states that  have laws                                                                    
     requiring  parental  notification,   and  21  requiring                                                                    
     actual parental  consent; additionally, 21  states have                                                                    
     laws in effect that  prohibit "partial birth" abortion,                                                                    
     and 3  have laws that apply  to post-viability (ability                                                                    
     to  survive  outside  of   the  uterus)  abortions.  In                                                                    
     Alaska, we  are unable  to have  any provisions  in law                                                                    
     related   to   these   matters  unless   we   fix   our                                                                    
She  said that  when Alaska  passed a  parental consent  law, the                                                               
Alaska Supreme Court  struck it down. The  court ruling indicated                                                               
that   a  parental   notification   law   would  be   acceptable.                                                               
Subsequently, Alaskans  via a voter initiative  passed a parental                                                               
notification law, but the Alaska Supreme Court struck it down.                                                                  
She  explained  that when  she  refers  to  blue states,  she  is                                                               
referring to ones  that lean left, or their  state house, senate,                                                               
or governor  is a Democrat. Red  states are ones in  which states                                                               
lean right  or are Republican, and  gray states are a  mix. It is                                                               
not partisan, because across the  political spectrum, states have                                                               
set some  of these policies.  She provided some  examples, noting                                                               
that the slide presentation will illustrate her point.                                                                          
SENATOR HUGHES asked  members to fix the constitution  so some of                                                               
the same parameters  could be allowed to stand if  it is the will                                                               
of the people. She clarified that  this is not designed to answer                                                               
the question, in  terms of abortion, of what a  woman may legally                                                               
do,  or what  the  legislature  may fund.  It  does  not set  any                                                               
specific  parameters. She  offered  her view  that  SJR 13  would                                                               
allow Alaska  to be on  par with  other states by  preventing the                                                               
courts from adding something to  the Constitution of the State of                                                               
Alaska that its framers never envisioned.                                                                                       
1:45:08 PM                                                                                                                    
SENATOR HUGHES turned  to the second point. She  provided a brief                                                               
history of  the right to  privacy since  it has been  the court's                                                               
default to  overturn abortion related  policy in Alaska.  In 1972                                                               
the legislature  put the  right of privacy  on the  ballot, which                                                               
had  nothing   to  do  with   abortion.  According   to  Alaska's                                                               
Constitution, a  Citizen's Guide [Section 22.  Right of Privacy],                                                               
she  read,  "This  section  was  added  to  the  constitution  by                                                               
amendment in 1972.  It was prompted by fear of  the potential for                                                               
misuse of  computerized information  systems, which were  then in                                                               
their  infancy." In  the early  1970s, the  Department of  Public                                                               
Safety was  developing the Alaska  Justice Information  System, a                                                               
computerized database  of information on the  criminal history of                                                               
individuals. Fearful  that such a  system was the precursor  of a                                                               
"big  brother"  government information  bureaucracy,  legislators                                                               
responded  with the  constitutional amendment  which was  handily                                                               
ratified by  the voters. She said  that was the beginning  of the                                                               
concern about data mining.                                                                                                      
1:47:03 PM                                                                                                                    
SENATOR  HUGHES  turned  to  the  third  point,  which  is  about                                                               
protecting the separation of powers.  She offered her belief that                                                               
the state has seen a pattern  of obstruction by the courts. Judge                                                               
Andrew Kleinfeld,  Fairbanks, in  a 1995  Ninth Circuit  Court of                                                               
Appeals case, Compassion in Dying  v. State of Washington, made a                                                               
statement. She  read his remark  from [his  dissenting decision],                                                               
"That  a  question  is  important  does  not  imply  that  it  is                                                               
constitutional.  The  founding  fathers  did  not  establish  the                                                               
United States as a democratic  republic so that elected officials                                                               
would decide trivia,  while all great questions  would be decided                                                               
by the judiciary."                                                                                                              
She asked  members whether the  legislature should hand  over the                                                               
answering  of all  great questions  to  the judiciary  or if  the                                                               
legislative branch  should address the great  questions. She said                                                               
the legislative  branch has  the duty,  obligation, and  power to                                                               
answer  great questions.  Justice  Craig Stowers  commented on  a                                                               
ruling  that struck  down a  2014 law  passed by  the legislature                                                               
pertaining to  the public  funding of  abortions. She  quoted: "I                                                               
believe  the   court  today   fails  to   give  respect   to  the                                                               
legislature's  proper  role,  but  instead  substitutes  its  own                                                               
judgment  for that  of  the legislature."  She  asked members  to                                                               
respect  the  careful  balance  of  power  and  ensure  that  the                                                               
legislature  can  fulfill  its  duty as  representatives  of  the                                                               
people,  that it  not be  subjugated  by the  judicial branch  or                                                               
relinquish its  responsibility to the judiciary.  The legislature                                                               
has the  ability and the right  under the U.S. Constitution  as a                                                               
state legislature to make laws related to abortion.                                                                             
SENATOR  HUGHES said  she personally  wants unborn  babies to  be                                                               
protected and  for abortion to end.  She would like babies  to be                                                               
cared  for and  cherished by  loving parents,  including adoptive                                                               
families.  She offered  her belief  that one  day Americans  will                                                               
look  back on  abortions, like  slavery, as  a barbaric  act that                                                               
does  not  have any  place  in  a  civil society.  However,  this                                                               
resolution  is not  about  that; it  simply  will allow  Alaskans                                                               
rather than the  courts to make decisions on  policies related to                                                               
abortion in Alaska.                                                                                                             
1:51:32 PM                                                                                                                    
LISA   HART,  Staff,   Senator  Shelley   Hughes,  Alaska   State                                                               
Legislature, Juneau, Alaska, began  a slide presentation, "SJR 13                                                               
Constitutional Amendment  Relating to Abortion," consisting  of a                                                               
series  of  color  coded U.S.  maps  illustrating  the  political                                                               
makeup of each state based on  the house and senate majority, and                                                               
the office of  the governor. She said slide 2  shows eight states                                                               
with  minimal or  no  timing restrictions  for  abortions in  the                                                               
state, including Alaska.                                                                                                        
1:52:49 PM                                                                                                                    
MS.  HART reviewed  slide 3,  which  showed 24  states that  have                                                               
state laws  in place  to disallow abortions  after 24  weeks. She                                                               
noted the  broad makeup of red,  gray, and blue states  that have                                                               
set this 24-week parameter. She  read, "In 1973 the Supreme Court                                                               
established that  states could prohibit abortion  after viability                                                               
  the point at which a  baby can self-sustain life. For reference                                                               
purposes, viability  is determined on  an individual basis  - the                                                               
standard  number of  weeks for  viability  averages around  22-24                                                               
She turned to slide 4, which  identified states that do not allow                                                               
any abortions  after 18-22 weeks.  She pointed out that  three of                                                               
the 14 states  are gray states, including  Kansas, Wisconsin, and                                                               
North Carolina.                                                                                                                 
MS. HART reviewed slide 5, which  depicted the states that do not                                                               
allow any  abortion after six  to eight weeks, which  is commonly                                                               
referred  to  as a  "heartbeat  bill".  Two  of the  six  states,                                                               
Louisiana and Kentucky are gray states.                                                                                         
1:54:16 PM                                                                                                                    
MS.  HART  reviewed  slide  6,  "Parental  Involvement,  Parental                                                               
Consent,  and  Parental  Notification." This  slide  shows  which                                                               
states  have enacted  legislation  for  parental involvement  for                                                               
abortion for  parental consent,  parental notification,  or both.                                                               
She  said legislation  by  the states  has  opened a  much-needed                                                               
debate  about the  role of  states, legislatures,  and government                                                               
with respect to abortion.                                                                                                       
1:54:53 PM                                                                                                                    
MS. HART read slide 7:                                                                                                          
     The Alaska Supreme Court has  determined that the state                                                                    
     constitution provides a broader  right to abortion than                                                                    
     that interpreted in the U.S. Constitution                                                                                  
     Passing  SJR   13  will  allow   common-sense  abortion                                                                    
     policies  if we  so  choose    as  permitted under  the                                                                    
     federal constitution                                                                                                       
     It  will  allow  elected  officials --  or  the  people                                                                    
     acting through  the initiative process --  to determine                                                                    
     the   policies  on   abortion,  instead   of  unelected                                                                    
     justices on the Supreme Court.                                                                                             
1:55:35 PM                                                                                                                    
MS. HART read slide 8:                                                                                                          
     Abortion-Related Laws Overturned in Alaska                                                                                 
     Hospital Participation:                                                                                                  
     1970 law passed (no mandatory participation)                                                                               
     1997 courts struck down                                                                                                    
     Parental Consent:                                                                                                        
     1997 law passed                                                                                                            
     2007 courts  struck down:  court recommended  to change                                                                    
     "parental consent" to "parental notification"                                                                              
     Parental Notification:                                                                                                   
     2010 voter initiative passed                                                                                               
     2016 courts struck down                                                                                                    
     Public Funding:                                                                                                          
     1998  law  passed to  limit  (to  rape/incest, life  of                                                                    
     2001 struck  down (but limiting to  medically necessary                                                                    
     2014 law passed (to limit medically necessary)                                                                             
     2019 courts struck down                                                                                                    
She  said  these   are  examples  that  show   where  the  Alaska                                                               
legislature and a voter initiative have  put laws on the books in                                                               
the areas  of hospital participation, parental  consent, parental                                                               
notification,  and  public  funding.  However,  the  courts  have                                                               
struck down these laws.                                                                                                         
1:56:10 PM                                                                                                                    
MS. HART read slide 9, the sectional analysis of SJR 13:                                                                        
     Section 1    Article  I, Constitution  of the  State of                                                                  
     Alaska, Page  1, Lines 3-7  Amends the  Constitution of                                                                  
     the State  of Alaska by  adding a new  section, Section                                                                    
     26.  Abortion. The  amendment states  that in  order to                                                                    
     protect human  life, nothing  in this  constitution may                                                                    
     be  construed  to  secure  or protect  a  right  to  an                                                                    
     abortion or require the State to fund an abortion.                                                                         
     Section 2    Article  I, Constitution  of the  State of                                                                  
     Alaska,  Page 1,  Lines 8-10  Adds  that the  amendment                                                                  
     proposed by this resolution shall  be placed before the                                                                    
     voters of  the state  at the  next general  election in                                                                    
     conformity with art. XIII, sec.  1, Constitution of the                                                                    
     State of Alaska, and the election laws of the state.                                                                       
1:57:07 PM                                                                                                                    
CHAIR COGHILL thanked the presenter.                                                                                            
1:58:26 PM                                                                                                                    
JEANNEANE MAXON,  Attorney, J.D., Law and  Compliance Consultant;                                                               
Associate Scholar, Charlotte  Lozier Institute, Washington, D.C.,                                                               
said she  has worked  on public  policy for  over ten  years. She                                                               
offered her  view that  SJR 13 will  return to  Alaska's citizens                                                               
and  this legislature  the  constitutionally  protected right  to                                                               
make  decisions on  abortion. While  the U.S.  Supreme Court  has                                                               
routinely  affirmed   the  constitutional  right  of   states  to                                                               
reasonably restrict or expand their  laws on abortion, the Alaska                                                               
Supreme   Court  usurped   this  right   in  1997   with  notable                                                               
consequences.  The  rest  of  the  nation  saw  a  seven  percent                                                               
decrease  in  abortion  rates,  but  Alaska  saw  a  two  percent                                                               
increase  in  abortion  while   the  population  was  decreasing,                                                               
according to  recent statistics.  She reported  that in  2019, 31                                                               
states  passed laws  related to  abortion, either  restricting or                                                               
expanding   their   abortion   policies,   which   represents   a                                                               
significant   increase  from   2018.  As   previously  mentioned,                                                               
hundreds  of laws  have  been passed  throughout  the country  in                                                               
recent years. Notably absent is Alaska, she said.                                                                               
1:59:51 PM                                                                                                                    
MS. MAXON  reiterated that  SJR 13  does not  take a  position on                                                               
abortion but rather restores to  the citizens of Alaska the power                                                               
to decide  this issue for  themselves, which is afforded  to most                                                               
citizens  in other  states. In  recent years,  three states  have                                                               
approved similar  changes to  their constitutions:  Alabama, West                                                               
Virginia, and  Tennessee. Louisiana  is currently  considering an                                                               
amendment, as  well. The United  States Court of Appeals  for the                                                               
Sixth Circuit  upheld the right  for Tennessee voters  to approve                                                               
such ballot measures. The U.S.  Supreme Court allowed this ruling                                                               
to stand.  As a  result these legislatures  in these  states have                                                               
been  able  to  enact  some very  common  sense  restrictions  on                                                               
abortion, including post-viability  and post-22 week prohibitions                                                               
on  abortion with  exceptions  for  the life  of  the mother  and                                                               
informed consent laws  designed to protect the  health and safety                                                               
when minor girls are seeking abortion.                                                                                          
She said  the need for  this legislation is important  because of                                                               
the  strong   possibility  that  Roe   v.  Wade  could   soon  be                                                               
significantly  curtailed  or  overturned.   Last  week  the  U.S.                                                               
Supreme Court  heard June  Medical Services  v. Russo.  This case                                                               
presents the first opportunity for  the new court with a majority                                                               
of five  justices poised  to do  so. A decision  in that  case is                                                               
expected  no  later  than  June  30, 2020.  If  Roe  v.  Wade  is                                                               
overturned,  states  will be  afforded  the  opportunity to  make                                                               
broader decisions  on their abortion policy  without interference                                                               
from the  federal government.  In anticipation  of this,  half of                                                               
the states  have passed laws  that will automatically  define the                                                               
legality  of   abortion  in  their  states,   including  bans  or                                                               
legalization, with most states falling somewhere in between.                                                                    
2:02:06 PM                                                                                                                    
MS.  MAXON  said  that  because of  the  Alaska  Supreme  Court's                                                               
decision,   Alaska's  citizens   have  not   been  afforded   the                                                               
opportunity to  prepare for  this possibility.  Considering these                                                               
developments, she  offered her  belief that  it is  critical that                                                               
Alaskans also  have a  voice on  abortion policy,  either through                                                               
ballot initiatives  or through their  elected officials.  If this                                                               
resolution fails to  be brought before the voters,  a majority of                                                               
three  individuals on  the  Alaska Supreme  Court  will hold  the                                                               
absolute  power   of  determining  abortion  policy   in  Alaska.                                                               
Alaska's citizens deserve  their rights on this  issue. She urged                                                               
members to support SJR 13.                                                                                                      
2:02:50 PM                                                                                                                    
CHAIR COGHILL thanked the presenter.                                                                                            
2:03:07 PM                                                                                                                    
LOREN  LEMAN, representing  himself, Anchorage,  Alaska, said  he                                                               
previously served 14 years in  the legislature and for four years                                                               
as lieutenant governor  of Alaska. He spoke in support  of SJR 13                                                               
because  it will  give the  state the  ability to  set policy  on                                                               
abortion, which  has been usurped for  more than 20 years  by the                                                               
He stated  that for over 23  years he has defended  the rights of                                                               
parents to be involved in  their children's lives with respect to                                                               
abortion. Although his effort has  been disrupted and delayed, he                                                               
is not defeated  or giving up. In 1997, he  sponsored Senate Bill                                                               
24 to  enable the  state to  enforce a 1970  law that  required a                                                               
doctor to  obtain parental consent before  performing an abortion                                                               
on a  girl under the age  of 18. A 1970  attorney general opinion                                                               
stated that law was unenforceable  because the U.S. Supreme Court                                                               
had subsequently ruled that state  parental involvement laws must                                                               
allow  minors the  option to  seek a  waiver in  court, which  is                                                               
commonly  known as  a judicial  bypass.  In his  view, the  state                                                               
effectively ignored the parental consent law.                                                                                   
MR.  LEMAN explained  that  Senate Bill  24  included a  judicial                                                               
bypass provision in full compliance  with the rulings of the U.S.                                                               
Supreme  Court.  At the  time,  [1997]  that court  had  recently                                                               
issued a  9-0 decision  in a case  from Montana  that effectively                                                               
signaled  to states  not to  send any  cases related  to parental                                                               
consent since  it had  provided guidance.  He remarked  that even                                                               
Ruth Bader Ginsberg joined in that decision.                                                                                    
2:06:01 PM                                                                                                                    
MR. LEMAN  reported that  Senate Bill  24 passed  the legislature                                                               
with super majority  support. However, before the  law could take                                                               
effect, Planned  Parenthood challenged it  and it took  ten years                                                               
to  resolve.  He said  he  was  extremely disappointed  when  the                                                               
Alaska Supreme  Court issued  a 3-2 decision  to strike  it down.                                                               
Highly respected  Justice Carpeneti said in  a dissenting opinion                                                               
that,  "This court's  rejection of  the legislature's  thoughtful                                                               
balance is inconsistent  with our own case  law and unnecessarily                                                               
dismissive of  the legislature's role  in expressing the  will of                                                               
the people." This  statement encompassed his view,  too, he said.                                                               
In the  majority opinion, Justice Fabe  wrote that a law  that is                                                               
less  restrictive than  parental consent,  such as  one requiring                                                               
parental notification would be acceptable.                                                                                      
He said  the legislature introduced a  bill to do so,  but it did                                                               
not  move.  He  helped  sponsor an  initiative  in  2010,  Ballot                                                               
Measure 2, gathering  more than 45,000 signatures to  place it on                                                               
the  ballot.  Ballot Measure  2  received  more than  56  percent                                                               
approval by voters.                                                                                                             
2:08:10 PM                                                                                                                    
MR. LEMAN said  Planned Parenthood v. Alaska  challenged the law,                                                               
which  was  upheld  by  superior court,  relying  on  the  Alaska                                                               
Supreme Court's assurance that a  parental notification law would                                                               
be considered constitutional,  but it was struck down  4-1 by the                                                               
court. Some  felt that the  court lied to  them, he said.  In the                                                               
sole  dissenting opinion,  Chief Justice  Craig Stowers  said, "I                                                               
cannot  see how  the  court  can reach  these  results under  our                                                               
standard  of review  for constitutional  questions, adopting  the                                                               
most persuasive  rule of law  in light of precedent,  reason, and                                                               
He offered his view that Justice  Stowers was correct. He said he                                                               
also believes  that many  of the  Alaska Supreme  Court justices'                                                               
decisions  are not  driven by  the  law or  constitution, but  by                                                               
personal   ideology,  which   is  a   problem.  He   stated  that                                                               
legislators  make  decisions  based  on  their  values  and  life                                                               
experiences.  However,  legislators  earn  their  right  to  make                                                               
decisions as elected officials.  Unelected judges have not earned                                                               
that  right so  if judges  exceed their  authority, these  judges                                                               
deserve an  aggressive response from  the people. He said  SJR 13                                                               
will allow the public to weigh  in again. He reiterated that this                                                               
resolution does not  ban abortion or change abortion  law, but it                                                               
will restore to Alaska's leaders  the right to set policy related                                                               
to abortion.  That power  has been taken  away from  Alaskans who                                                               
must live  with the bad  results. SJR 13 is  a step in  the right                                                               
direction. It  will help Alaskans  decide the type of  society in                                                               
2:11:11 PM                                                                                                                    
SENATOR  REINBOLD  commended on  his  relentless  effort on  this                                                               
issue. She  related her  own experience  listening to  the Alaska                                                               
Supreme  Court decision  on the  initiative  related to  parental                                                               
consent.  She wondered  what efforts  he has  made to  remove any                                                               
MR. LEMAN said the voters can  vote on retention of judges during                                                               
elections. He said he has  voted against retaining judges when he                                                               
believes  they have  not followed  the constitution  or have  not                                                               
correctly interpreted the law. He was  unsure if there will be an                                                               
organized effort, but  individuals have the right to  vote and to                                                               
speak up.                                                                                                                       
2:14:56 PM                                                                                                                    
CHAIR COGHILL agreed  that SJR 13 would allow the  right to speak                                                               
up and give the voice back to Alaskans.                                                                                         
2:16:18 PM                                                                                                                    
STACIE  KRALY,   Chief  Assistant  Attorney   General;  Statewide                                                               
Section  Supervisor,  Civil  Division,  Human  Services  Section,                                                               
Department  of   Law,  said  the  committee   received  testimony                                                               
providing  an overview  of  litigation in  Alaska.  She said  she                                                               
would provide  a broad overview  of the Alaska Supreme  Court and                                                               
U.S. Supreme court cases related to abortion.                                                                                   
2:17:52 PM                                                                                                                    
MS. KRALY  said that in 1973,  the U.S. Supreme Court,  in Roe v.                                                               
Wade,  found   a  constitutional  right  to   abortion.  Previous                                                               
testifiers have  provided an  overview of cases  for the  past 40                                                               
years in  Alaska and her  focus will  be on Alaska  Supreme Court                                                               
cases. She reiterated that in  1973, the U.S. Supreme Court ruled                                                               
that  there was  a constitutional  right  to abortion  in Roe  v.                                                               
Wade. In  1976, the federal  government enacted what  is commonly                                                               
referred to as  the Hyde amendment that prohibits  use of federal                                                               
funds  for  abortions  under Medicaid.  The  Hyde  amendment  was                                                               
challenged at the  federal level in 1980 under  Harris v. McCrae.                                                               
The U.S. Supreme  Court ruled that the  legislative enactment was                                                               
constitutional, affirming the limitation  on federal funds except                                                               
under narrow circumstances, including a  threat to the health and                                                               
welfare of  the mother  or for  victims of  rape or  incest. That                                                               
legislative enactment  has been the  law of the land  since 1980,                                                               
she said.                                                                                                                       
2:18:57 PM                                                                                                                    
MS. KRALY  said that in 1977,  the Alaska Supreme Court  ruled in                                                               
Valley   Medical   v.  Mat-Su   Coalition   that   there  was   a                                                               
constitutional right  to abortion  in Alaska. The  Alaska Supreme                                                               
Court ruled  that it does not  rely on the Roe  v. Wade analysis,                                                               
that  it is  not  looking  at federal  case  law when  evaluating                                                               
constitutional rights, but it uses  the Constitution of the State                                                               
of Alaska, which provides much  broader protections than the U.S.                                                               
Constitution does.  This means  that when case  law in  Alaska is                                                               
evaluated,  the Alaska  Supreme Court  does not  rely on  federal                                                               
case law in  its analysis. The primary basis for  the right to an                                                               
abortion under  Valley Medical v.  Mat-Su Coalition rests  in the                                                               
constitutional right to privacy in  the Constitution of the State                                                               
of Alaska, Article 1, Section 22.                                                                                               
2:20:21 PM                                                                                                                    
MS. KRALY  said Senator Hughes  provided several  restrictions on                                                               
the  right to  an abortion,  which  were predicated  in the  1992                                                               
Planned  Parenthood v.  Casey decision.  She  indicated that  the                                                               
U.S. Constitution  provides states  with the ability  to regulate                                                               
abortion so long as it does  not create an undue burden on access                                                               
to services. She stated that  the court departed from a viability                                                               
argument to  an undue burden  analysis. Anything a state  does or                                                               
any regulation  or statute that  it enacts is evaluated  under an                                                               
undue burden analysis, she said.                                                                                                
In  1997, the  Department of  Health and  Social Services  (DHSS)                                                               
adopted  a  regulation, 7  AAC  43.140,  that followed  the  Hyde                                                               
amendment,  which  indicated  that  the state  would  not  permit                                                               
public  funds for  abortion.  At  the same  time  Senate Bill  24                                                               
formalized  parental consent  provisions  in  AS 18.16.020.  Both                                                               
cases were appealed to the Alaska Supreme Court.                                                                                
MS. KRALY turned  to the 2001 State v.  Planned Parenthood public                                                               
funding case. The Alaska Supreme  Court again affirmed that there                                                               
is a constitutional  right to an abortion  under the Constitution                                                               
of  the State  of  Alaska  relying upon  Article  1, Section  22,                                                               
related to the  right to privacy. However, the  Court also looked                                                               
at equal protection,  relying on the 1997 Valley  Medical v. Mat-                                                               
Su Coalition ruling regarding the  restriction on public funding.                                                               
The  Court  ruled  that  the   regulation  adopted  by  DHSS  was                                                               
unconstitutional,  and therefore  the state  must cover  publicly                                                               
funded abortions with  the distinction that it  meant using state                                                               
funds, not federal funds for abortions.                                                                                         
2:22:44 PM                                                                                                                    
MS. KRALY  said that in  2001, the  Alaska Supreme Court  took up                                                               
the  first  parental  consent  case, which  she  referred  to  as                                                               
Planned  Parenthood 1  (PP1). This  case  challenged whether  the                                                               
parental  consent  act  was   constitutional.  First,  the  Court                                                               
affirmed the constitutional right to  an abortion under the right                                                               
to privacy provided  by the Constitution of the  State of Alaska.                                                               
Second, the  Court held that  minors have a  constitutional right                                                               
to privacy, which  extended the right to an abortion  to a minor.                                                               
The Court  held that the trial  court failed to engage  in a more                                                               
robust  evaluation  of  the equal  protection  analysis,  relying                                                               
solely  on  the  Valley  Medical v.  Mat-Su  Coalition  right  to                                                               
privacy argument.  The Court remanded  the case back  to superior                                                               
court for a  trial to determine if an equal  protection issue was                                                               
present.  In  2009, after  the  superior  court heard  the  case,                                                               
Planned Parenthood v.  Casey, was back before  the Alaska Supreme                                                               
Court, referred to as PP II.  In that case the Court affirmed its                                                               
prior ruling related to the right  to privacy and the right to an                                                               
abortion, but ruled  that it violated equal  protection such that                                                               
the  parental consent  act was  not constitutional.  She recalled                                                               
that  Senator  Hughes  and  Mr. Leman  both  indicated  that  the                                                               
decision  was  lengthy,  and  it   outlined  the  possibility  of                                                               
parental notification  being constitutional  in the  majority and                                                               
minority opinions. As  a result, the voter  initiative took place                                                               
[in 2010 with Ballot Measure 2]  and the parental consent act was                                                               
amended to require a parental notification component.                                                                           
2:24:59 PM                                                                                                                    
MS. KRALY  said that in  2013, DHSS adopted a  regulation related                                                               
to public funding  and medical necessity, which goes  back to the                                                               
original public funding case. In  2014, the legislature passed AS                                                               
47.07.068,  related  to  medical   necessity  for  abortion.  She                                                               
pointed  out that  under  PP  1, the  Court  did not  distinguish                                                               
between medically  necessary and elective abortions,  but it made                                                               
it clear that  the Medicaid program does  not cover non-medically                                                               
necessary  services. The  Court left  open the  question of  what                                                               
would be covered  under a medically necessary  analysis. When the                                                               
statutes  and  regulations  were  amended to  define  what  would                                                               
constitute   medical  necessity,   those  enactments   were  also                                                               
She turned to the last two cases.  In 2016, in State of Alaska v.                                                               
Planned Parenthood,  referred to  as PP III,  notwithstanding the                                                               
prior  judicial  language  about  notification,  the  Court  went                                                               
through the same analysis related  to the constitutional right to                                                               
privacy  and  equal  protection   and  found  that  the  parental                                                               
notification provision  was also unconstitutional because  it was                                                               
not narrowly tailored to achieve the state's interests.                                                                         
2:27:00 PM                                                                                                                    
MS. KRALY said  that in 2019, in State v  Planned Parenthood, the                                                               
state had its last public  funding litigation over the definition                                                               
of  medical   necessity.  The  Court   held  that  there   was  a                                                               
constitutional  right   to  an  abortion,  but   under  an  equal                                                               
protection analysis, the statutory  and regulatory framework were                                                               
unconstitutional because  it treated individuals  differently. It                                                               
treated women  seeking non-abortion services differently  than it                                                               
did women who were seeking abortion services.                                                                                   
2:27:41 PM                                                                                                                    
MS. KRALY offered  that the common theme is that  women in Alaska                                                               
have  a constitutional  right to  an abortion  under the  privacy                                                               
clause, Article 1,  Section 22, of the Constitution  of the State                                                               
of  Alaska.  The  analysis  goes  through  to  the  1992  Planned                                                               
Parenthood v. Casey, which does  not apply to Alaska. The attempt                                                               
to  regulate   an  abortion   in  Alaska   is  examined   in  the                                                               
Constitution  of   the  State  of   Alaska  framework   of  equal                                                               
protection. She reiterated  that in Alaska, the  Court has always                                                               
looked through  a state lens and  does not rely upon  the federal                                                               
framework for a right to an abortion.                                                                                           
2:28:27 PM                                                                                                                    
CHAIR  COGHILL said  the  committee will  consider  the case  law                                                               
related to the  right to privacy and the  equal protection issues                                                               
and consider  how that interacts with  the constitutional issues.                                                               
He  suggested   that  the  constitution   will  allow   a  public                                                               
discussion, but it  still must go through a series  of tests. The                                                               
committee  must go  through  the equal  protection  and right  to                                                               
privacy least  restrictive means  alongside something  that might                                                               
be passed under SJR 13.                                                                                                         
2:29:38 PM                                                                                                                    
MS. KRALY said that is correct;  if SJR 13 passed the legislature                                                               
and went through  an initiative process it would  create a stand-                                                               
alone  provision  in the  Constitution  of  the State  of  Alaska                                                               
related to  abortion. While that  would provide  a constitutional                                                               
right  to regulate  or  make  adjustments on  how  that right  is                                                               
exercised in the state, it would  be necessary to make sure it is                                                               
framed  and  crafted  so  that  the  state  would  not  run  into                                                               
additional   roadblocks    related   to    other   constitutional                                                               
CHAIR  COGHILL  said  he anticipates  that  other  constitutional                                                               
concerns would  arise because natural  tensions exist in  laws on                                                               
criminal justice  issues and  fish and  game management  or other                                                               
natural resource management.                                                                                                    
SENATOR  HUGHES said  that Cori  Mills,  Legislative Legal  could                                                               
also assist  the committee with constitutional  issues. She asked                                                               
if any laws  that the courts ruled as  unconstitutional were ever                                                               
fixed.  She related  her understanding  that  if this  resolution                                                               
passed  the state  would have  a blank  slate and  would need  to                                                               
revisit previous laws.                                                                                                          
CHAIR COGHILL  related his  understanding that  if SJR  13 passes                                                               
and an  initiative passes, it needs  to be clear that  the courts                                                               
would need to consider the language.                                                                                            
2:32:47 PM                                                                                                                    
MS. KRALY agreed it would open new discussions on the issue.                                                                    
2:32:59 PM                                                                                                                    
SENATOR KIEHL said he has numerous questions on SJR 13.                                                                         
CHAIR   COGHILL  suggested   that  the   committee  should   hold                                                               
discussions  before  public  testimony  it taken.  He  said  that                                                               
public testimony would be held open.                                                                                            
2:34:07 PM                                                                                                                    
CHAIR COGHILL said SJR 13 would be held in committee.                                                                           

Document Name Date/Time Subjects
Maxon Testimony Alaska SJR 13.2-26-20.pdf SJUD 3/11/2020 1:30:00 PM
SJR 13
2020.2.21 Cherot Samantha Resume.pdf SJUD 3/11/2020 1:30:00 PM
Samantha Cherot Resume
Ashburn and Mason Letter of Support for Samantha Cherot.pdf SJUD 3/11/2020 1:30:00 PM
Ashburn and Mason Letter of Support for Samantha Cherot
2020.03.10 Cashen Letter of Support for Sam Cherot.pdf SJUD 3/11/2020 1:30:00 PM
Cashen Letter of Support for Samantha Cherot