What to know about Alaska’s privacy clause and its link to abortion rights

a person holds a sign that reads "abortion is basic healthcare"
Iva Karoly-Lister holds a sign that reads, “Abortion is basic healthcare”. Roughly 200 people gathered at rush hour Tuesday night in midtown Anchorage to rally for the protection of reproductive rights. (Jeff Chen/Alaska Public Media)

The constitutional convention question is coming up on the November ballot. That’s Alaskans’ once-a-decade opportunity to decide whether to open up the state constitution for revisions. 

Anti-abortion advocates including the Alaska Family Council have their eyes on one section of the document in particular — the privacy clause — which is the basis for reproductive rights in Alaska. 

So what even is the privacy clause? 

Here’s what to know.

How long has the privacy clause existed for?

The privacy clause of the Alaska State Constitution dates back to the early 1970’s. Around that time, concerns about the evolving Information Age, the use of computers and the security of individuals’ private information were taking root. In 1972, the Alaska legislature drafted a constitutional amendment that explicitly guarantees the right to privacy and voters overwhelmingly approved it.

What does the right to privacy include? 

Over the years, legal decisions have defined what the right to privacy includes in Alaska. 

“The right to privacy is a steadily evolving one,” said former Alaska attorney general Bruce Botelho. 

Broadly, the privacy clause protects the right to shield personal information, as well as the right to personal autonomy. 

“It’s decided in part by cases that are real controversies,”  Botelho said. “And those controversies illuminate what the contours of what the right to privacy is,”

And it’s led to some important changes in Alaska law, like it supports marijuana possession rights in our state.

What does the privacy clause have to do with abortion?

It has really become the basis for Alaskans’ reproductive rights. 

Abortion has been a legal medical procedure in Alaska since 1970 — before Roe v. Wade — but the law included a provision that no hospital or person was required to participate in providing an abortion. In 1997, that was challenged when the Mat-Su Coalition for Choice sued the Valley Hospital Association in Palmer, which had banned abortions in its facilities.

The case reached the Alaska Supreme Court, where justices ruled that the constitution’s privacy clause protects individuals’ rights to abortion. 

“There’s some great language in the case about what could be more private and more personal than the right to decide what to do with your own body,” said Susan Orlansky, cooperative counsel for the Alaska ACLU. 

What has happened since the 1997 court ruling?

Orlansky said in the years since the Valley Hospital decision, other rulings have referenced the privacy clause to enumerate the scope of abortion rights. For example, in 2019, the Alaska Supreme Court rejected laws that restricted access to abortion for people on Medicaid. 

About a dozen U.S. states have similar privacy clauses in their state constitutions, and a few, including Florida, Montana and Minnesota view abortion as legal under the right to privacy.

How could a constitutional convention change Alaskans’ right to abortion? 

If a constitutional convention happens, Orlansky says there are a number of ways an abortion ban might be written into the law.

“You can rewrite the privacy clause to stay exactly the way it is, but now with a comment, ‘except that this doesn’t apply to abortion’,” she said. Or delegates might add a line defining life beginning at conception.

In any case, delegates would have to approve the new language and then Alaska voters would need to vote to accept the revised constitution after the convention. Botelho says that might not be easy to achieve.

“The bar is high, and to be honest, not simply with this issue, but I think generally one should want a high bar before changing the fundamental law of the state,” he said.

In a state that has historically supported access to abortion, Botelho says any constitutional abortion bans would likely be difficult to pass.

What questions do you have about the possibility of a constitutional convention that we missed? Email Kavitha George at kgeorge@alaksapublic.org, and we will update this Q&A. 

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Kavitha George is the host of Alaska Morning News at Alaska Public Media. She also reports on business, labor and the economy. Reach her at kgeorge@alaskapublic.org.