Legislature 2001: GOP push on to halt abortions

Kelly bill on the fast track

Posted: Thursday, May 03, 2001

Sen. Pete Kelly has found another weapon in his fight to stop state funding of elective abortions for poor women.

The Fairbanks Republican introduced a bill stipulating the constitutional right to privacy does not mean women have a right to receive state funding for abortions or that unmarried couples have a right to receive state benefits.

The bill - called unconstitutional by critics - is on a fast track. An amended version passed its only committee of referral Wednesday night in about 15 minutes and could hit the Senate floor this week. Kelly expects an identical bill to surface in the House, increasing the odds the measure will pass by adjournment next week. The Senate Judiciary Committee changed the measure Wednesday night to make it even broader.

Kelly is pushing the bill because courts in the past have upheld state-paid abortions for poor women by invoking the right-to-privacy clause in the state constitution - going against the will of Republican lawmakers in the majority. The first sentence in the clause reads: "The right of the people to privacy is recognized and shall not be infringed." However, Kelly argued the courts have ignored the second sentence which gives lawmakers some jurisdiction.

"It says 'The Legislature shall implement this section.' They've never recognized that, so I'm taking specific privacy language and putting it in statute," Kelly said. "We're not making a judgment call on abortion, we're just saying we don't have to pay for it."

Shannon O'Fallon of the Juneau Pro-Choice Coalition called the bill "horrible" and questioned whether it's constitutional.

"It seems to me as though Pete Kelly is trying to interpret the constitution, which is the proper role of the Alaska Supreme Court, not the Legislature," said O'Fallon.

Although the constitution stipulates the Legislature shall implement the privacy clause, O'Fallon said Kelly is going further and restricting the right to privacy for poor women seeking statefunded abortions.

"He's limiting it. He's saying the right extends to people who have money, not people who don't have money," O'Fallon said.

House Minority Leader Ethan Berkowitz put it this way: "That's like implementing it by destroying it."

The Senate Judiciary Committee on Wednesday night replaced the section referring to abortion and unmarried couples with broader language reading: "The privacy clause does not create a right to receive public money, a public benefit or a public service."

Kelly supported the change by pointing to the San Francisco municipal government, which has decided to fund sex-change operations for city employees. Kelly said the broader language would preclude courts from steering state dollars toward that procedure or anything else lawmakers oppose.

"What will they think up next? You cannot predict a court like this. What they will think up next is as absurd as you can think of," Kelly said.

If the bill passed, Kelly said it would not deny state benefits to unmarried couples - state agencies currently are allowed to negotiate contracts that include benefits for unmarried heterosexual or gay couples. However, the measure would preclude a judge from guaranteeing benefits for employees not covered by a labor contract, he said.

Meanwhile, Kelly still is negotiating with lawmakers uncomfortable with an anti-abortion provision he added to the state operating budget. The provision forbids the Alaska Department of Health and Social Services from funding elective abortions for poor women. However, if a court orders the agency to fund the procedure immediately anyway, the department's entire budget would collapse.

"We're still working on that as far as finding a possible different way to do that ... it isn't my desire to do anything that makes anybody feel more uncomfortable than they have to feel," said Kelly, who declined to elaborate.

Kathy Dye can be reached at kdye@juneauempire.com.

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