(CN) - A man who wants Alaska to ban abortion with a constitutional amendment cannot sue to get his initiative on the ballot, the state Supreme Court ruled.
Clinton DesJarlais, co-sponsor of a proposal known as the "Natural Right to Life Initiative," wanted voters to amend the Alaska Constitution by requiring the state to "protect the natural right to life and body of all mankind from the beginning of biological development," according to the initiative language.
If certified and passed by voters, the law would have affirmed that "the natural right to life and body of the unborn child supersedes the statutory right of the mother to consent to the injury or death of her unborn child." In the case of danger to the mother's life, "the law of necessity shall dictate between the life of the mother and her child," according to the proposed initiative.
After DesJarlais asked Alaska's lieutenant governor to certify the initiative for the ballot, the state's department of law found the initiative "intended to extinguish a woman's constitutional right to privacy as recognized by the United States Supreme Court and the Alaska Supreme Court." Lt. Gov. Mead Treadwell declined to certify DesJarlais's initiative - prompting him to raise a challenge in superior court in 2011.
Finding that DesJarlais' anti-abortion law was "clearly unconstitutional," Judge Patrick McKay in Anchorage granted the state summary judgment in 2011. McKay also declined to issue an order that would require the state's attorneys to produce proof of their law licenses.
DesJarlais appealed pro se, and the Alaska Supreme Court affirmed Friday.
"Generally, judicial review of the constitutionality of an initiative is unavailable until after it has been enacted by the voters, 'since an opinion on a law not yet enacted is necessarily advisory,'" the court's unsigned decision states, citing its 2006 decision Kohlhaas v. State, Office of Lieutenant Governor
. "However, 'there are two exceptions to this rule: first, where the initiative is challenged on the basis that it does not comply with the state's constitutional and statutory provisions regulating initiatives, and second, where the initiative is challenged as clearly unconstitutional or clearly unlawful.'"
DesJarlais had argued that the U.S. Supreme Court's decision in Roe v. Wade
is not a controlling precedent because "living preborn children have natural rights to life," but the Alaskan jurists concluded that a law advocating a broad ban on abortion violates a woman's constitutional right to privacy."
"DesJarlais's proposed bill would preclude abortion to at least the same extent as the Texas criminal statutes at issue in Roe v. Wade
," the opinion states. "The Texas statutes provided exceptions for abortions where the mother's life was threatened, whereas DesJarlais's initiative would permit abortion only where dictated by 'the law of necessity,' in which case a defendant would still be subject to criminal prosecution. Because DesJarlais's initiative would prohibit abortion to an extent that the United States Supreme Court has deemed unconstitutional, it is 'clearly unconstitutional' under controlling authority."
DesJarlais also cannot succeed by pointing to the 8th Circuit's 2008 en banc ruling in Planned Parenthood v. Rounds
, which he said found that "preborn children are alive."
"We are not bound by the 8th Circuit's decision," the justices wrote. "Rather, we are bound by controlling United States Supreme Court precedent and Alaska Supreme Court precedent."
The court continued: "DesJarlais additionally references the United States Constitution, the Bible, the Declaration of Independence, maxims of law, the Nuremberg Trials, various Alaska statutes and rules of procedure and various dictionaries, apparently in support of his argument that the state should outlaw abortion. The state correctly responds that many of the sources cited by DesJarlais 'cannot create cognizable legal claims.'"