Is the right to a medical abortion protected under Alaska’s constitutional privacy rights — or blocked by state law?

Is the right to a medical abortion protected under Alaska’s constitutional privacy rights — or blocked by state law?
Published: Mar. 15, 2023 at 9:21 PM AKDT
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ANCHORAGE, Alaska (KTUU) - A federal judge in Texas promises a decision “soon” on whether to grant a request from a group of anti-abortion groups to rescind the Federal Drug Administration’s approval of the widely used abortion-inducing drug mifepristone — a decision that could lead to major changes throughout the country on how women access abortion where it is legal.

The federal judge is also considering a position taken by Alaska Attorney General Treg Taylor that only medical professionals can administer the drug.

In Alaska, the fight over mifepristone was renewed after Taylor sent letters to pharmacies reminding them of his position. The argument here centers on what a state statute says — versus whether the state constitution’s right to privacy includes medical decisions.

Mifepristone — also known by the name RU-486 — is a drug used to induce an abortion without surgery, also called a medical abortion. It has been approved for this use since September of 2000, but pharmacies are still waiting for FDA approval to dispense it. Currently it can only be obtained from a physician, nurse, or health clinic.

According to the Alaska Department of Law, AS 16.18.010(a) codifies the right of an Alaskan to use the drug.

“Mifepristone may be used a certain number of weeks into the term to administer an abortion. But under Alaska law, a woman must still be in the presence or telehealth presence of a medical provider when taking the dose,” according to an email explanation from a department spokesperson.

After the attorney general sent a letter to pharmacies regarding that position, Walgreens Pharmacy responded with a statement saying it would not distribute the drug where it is illegal. After criticism from abortion rights advocates, the chain then said it had always intended to distribute the drug as soon as the FDA approves legal distribution through pharmacies.

In the meantime, the nonprofit health group Planned Parenthood took issue with the attorney general’s position. Rose O’Hara-Jolley, the Alaska Director of Planned Parenthood Alliance Advocates, says this contradicts the right to privacy enshrined in the state constitution.

“I do find it interesting that the attorney general has entered into a case and an argument in line with people in the Lower 48, that appears to be in direct contradiction to the Alaska constitution which strongly supports the right to privacy, equal protection — and the courts have repeatedly said — supports our right to access an abortion,” O’Hara-Jolley said.

O’Hara-Jolly argues that constitutional protections take precedence over state statutes.

The attorney general’s office declined to respond directly to Planned Parenthood, instead noting that nothing filed in court so far by Planned Parenthood “would authorize the self-administration of a medication abortion by a patient. Thus, the direct dispensing of mifepristone to patients in Alaska would violate Alaska law.”

“Other than that, we are not going to comment further on the litigation as this is a matter for the courts to decide,” the statement said.

One of the core issues for both sides of the debate is the actual safety of mifepristone, which is also used to treat high blood sugar in patients with both diabetes and Cushing’s syndrome.

Attorney General Taylor signed on to a letter arguing that the drug is far riskier to pregnant women than surgical abortions. There are some studies that show an increased risk of certain complications from medical abortions compared to surgical ones. One of the studies often cited by anti-abortion activists is a 2009 study done in Finland.

That research did conclude medical termination “is associated with a higher incidence of adverse events.” But the conclusion also noted that “both methods of abortion are generally safe.”

O’Hara-Jolley argues that anti-abortion advocates highlight only certain parts of studies to make exaggerated points.

“The overwhelming amount of research and studies — again, of a drug that’s been used for 20 years by 4 million people — is that it’s 99% effective and it is safe to use,” O’Hara-Jolley said.

A case now before the Superior Court of Alaska challenges the state’s argument that only licensed physicians can perform drug-induced abortions. Planned Parenthood won a preliminary injunction and currently, advanced care clinicians can also provide abortion-inducing medication. As part of that case, the judge cited evidence that mifepristone “has a low risk of complications.”

But that case does not tackle the broader issue of whether individuals might one day be able to self-administer the drug.

When the Superior Court will issue its final ruling in Planned Parenthood’s suit against the State of Alaska is unknown.