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Walker’s Quagmire: Social Issues Happen

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Also republished by the Alaska Dispatch News.

It wasn’t long before wary Democrats, already reluctant to throw their immediate support behind the newly-minted gubernatorial “fusion ticket” of Bill Walker and Byron Mallott, erupted in heartburn. The quick onset of electoral indigestion came late last week, after Walker clarified his position on the topic of abortion to Alaska Dispatch News reporter Richard Mauer. Specifically, how he would react as governor should a bill pertaining to abortion reach his desk.

After initially offering the promise that he would veto any legislation weakening access to abortion, Walker stepped back. “That’s further than I wanted to go,” Walker told Mauer. “I did something poorly and I went further than I was comfortable with.”

“Shame on Bill Walker. He can’t lead Alaska effectively if he thinks Alaskan women will tolerate government limiting their access to health care,” one commenter opined. “Pretty clear with this announcement that we have no idea what principles Bill Walker stands for. ”

Dozens of facebook threads and tweets echoed the sentiment. But the reaction — immediately translating Walker’s clarification to mean he will serve, if elected, as an anti-abortion crusader in the executive branch — is presumptuous.

On the other side of the token, the notion that Walker can serve a full term or more without being embroiled in debates over social issues (which he has indicated is his intention) is foolhardy.

While many state legislative seats are in play this election, it is highly doubtful that Democrats will ride a wave from a super minority to a majority. Especially during a midterm election many expect to benefit the GOP across the country.  The most realistic hope is to attain the needed seats to warrant a new bipartisan coalition. That would seem cohesive with Walker’s bipartisan ticket, should he defeat Parnell. But there’s a good chance that the Republican majorities will remain intact. And when Republicans are in control of state legislatures, they pass bills that deal with social issues. Alaska serves as a prime example.

 

Senate Bill 49. 

Most recently, efforts in Juneau have centered around redefining what constitutes a “medically necessary” abortion, eligible to be paid for through Medicaid reimbursements. State Senator John Coghill (R-North Pole) introduced Senate Bill 49 in 2013, which sought to strip doctors’ ability to determine whether or not an abortion is medically necessary, instead listing 22 specific physical conditions.

Image courtesy of Gavel Alaska, 360North.org.

The first year, the bill stalled in the House after Democrats successfully tacked on an amendment that would allow the state to participate in a federal program “providing family planning services, health screenings examinations, and related services.” After the session ended, the Parnell administration adopted most of the legislation’s tenets into Department of Health and Social Services (DHSS) policy. Added, however, was one additional provision recognizing as medically necessary “a psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.”

When the legislature gaveled back in this year, Coghill returned his attention to SB49. This time, it would pass, gutting both the Democrats’ family planning amendment and the Parnell administration’s concession to permit mental health issues. Parnell signed it into law in April. Three months later, Alaska Superior Court Judge John Suddock temporarily blocked implementation of the law after it was challenged by Planned Parenthood of the Great Northwest, stating the lawsuit raised “substantive issues” regarding its constitutionality.

Last week, Amanda Coyne pointed out Walker’s record on abortion rights, highlighting his responses to a 2010 candidate questionnaire from the social conservative Alaska Family Action group. Walker indicated his support for defining “Medically Necessary Abortions.” However, no specific legislation as to how to define medically necessary abortions was listed in the questionnaire, and there were no proposals on the topic entertained by the legislature that year. Thus it’s premature to infer that Walker would have signed off on SB49 or comparable bills he might face in the future as governor.

Of importance in Mauer’s ADN article is a quote from Walker:

[I]f a bill passed the Legislature anyway, like recent efforts to restrict state-paid abortions for low-income Alaskans, he would consider signing it, he said. First, though, he would consult his attorney general on its constitutionality and get the positions of his lieutenant governor and advocates on both sides.

“I can’t guarantee how I would handle any particular bill, but I can guarantee a process,” Walker said.

That process — or lack thereof — is what was so controversial about the passage of SB49. Missing was any review by the Department of Law. Coghill enlisted outside counsel — Brena, Bell, & Clarkson, a private law firm based in Anchorage that specializes in administrative law, civil litigation, commercial transactions, and estate planning — to offer a legal opinion. The firm supported the legislation and found no Constitutional issues. But this was not corroborated in any official capacity by the Department of Law.

A February 25, 2014 House Finance Committee offered the only comment, when Rep. Les Gara (D-Anchorage) asked Chief Assistant Attorney General Stacy Kraly: “[W]ould you agree that the bill that we have before us establishes a different standard than the Alaska Supreme Court standard that was adopted in the last Supreme Court decision on this issue?” He added, “Are you able to determine whether the bill is narrower than the Supreme Court opinion?”

Kraly responded:

At this point, through the Chair, Representative Gara, the Supreme Court did articulate a list of conditions that were testified to in the underlying Superior Court case that was subject to the appeal and within that list they did provide a reference to bipolar disorder. However, that list is not considered and has not been identified as a definition of medical necessity, and so I don’t know whether or not I would be able to concede your point as you’ve crafted it.

And that was it. The only insight offered from the Department of Law was, effectively, an “I’m not sure.” Which was more than enough to appease 23 House Republicans, 12 Senate Republicans, one Senate Democrat (who caucuses with the majority), and most importantly Gov. Parnell.

Walker has not indicated whether or not he would have signed SB49 — still being weighed by the court — into law. His campaign did not respond to inquiry. But his comments to Mauer suggest that he would have at least sought a legal opinion from the state, and he would consult his lieutenant governor, who in this case would be Byron Mallott, a pro-choice Democrat.

 

Part of the Job.

Walker’s other oft repeated refrain, that he wants to concentrate on fiscal matters and steer away from social issues like abortion and equality jurisprudence and law, is frankly silly. Governors are not elected to solely deal with fiscal matters.

Photo by Craig Tuten.

If the court invalidates SB49 and the political makeup of the legislature remains largely intact, the matter will likely be on his desk in the blink of an eye. Additionally, the Lower 48 offers a full menu of diverse options which further restrict access to abortion. Kansas recognizes life at conception. Twenty-three states require mandatory ultrasounds (Alaska tried to join them in 2012 but failed). Sixteen states allow rapists to sue for custody and/or visitation rights.

Meanwhile, Alaska’s ban on marriage equality is currently being challenged in the U.S. District Court for the District of Alaska. Whoever is the governor subsequent to November’s election will be in charge when that decision is handed down. Should the court strike down the state’s constitutional amendment defining marriage between one man and one woman, the governor will have to take an active role in overseeing the extensive web of provisions which would have to be altered to bring statute in line with such a decision. The executive will also have to choose whether to appeal to the U.S. Supreme Court. Alaska is currently signed on to Colorado’s brief asking the highest court to review Oklahoma’s Bishop v. Smith and Virginia’s Rainey v. Bostic.

Walker, while campaigning for governor in 2010, stated his support of Alaska’s current constitutional definition of marriage, opposed adding gender identity and sexual orientation to the state’s anti-discrimination laws, and supported limiting marriage benefits to opposite-sex partners of public employees.

Simply put, dealing with social issues is part of the job. Mallott’s presence on the ticket may influence how Walker wields the broad powers of the executive in Alaska, but that broad power also includes defining how much power Mallott possesses as lieutenant governor.

Mallott’s support of issues that Walker does not support does not constitute an equilibrium.

Any definitive positions will cost Walker support from one end of the spectrum or the other, but if he’s depending on walking a tight rope of ambiguity in the lead up to November, he’s in line for a very rude awakening.