By: James Brooks, Alaska Beacon
For years, politically conservative members of the Alaska Legislature have attempted to restrict state-paid abortion care via language in the annual state budget.
That maneuver and similar actions could be ruled unconstitutional by the Alaska Supreme Court, which on Wednesday heard oral arguments in a lawsuit that may determine the limits of the Alaska Constitution’s confinement clause, which requires that budget bills be limited to spending and not include policy changes.
At issue in the case is a budgetary maneuver twice adopted by the Legislature in an attempt to partially de-fund a contract for a Washington, D.C.-based law firm that Gov. Mike Dunleavy’s administration used to defend his controversial restructuring of public employee unions’ dues payments.
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If you’re interested in the technical details of this case, the Alaska Legislature’s opening brief can be found here. The state’s response can be found here, and the Legislature’s reply brief is here.
Legislators said the contract, at more than $600,000, was too expensive, and in 2020 and 2021, they carved the budget for the Alaska Department of Law into two segments in an attempt to limit the contract.
Two of the governor’s attorneys general said they believed the Legislature was actually targeting the union dues plan, and its actions thus represented an unconstitutional infringement of the executive branch’s power.
Dunleavy vetoed the contract-specific language, technically eliminating all funding for the defense, and his administration kept on spending.
The Legislature’s auditor concluded in 2023 that the Dunleavy administration likely violated state law and the Alaska Constitution by continuing to spend money that had been eliminated from the budget.
Lawmakers sued in January 2024.
By that time, the Alaska Supreme Court had ruled that the union-dues changes had been enacted illegally. Four days after the Legislature filed its lawsuit, the U.S. Supreme Court said it would not hear an appeal requested by the administration, an act that leaves the state supreme court’s ruling in place.
In 2025, over the Legislature’s objections, Anchorage District Court judge Dani Crosby ruled that lawmakers’ lawsuit was moot because the money had already been spent, and she dismissed it.
Legislators appealed to the Supreme Court, arguing that there is a public interest in having the issue resolved, because it is likely to return again.
Attorney Kevin Cuddy, representing the Legislature, noted that last year — as in past years — the Alaska Legislature authorized a budget that included a provision stating that the Alaska Department of Health may not spend Medicaid money on certain abortions.
“That idea of no funding for this, some funding for that, these conditions are a regular feature of the budgeting process,” he said in Wednesday’s oral argument, arguing that the issue is not moot.
Deputy Solicitor General Jessie Alloway represented the state in Wednesday’s hearing and said the abortion issue is an example of why the court should decline to take up the Legislature’s arguments.
“This is exactly why the court should say this is moot and not take a more abstract view … because there is an unlimited number of hypotheticals that we could come up with that would be problematic,” she said.
If the court does overrule Crosby, both sides asked the justices to give them a firm answer rather than having Crosby take up the issue again.
The justices would then have to decide whether legislators overreached by attempting to restrict the executive branch, whether the executive branch overreached by continuing to spend, and where exactly the line rests between legislative and executive power.
“That’s what we keep coming back to: Who gets to decide this, whether these contracts are necessary?” asked Justice Aimee Oravec.
One prior Supreme Court case discussed Wednesday may offer some clues. In 2001, the court ruled on a legislative lawsuit against then-Gov. Tony Knowles over a series of budget vetoes.
One of those vetoes involved a dispute over bed space bought by the state prison system in private facilities. Legislators wrote in the budget that the space had to be bought from private contractors.
The supreme court upheld that language in its ruling.
“Conditions are permissible, as this court held in the Knowles case,” said Cuddy, the Legislature’s attorney, “including saying what types of services, public versus private, or private versus public, the money can be spent upon.”
But Alloway, arguing for the state, said legislators were attempting to define purchases that had already happened. That’s different from Knowles.
“What was happening was the (attorney general) had already retained outside counsel via his statutory authority. The Legislature knew about it, and then the appropriation targeted that decision by eliminating the amount the AG could spend on the contract,” she said.
During Wednesday’s argument, chief justice Susan Carney was absent. Staff for the court said she was recovering from surgery and out on medical leave.
Justice Dario Borghesan, a former Department of Law attorney, recused himself from the case, leaving three justices, all Dunleavy appointees, for Wednesday’s hearing. Justice Jennifer Henderson, presiding over oral arguments, said Carney may be involved in deliberations before a final decision is published at a later date.
