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State v Planned Parenthood of Alaska et al. (11/16/2001) sp-5499
State v Planned Parenthood of Alaska et al. (11/16/2001) sp-5499
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-8580
Appellant, )
) Superior Court No.
v. ) 3AN-97-6014 CI
)
PLANNED PARENTHOOD OF ALASKA, ) O P I N I O N
JAN WHITEFIELD, M.D., and )
ROBERT KLEM, M.D., ) [No. 5499 - November 16, 2001]
)
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sen K. Tan, Judge.
Appearances: W. H. Hawley, Jr., Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, James P. Doogan, Jr., Assistant District Attorney,
Fairbanks, Cynthia M. Cooper, Deputy Attorney General, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
Joyce E. Bamberger and Jim Kentch, Cooperating Attorneys, Alaska
Civil Liberties Union Foundation, Anchorage, and Janet L. Crepps,
Center for Reproductive Law & Policy, Simpsonville, South Carolina,
for Appellees. Les Gara, Friedman, Rubin & White, Anchorage, for
Amicus Curiae Alaska Chapter of the American Academy of Pediatrics.
Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, for
Amicus Curiae Concerned Alaska Parents, Inc. Paul Benjamin Linton,
Northbrook, Illinois, and Jeffrey D. Troutt, Juneau, for Amicus
Curiae Alaska State Legislature.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
MATTHEWS, Chief Justice, with whom CARPENETI,
Justice, joins, dissenting.
I. INTRODUCTION
The state appeals a summary judgment order declaring
void, as contrary to the Alaska Constitution's equal protection
guarantee, a statute requiring minors to obtain parental consent or
judicial authorization before obtaining an abortion. We affirm the
superior court's decision on preliminary issues -- whether
plaintiffs have standing, whether they may properly claim that the
statute is unconstitutional on its face, whether the Alaska
Constitution's guarantee of privacy is self executing, and whether
that guarantee extends to minors -- but conclude that the court
erred in declining to hear evidence on and to decide the central
questions whether the state has a compelling interest in enforcing
the parental consent statute and whether the statute is properly
tailored to promote the state's interest. We thus reverse the
summary judgment order and remand for an evidentiary hearing.
II. FACTS AND PROCEEDINGS
In 1997 the Alaska Legislature passed S.B. 24, an act
that prohibits doctors from performing abortions on unemancipated
women under seventeen years of age without parental consent or
judicial authorization [Fn. 1] and that subjects doctors to
criminal penalties for knowingly performing abortions on minors
without the required consent or authorization. [Fn. 2] The act's
consent requirement can be met by written consent from a parent or
guardian or by a court order bypassing consent. [Fn. 3] To obtain
a judicial bypass order, a minor must file a complaint in superior
court and establish by clear and convincing evidence either that
she is "sufficiently mature and well enough informed to decide
intelligently whether to have an abortion without the consent of a
parent, guardian, or custodian"or that parental consent would not
be in her best interests. [Fn. 4] The superior court must appoint
counsel for minors who are unrepresented, [Fn. 5] and judicial
bypass proceedings are confidential. [Fn. 6] If the court fails to
hear a complaint within five days after filing, the court's
inaction constructively authorizes the minor to consent for
herself. [Fn. 7]
Soon after the legislature enacted this parental consent
or judicial authorization requirement, Planned Parenthood of Alaska
and Drs. Jan Whitefield and Robert Klem filed an action in superior
court, claiming that the act is void because it violates the Alaska
Constitution's guarantees of privacy, equal protection, freedom
from discrimination based on sex, and due process. They later
moved for summary judgment. The superior court granted their
motion, concluding that the act violates equal protection by
requiring consent or judicial authorization for pregnant minors who
choose abortion, but not for those who choose to give birth.
Before reaching the equal protection issue, however, the
court addressed the issue of a minor's right to privacy. Relying
on the Alaska Constitution's express guarantee of privacy, [Fn. 8]
this court's case law interpreting that right, and relevant cases
from states interpreting similar constitutional provisions, the
superior court determined that privacy is a fundamental individual
right, that this right encompasses a pregnant woman's reproductive
choices, and that it applies to minors and adults co-extensively,
regardless of age. While recognizing obvious distinctions between
a minor's and an adult's capacity to make mature reproductive
choices, the court reasoned that such differences do not dilute the
fundamental quality of a minor's constitutional right to privacy,
but relate instead to the state's countervailing interest in
controlling the circumstances under which minors can exercise their
privacy right without supervision.
Having determined that the Alaska Constitution's privacy
clause protects minors and adults alike, the superior court decided
that the act requiring parental consent or judicial authorization
could withstand constitutional scrutiny on privacy grounds only if
the state established that it had a compelling interest in
requiring consent and that no less restrictive means of achieving
that interest existed. The court seems to have recognized that
ruling summarily on these points might be problematic, noting that
"it would be necessary to examine the legislative statements of
purpose and findings of fact as well as to reach findings of fact
based upon the evidence produced in this matter."
But the court found no need to resolve these issues,
ruling instead that plaintiffs were entitled to summary judgment on
an alternative constitutional ground. Without deciding whether the
state had a compelling interest in requiring pregnant minors to
obtain parental consent or judicial authorization to obtain an
abortion, the court concluded that the act violated the Alaska
Constitution's equal protection clause because none of the act's
stated purposes and supporting findings established a compelling
state interest in applying the consent or authorization requirement
to pregnant minors who choose to have abortions, but not to those
who choose to give birth.
The state appeals.
III. DISCUSSION
A. Standard of Review
We will affirm a grant of summary judgment only when,
construing all disputed inferences of fact in favor of the non-
moving party, we find that there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of
law. [Fn. 9] In deciding questions of law, "[o]ur duty is to adopt
the rule of law that is most persuasive in light of precedent,
reason, and policy."[Fn. 10]
B. Standing
The state contends that Planned Parenthood and Drs.
Whitefield and Klem lack standing to pursue this action. But we
have long interpreted Alaska's standing requirement leniently in
order to facilitate access to the courts. [Fn. 11] "The basic idea
. . . is that an identifiable trifle is enough for standing to
fight out a question of principle."[Fn. 12] Here, Planned
Parenthood of Alaska has a strong and direct interest in the
challenged statute; [Fn. 13] the injuries it alleges are more than
trifling; and no one disputes that its claims raise important
questions of principle. Moreover, in other Alaska abortion
litigation against Planned Parenthood of Alaska, the state has
failed to question the organization's standing to challenge
abortion legislation. [Fn. 14] We find no sound reason to deny
Planned Parenthood standing here.
Drs. Whitefield and Klem also have a direct interest in
the disputed statute: both physicians allege that they regularly
provide abortion services to women in Alaska, including minors.
The state nonetheless contends that both doctors lack standing
because neither faces a specific threat of prosecution or alleges
past prosecutions. But the doctors need not allege such drastic
harm to meet Alaska's lenient test of standing. The parental
consent or judicial authorization act would require both doctors to
change their current practices and would expose them to civil and
criminal liability if they failed to comply; [Fn. 15] this suffices
to establish more than a trifling or speculative injury. Moreover,
Drs. Whitefield and Klem derive standing from their patients. That
physicians have standing to challenge abortion laws on behalf of
prospective patients seems universally settled; indeed, the United
States Supreme Court has emphasized that physicians are "uniquely
qualified"to litigate the constitutionality of state action
interfering with a woman's decision to terminate a pregnancy. [Fn.
16]
Accordingly, we conclude that Planned Parenthood and Drs.
Whitefield and Klem have standing to challenge the parental consent
act's requirements.
C. Facial Challenge
The state next asserts that plaintiffs' facial
constitutional challenge must fail because they have failed to show
that the parental consent or judicial authorization requirement
could have no constitutional applications. In advancing this
assertion, the state relies on Javed v. State, Department of Public
Safety, [Fn. 17] where we quoted the Supreme Court's decision in
United States v. Salerno [Fn. 18] for the proposition that "[a]
statute is facially unconstitutional if 'no set of circumstances
exists under which the Act would be valid.'"[Fn. 19] But we did
not invoke the Salerno rule in Javed as a justification for
avoiding constitutional review; instead, we relied on the rule for
the distinctly narrower purpose of severing a limited portion of a
statute, which we found unconstitutional, from the balance of the
statute, which we found valid. [Fn. 20]
And in any event, Salerno's "no set of circumstances"
language is not a rigid requirement. [Fn. 21] In reviewing
challenges to abortion-related statutes, the United States Supreme
Court has shown considerable flexibility in allowing litigants to
raise claims alleging facial invalidity. For example, in Planned
Parenthood of Southeastern Pennsylvania v. Casey, [Fn. 22] the
Court invalidated a spousal notification statute even though
statistics suggested that ninety-five percent of women seeking
abortions would notify their husbands regardless of the
requirement. [Fn. 23] In eschewing a rigid application of Salerno,
the Court explained: "The proper focus of constitutional inquiry
is the group for whom the law is a restriction, not the group for
whom the law is irrelevant."[Fn. 24] Applying Casey's reasoning
here, we conclude that Salerno poses no bar to plaintiffs' facial
challenge of Alaska's parental consent or judicial authorization
requirement.
D. Right to Privacy
1. Legislative implementation of Alaska's right to
privacy
Article I, section 22 of the Alaska Constitution
provides, "The right of the people to privacy is recognized and
shall not be infringed. The legislature shall implement this
section." Focusing on the second sentence of this provision, the
state contends that the right to privacy is not self executing and
can be given effect only through legislation. The state recognizes
that its proposed reading of article I, section 22, conflicts with
our recent decision in Valley Hospital Association, Inc. v. Mat-Su
Coalition for Choice, [Fn. 25] but the state urges us to overrule
Valley Hospital.
But accepting the state's argument would require us to do
much more than overrule Valley Hospital. Soon after article I,
section 22 was added to our constitution in 1972, we recognized
that it protected Alaska citizens' "basic right to privacy in their
homes."[Fn. 26] Since then, apart from applying the privacy
clause in Valley Hospital to a woman's right to abort a pregnancy,
we have extended the clause's protection "to commercial or business
premises"; [Fn. 27] we have repeatedly ruled that it broadens the
constitutional right against unreasonable searches and seizures
[Fn. 28] and amplifies the privilege against self incrimination;
[Fn. 29] we have held that it bars the state from surreptitiously
recording conversations under certain circumstances; [Fn. 30] we
have concluded that it safeguards private medical records, [Fn. 31]
limits the permissible scope of public disclosure requirements,
[Fn. 32] and protects communications involving "sensitive personal
information"[Fn. 33] or "'a person's more intimate concerns'";
[Fn. 34] and we have invoked it as a basis for formulating broad
standards to shield the privacy interests of state employees and
private citizens. [Fn. 35]
The state would thus have us nullify almost three decades
of case law enforcing Alaska's constitutional guarantee of privacy.
For the state reads this constitutional language, now almost thirty
years old, as having virtually no meaning yet; and in the state's
view, the judiciary is hamstrung from making anything of it. To
adopt this position would necessarily reduce the privacy clause
from a basic guarantee of personal freedom to a mere legislative
option -- a possible protection that each legislature would be free
to adopt, alter, or even abrogate.
The state bases its proposed interpretation on a point of
legislative history that arose obliquely in Valley Hospital. [Fn.
36] The privacy clause originated in 1972 as Senate Joint
Resolution No. 68. [Fn. 37] As amended by the Senate and
transmitted to the House, SJR 68 read:
SECTION 22. RIGHT OF PRIVACY. The right
of the people to privacy is recognized and shall not be violated.
The legislature shall provide for the prosecution and punishment of
public officials and private parties who act in violation of this
section, and shall provide civil remedies to supplement common law
remedies to redress and prevent such violations. The legislature
shall provide for the protection and security of information
available to the State to the extent necessary to protect the
rights of the individual recognized in this section and shall
further provide for the protection and security of information
gathered under this section by the State.[ [Fn. 38]]
According to the minutes of the House Judiciary
Committee, during a committee hearing on this provision
[committee chairman Moran] wondered about the
phrase "shall not be violated." What really is the right to
privacy? This needs to be defined. [Representative] Barber moved
to delete [the] phrase. . . . Moran said that he would like to see
the people have the right to privacy but would like it phrased like
other sections of the constitution. [Representative] Banfield
moved to delete the second sentence. There was no objection. Art
[Peterson, committee counsel,] said we could say "shall implement
this section"or "shall provide for the implementation of this
section"and leave out the details. This would be stating
principles generally . . . which allows for easier administration.
Barber felt that we were leaving out the penalty section. Moran
said this would be covered in the "implementation."
[Representative] Rose agreed that leaving the entire first sentence
with the broad general language of the second sentence providing
for legislative implementation would be entirely adequate. It was
decided to change "violate"to "infringe."[ [Fn. 39]]
After holding this discussion, the committee decided to prepare a
committee substitute, [Fn. 40] which was passed by the House and
ultimately became article I, section 22. [Fn. 41]
In Valley Hospital, we considered these committee minutes
in connection with Valley Hospital's argument that article I,
section 22, was originally meant to extend only to "informational"
privacy. [Fn. 42] We described the minutes as irrelevant on that
issue, characterizing them as "largely a debate of grammar and
style."[Fn. 43] But the state now offers the minutes for a new
proposition: it argues that the minutes establish that article I,
section 22, is not a self-executing provision. Although we agree
that the minutes are relevant on the issue, we believe that they
undermine the state's argument against self execution.
For in our view, the minutes reflect that, because it was
unable to agree on a comprehensive definition of privacy, the House
Judiciary Committee simply opted to "leave out the details,"
deciding instead to treat the new constitutional provision "like
other sections of the constitution"by "stating [its] principles
generally." This course of action, the committee believed, would
ensure that "the people have the right to privacy,"while at the
same time providing for "easier administration"through legislative
"implementation"of the omitted procedural details -- details such
as Representative Barber's suggested penalty section. [Fn. 44]
When understood in this way, the constitution's mandate
for implementation does not make legislative approval or execution
necessary for the privacy clause's core guarantee to take root and
have meaning; instead, the mandate simply signals the need for
legislative guidance in the provision's administration and
application.
Indeed, we recognized as much in Luedtke v. Nabors Alaska
Drilling, Inc., [Fn. 45] where we were urged to extend the privacy
clause's requirements to private action. [Fn. 46] Addressing this
argument, we
observe[d] initially that [article I, section
22], powerful as a constitutional statement of citizens' rights,
contains no guidelines for its application. Nor does it appear
that the legislature has exercised its power to apply the
provision; the parties did not bring to our attention any statutes
which "implement this section."[ [Fn. 47]]
Yet we went on to take note of "traditional
constitutional analysis holding that the constitution serves as a
check on the power of government: 'That all lawful power derives
from the people and must be held in check to preserve their freedom
is the oldest and most central tenet of American
constitutionalism.'"[Fn. 48] And after reviewing Alaska case law,
we concluded: "[T]he primary purpose of these constitutional
provisions is the protection of 'personal privacy and dignity
against unwarranted intrusions by the State.'"[Fn. 49] We
therefore declined to extend article I, section 22's prohibitions
to actions by private persons, holding that, in the absence of
legislative history or an express proscription of private action,
the clause must be limited to serving its core purpose as a
"restraining force against the abuse of governmental power."[Fn.
50]
By refusing to extend the privacy clause beyond its core
purpose of restraining governmental power, Luedtke necessarily
recognized article I, section 22, to be fully effective as a
restraint on governmental action, without legislative
implementation. [Fn. 51]
Moreover, our decision in Luedtke finds added support in
an earlier decision construing a constitutional provision with
implementation language identical to the language of article I,
section 22. Article I, section 3, of the Alaska Constitution
states that "[n]o person is to be denied the enjoyment of any civil
or political right because of race, color, creed, sex, or national
origin." It further provides, as does the privacy clause, that
"[t]he legislature shall implement this section." In United States
Jaycees v. Richardet, [Fn. 52] we declined to extend article I,
section 3's substantive proscriptions to private action, declaring
the provision to be effective only as a restraint on state action.
[Fn. 53] But in recognizing that this provision constrained state
action, we found no need to search for legislative implementation.
[Fn. 54] Like Luedtke, Richardet recognized that, despite language
providing for legislative implementation, a provision of the Alaska
Constitution that grants a personal right directly to Alaska's
people is self executing with respect to its core constitutional
purpose. [Fn. 55]
In summary, then, the legislative history of our privacy
clause and three decades of cases interpreting the provision firmly
establish that its basic guarantee -- the people's right to privacy
from unwarranted governmental intrusion -- became fully effective
upon the provision's adoption, without need for further
implementation. With or without legislative action, this guarantee
has the usual attributes of a constitutional provision: its broad
contours and particular applications fall within the judiciary's
province and are subject to definition, interpretation, and
refinement through the traditional course of adjudication, case by
case.
2. The rights of minors to privacy
Citing federal decisions upholding parental consent
statutes under the United States Constitution [Fn. 56] and Alaska
cases upholding the state's broad authority to protect children
from harm, [Fn. 57] the state argues that even if the Alaska
Constitution creates a self-executing right to reproductive
privacy, that right should not extend to minors.
The superior court approached this issue from a somewhat
different perspective, ruling that the Alaska Constitution gives
pregnant minors the same basic right to reproductive privacy that
it gives pregnant adults. The court certainly recognized that
minors need to be protected from immature actions and that the
state has an interest in ensuring this protection. It nonetheless
reasoned that these considerations bear less on the existence and
quality of a minor's right to privacy than they do on the
legitimacy and scope of the state's competing interest in
restricting minors from exercising that right without the consent
of their parents.
Although the state sharply criticizes it, the superior
court's approach has much in common with the approach favored by
the state; and to the extent that the two approaches differ, the
court's more faithfully reflects the Alaska Constitution's language
and values.
The state's approach posits a constitutional privacy
right that is limited to adults and does not extend to minors,
whereas the superior court's approach posits a right that extends
fully to all Alaskans but can be limited for compelling reasons.
Assuming that the state has a compelling interest in requiring
minors to obtain parental consent or judicial authorization -- as
the state insists it does -- both approaches would achieve the same
result. They would differ only if the state lacked a compelling
interest to require parental consent or judicial authorization. In
that event, because the state acknowledges no right of privacy
extending to minors, its approach implies that the state would be
free to restrict privacy for non-compelling reasons or,
potentially, for no reason at all. By contrast, under the superior
court's approach, because the privacy right extends to all
Alaskans, the state would be barred from restricting a minor's
privacy unless it had a compelling reason to do so.
Precedent, reason, and policy recommend the superior
court's approach. Our decisions have noted the "established
premise that children are possessed of fundamental rights under the
Alaska constitution."[Fn. 58] In Breese v. Smith, for example, we
held that students attending public schools have "a constitutional
right to wear their hair in accordance with their personal tastes."
[Fn. 59] Although Breese dealt with the Alaska Constitution's
guarantee of liberty [Fn. 60] rather than its privacy clause, which
had yet to be ratified, our opinion recognized children to be
people having personal rights and went on to inquire whether the
state had sufficient reason to restrict those rights. [Fn. 61]
Since deciding Breese, we have taken the same approach in cases
upholding state action that restricted the privacy of minors:
"While . . . juveniles have certain rights to privacy and to
express their own autonomy, we have recognized that the State's
interest in the well-being of its children 'may justify legislation
that could not properly be applied to adults.'"[Fn. 62]
Notably, supreme courts in three other states whose
constitutions explicitly guarantee privacy -- New Jersey,
California, and Florida -- have followed the same approach in
considering constitutional challenges to statutes requiring
parental consent or judicial authorization to obtain an abortion.
These courts have read their state constitutions to give minors the
same fundamental right to reproductive privacy as adults and have
then inquired whether the government had compelling reason to
restrict minors' privacy rights. [Fn. 63]
The state asks us to distinguish these cases, noting that
Florida's constitution guarantees privacy to "every natural person"
[Fn. 64] and California's to "[a]ll people,"[Fn. 65] whereas
Alaska's constitution simply extends the right to "the people."
[Fn. 66] But the state offers no basis for interpreting our
constitution's guarantee of privacy to "the people"as a grant only
to "some people,"or only to "people seventeen years of age or
older."[Fn. 67] And absent textual or contextual indications of
a restricted meaning, we see no reason to find our constitution's
grant of privacy to "the people"narrower than California's grant
of privacy to "[a]ll people."
Nor does the subject matter at issue here -- the privacy
rights of minors with respect to reproductive choice -- afford any
basis for restricting the manner in which our constitution attaches
to different classes of "people." The "uniquely personal"
physical, psychological, and economic implications of the abortion
decision that we described in Valley Hospital [Fn. 68] are in no
way peculiar to adult women. Deciding whether to terminate a
pregnancy is at least as difficult, and the consequences of such
decisions are at least as profound, for minors as for adults:
[T]he potentially severe detriment facing a
pregnant woman is not mitigated by her minority. Indeed,
considering her probable education, employment skills, financial
resources, and emotional maturity, unwanted motherhood may be
exceptionally burdensome for a minor. . . . [T]here are few
situations in which denying a minor the right to make an important
decision will have consequences so grave and indelible.[ [Fn. 69]]
We thus find no less reason to recognize here than in other
settings that "[c]onstitutional rights do not mature and come into
being magically only when one attains the state-defined age of
majority."[Fn. 70]
Of course this does not mean that evidence of the
"peculiar vulnerability of children [and] their inability to make
critical decisions in an informed, mature manner"[Fn. 71] has no
place in determining whether the parental consent or judicial
authorization act is constitutional. To the contrary, we have long
emphasized the state's special interest in protecting the health
and welfare of children. Yet we have not, in so doing, exempted
minors from constitutional protection. [Fn. 72] Evidence tending
to show that pregnant minors are vulnerable has no direct bearing
on whether minors are "people"in the constitutional sense:
[A] statute's relationship to minors properly
is employed in the constitutional calculus in determining whether
an asserted state purpose or interest is "compelling."Because the
statute's impact on minors is taken into account in assessing the
importance of the state interest ostensibly served by the
infringement . . . it is not appropriate additionally to lower the
applicable constitutional standard under which the statute is to be
evaluated simply because the privacy interests at stake are those
of minors.[ [Fn. 73]]
To justify the parental consent or judicial authorization
act's restriction of a minor's right to terminate a pregnancy,
then, the state must establish a compelling interest in restricting
the minor's right to privacy; it may not simply assert that
Alaska's constitution extends a diluted form of privacy right -- or
no right at all -- to minors.
Accordingly, we hold that the superior court correctly
decided to build its privacy analysis on the premise that minors
and adults start from the same constitutional footing. It likewise
correctly decided that the state can constrain a minor's privacy
right only when necessary to further a compelling state interest
and only if no less restrictive means exist to advance that
interest. [Fn. 74]
E. Equal Protection
1. The issue presented
As already mentioned, the superior court stopped short of
considering whether the interests claimed by the state to justify
the parental consent or judicial authorization requirement --
protecting minors, families, and parental rights -- were
sufficiently compelling to justify the act's restrictions on the
privacy rights of minors. The court found no need to decide this
issue because it concluded that summary judgment was appropriate on
the alternative ground that the act violated the Alaska
Constitution's guarantee of equal protection. [Fn. 75] Thus, for
purposes of its equal protection analysis, the court effectively
assumed that the state does have a compelling governmental interest
in requiring pregnant minors to obtain parental consent or judicial
authorization for an abortion. The issue presented for our
consideration, then, is whether, despite this assumed compelling
governmental interest, equal protection bars the state from
enforcing the parental consent or judicial authorization act's
requirements because they impermissibly discriminate among
different classes of similarly situated minors. [Fn. 76]
2. Alaska's equal protection standard
In State v. Erickson, [Fn. 77] we adopted as a measure of
Alaska's equal protection provision a flexible, three-step sliding-
scale test. [Fn. 78] Under this test, we initially establish the
nature of the right allegedly infringed by state action, increasing
the state's burden to justify the action as the right it affects
grows more fundamental: at the low end of the sliding scale the
state needs only to show that it has a legitimate purpose; but at
the high end -- when its action directly infringes a fundamental
right -- the state must prove a compelling governmental interest.
[Fn. 79] We next examine the importance of the state purpose
served by the challenged action in order to determine whether it
meets the requisite standard. [Fn. 80] We last consider the
particular means that the state selects to further its purpose; a
showing of substantial relationship between means and ends will
suffice at the low end of the scale, but at the high end the state
must demonstrate that no less restrictive alternative exists to
accomplish its purpose. [Fn. 81]
3. The trial court's equal protection ruling
The superior court began its equal protection analysis by
briefly reviewing this three-step test. The court noted that
"[t]he first two steps of the equal protection analysis are
essentially identical to the two steps of the constitutional right
to privacy analysis." Referring to its earlier discussion of
privacy, it found that "the right involved is the fundamental right
to privacy." It went on to say that "[t]he question of compelling
state interest supporting the legislation has also been examined."
The court thus concluded that "[t]he difference between the rights
of equal protection and rights of privacy resides in the third
prong of the equal protection test."
Turning to the third step of the equal protection
analysis, the court initially observed that the parental consent or
judicial authorization act creates two categories of similarly
situated pregnant minors: "those who elect to have abortions"and
"those who elect to carry the fetus to term." Next, the court
pointed out that the act applies only to the first category of
minors, exempting the second. [Fn. 82] The court then briefly
reviewed the parental consent or judicial authorization act's
statement of purpose and findings of fact. This review led the
court to find that "[n]one of the enunciated legislative interests
or findings show that the different treatment of the two classes
created by the Act relates to a compelling governmental objective."
[Fn. 83] Citing recent Florida and California decisions that
reached similar conclusions, [Fn. 84] the court declared that the
act violates equal protection because "no compelling state interest
has been established to justify the classification of minors based
upon their reproductive choices."
4. Discussion
The superior court viewed the act as creating two
similarly situated classes: pregnant minors who choose to abort and
those who choose to give birth. But a broader view of the equal
protection issue would seem more appropriate. The act's express
terms create several potentially significant classes of similarly
situated minors. For example, while AS 18.16.010(a)(3) requires
parental consent or judicial authorization to be given for any
"unmarried, unemancipated woman under 17 years of age"who chooses
to abort a pregnancy, AS 25.20.025(a)(1) generally authorizes all
minors who live on their own -- regardless of whether they are
formally emancipated -- to consent to any form of medical or dental
treatment except abortion. [Fn. 85] And AS 25.20.025(a)(4) gives all
minors -- even those who are unemancipated and living with a parent
or guardian -- authority to consent to a broad range of medical
services and treatments associated with sexual activity except
abortion, including "diagnosis, prevention or treatment of
pregnancy, and . . . diagnosis and treatment of venereal disease."
Moreover, the act may create additional de facto classifications
that would prove constitutionally significant. [Fn. 86] In our view,
all these differences fall within the ambit of the equal protection
question raised in this case and deserve careful scrutiny.
In challenging the superior court's ruling, the state
contends that the court overlooked abundant evidence of potentially
compelling state interests in requiring parental consent or
judicial authorization to abortion. Emphasizing that it was
prepared to prove that the act serves these interests, the state
complains that the court refused to hear its evidence. The state
points out that the superior court's summary judgment ruling should
have drawn all inferences in favor of the non-moving party -- the
state. [Fn. 87] According to the state, the failure to do so
requires a reversal. We agree that it was error to declare S.B. 24
unconstitutional without allowing an evidentiary hearing on the
issue of whether the act furthers compelling state interests using
the least restrictive means. [Fn. 88]
Although the disputed ruling on equal protection observed
that "[t]he question of compelling state interest supporting the
legislation ha[d] already been examined"in the court's analysis of
the right to privacy, the earlier discussion of privacy had not
resolved this issue; in concluding its privacy analysis, the court
had simply stated, "I need not reach the question whether the State
has sufficiently shown that a question of fact exists as to whether
the state had shown a compelling interest in enacting this
legislation." The court's equal protection decision thus rested
entirely on the third step of equal protection analysis and never
determined whether the state actually does have a compelling
interest in requiring parental consent or judicial authorization to
abortion or what the exact nature of that interest is. But this
approach is problematic, since Alaska's test of equal protection
inseparably links the third step of equal protection analysis
(here, whether the state had compelling reasons to require parental
consent or judicial authorization for one group of minors but not
another) to the second step (the nature and importance of the
state's interest in requiring parental consent or judicial
authorization to abortion).
In State v. Ostrosky, [Fn. 89] we described the
relationship between the second and third steps of Alaska's equal
protection test as follows:
As the level of scrutiny selected is higher on
the Erickson scale, we require that the asserted governmental
interests be relatively more compelling and that the legislation's
means-to-ends fit be correspondingly closer. On the other hand, if
relaxed scrutiny is indicated, less important governmental
objectives will suffice and a greater degree of over/or
underinclusiveness in the means-to-ends fit will be tolerated. As
a minimum, we require that the legislation be based on a legitimate
public purpose and that the classification "be reasonable, not
arbitrary, and . . . rest upon some ground of difference having a
fair and substantial relation to the object of the legislation . .
. . "[ [Fn. 90]]
As this passage makes clear, the three steps of Alaska's
sliding-scale equal protection test are progressive. The second
step varies depending on the outcome of the first. And the third
hinges on the nature of the second; as the second-stage analysis
requires "the asserted governmental interests [to] be relatively
more compelling,""the legislation's means-to-ends fit"must "be
correspondingly closer"in the third step of the analysis. [Fn. 91]
In the present case, the superior court undertook no
second-step inquiry. But if the court had inquired and had
actually identified compelling governmental interests in requiring
parental consent or judicial authorization, then the third step of
the analysis would have required the court to inquire further in
order to determine whether the parental consent or judicial
authorization act achieved those interests by means of the least
restrictive alternative. [Fn. 92] Other courts have identified
plausible, facially legitimate grounds for treating pregnant minors
who carry their children to birth differently from those who choose
abortion. [Fn. 93] And at least some of the legislative findings
made in support of Alaska's parental consent or judicial
authorization act appear to relate more specifically to a minor's
capacity to make the choice of abortion than they do to the minor's
ability to make other types of medical decisions. [Fn. 94]
We express no opinion here as to the likely force or
significance of the state's proffered evidence. Given the
fundamentality of the right to privacy and the nature of the
statutory classification at issue, we certainly recognize that
evidence presented in support of the challenged act is "deserving
of the most exacting scrutiny."[Fn. 95] A court giving close
scrutiny to the issue of compelling state interest might view the
legislature's willingness to allow minors to consent on their own
to most forms of reproduction-related medical treatment as evidence
that the state's ostensible interests are not particularly
compelling. [Fn. 96] Moreover, even if the state's interests were
actually compelling, evidence concerning experiences with consent
provisions in other jurisdictions, including information about the
difficulties faced by minors -- particularly minors in rural areas
-- in gaining access to courts and the judicial bypass procedure,
might convince the court that Alaska's act will not actually
accomplish these purposes or will not do so using the least
restrictive means. [Fn. 97] Alternatively, close scrutiny of the
evidence might lead the court to conclude that the state's
differential treatment of minors reflects nothing more than a
discriminatory intent -- an attempt to "chip away at the private
choice shielded by Roe v. Wade."[Fn. 98]
But just as we acknowledge these possibilities, we must
also acknowledge that the state and amici curiae have offered
potentially compelling evidence, not yet heard, of other possible
outcomes. At the summary judgment stage, all of this evidence, and
all reasonable inferences arising from it, should have been viewed
in the light most favorable to the state. [Fn. 99] This was not
the view adopted below, where the analysis of means-to-ends fit was
limited to the parental consent or judicial authorization act's
expressed legislative purposes and findings. Other evidence
proffered by the state apparently was not considered. And most
significantly, as already noted, there was no determination
concerning the nature and importance of the state's interest in
requiring parental consent or judicial authorization. [Fn. 100]
5. Need for a hearing
Plaintiffs nevertheless invite us to resolve the disputed
issues as matters of law on appeal, even if we conclude that the
superior court incorrectly applied the equal protection analysis.
In advancing this invitation, plaintiffs emphasize that we owe no
deference to legislative judgments "when infringement of a
constitutional right results from legislative action."[Fn. 101]
But the parties offer a large body of conflicting
evidence -- much of it scientific and technical, some of it
controversial -- whose meaning, reliability, and significance are
strongly disputed. Given the importance of the interests at stake,
we are reluctant to pass judgment on the quality of this evidence
or its substantive implications without the benefits of a full
adversarial process. [Fn. 102] In our judgment, the conflicting
positions asserted in this case are too close, too significant, and
too ensnarled in unresolved factual disputes to permit summary
adjudication. The superior court has defined the difficult balance
of interests that frames the disputed constitutional questions. On
remand, the court should apply this balance in accordance with the
views expressed in this opinion after allowing the parties an
opportunity to present evidence supporting their respective
positions. [Fn. 103]
IV. CONCLUSION
We AFFIRM in part, REVERSE in part, and REMAND for an
evidentiary hearing to determine whether the parental consent or
judicial authorization act actually furthers compelling state
interests using the least restrictive means.
MATTHEWS, Chief Justice, with whom CARPENETI, Justice, joins,
dissenting.
Children's freedoms have long been constrained in ways
that would not be permissible for adults. Constraints on children
are imposed in order to protect them, and sometimes society as a
whole, from the consequences of their immaturity. Thus children
may not exercise the fundamental right to vote. They generally may
not make contracts or smoke cigarettes or drink alcoholic beverages
or consent to sexual intercourse. Without a parent's consent they
may not become licensed drivers or get married or obtain general
medical or dental treatment. Alaska's parental consent/judicial
bypass act is in the tradition of these constraints on children's
freedoms. It requires unemancipated girls sixteens years of age
and younger who want to have an abortion to either obtain the
consent of a parent, or the approval of a judge. The act is
designed to ensure that each child makes a decision that is best
for her. As such it serves a compelling interest. It is essential
that abortion decisions made by young girls be well considered and
fully informed, for such decisions may have profound and long-
lasting consequences. I therefore believe that the act is
constitutional and would reverse the decision of the superior court
without requiring further evidentiary proceedings. [Fn. 1]
I.
Our parental consent/judicial bypass act is the product
of a series of Supreme Court opinions decided after Roe v. Wade.
[Fn. 2] A review of these opinions casts light on the reasons for
the act, and the interests it is designed to protect.
The starting point is Planned Parenthood of Central
Missouri v. Danforth. [Fn. 3] Under review in Danforth was a
Missouri statute which regulated abortions in a variety of ways.
One part of the statute required a woman to certify "that her
consent is informed and freely given and is not the result of
coercion"prior to submitting to an abortion. The Danforth
majority opinion, authored by Justice Blackmun, held that this
aspect of the statute was constitutional despite an argument that
it violated Roe v. Wade by imposing an extra layer and burden of
regulation on a woman's decision to have an abortion. Justice
Blackmun wrote:
Despite the fact that apparently no other
Missouri statute, with the exceptions referred
to in note 6, supra, requires a patient's prior written consent to
a surgical procedure, the imposition by sec. 3(2) of such a
requirement for termination of pregnancy even during the first
stage, in our view, is not in itself an unconstitutional
requirement. The decision to abort, indeed, is an important, and
often a stressful one, and it is desirable and imperative that it
be made with full knowledge of its nature and consequences. The
woman is the one primarily concerned, and her awareness of the
decision and its significance may be assured, constitutionally, by
the State to the extent of requiring her prior written consent.
We could not say that a requirement
imposed by the State that a prior written consent for any surgery
would be unconstitutional. As a consequence, we see no consti-
tutional defect in requiring it only for some types of surgery as,
for example, an intra-cardiac procedure, or where the surgical risk
is elevated above a specific mortality level, or, for that matter,
for abortions.[ [Fn. 4]]
Another aspect of the Missouri abortion statute under
review was that it required that any unmarried girl under the age
of eighteen obtain the written consent of a parent to an abortion
unless the abortion was necessary to preserve the life of the girl.
The Danforth majority held that this provision was unconstitu-
tional. [Fn. 5] But in concluding that there was no state interest
sufficiently strong to justify imposing in all cases a parental
veto power, the Court also recognized the need for effective
consent on the part of the girl.
We emphasize that our holding that sec.
3(4)
is invalid does not suggest that every minor, regardless of age or
maturity, may give effective consent for termination of her
pregnancy. See Bellotti v. Baird,. . . The fault with sec. 3(4)
is that it imposes a special-consent provision, exercisable by a
person other than the woman and her physician, as a prerequisite to
a minor's termination of her pregnancy and does so without a
sufficient justification for the restriction.[ [Fn. 6]]
Bellotti v. Baird was decided on the same day as
Danforth. [Fn. 7] Bellotti involved an ambiguous Massachusetts
statute. The defenders of the statute argued that it
prefers parental consultation and consent, but
. . . permits a mature minor capable of giving informed consent to
obtain, without undue burden, an order permitting the abortion
without parental consultation, and, further, permits even a minor
incapable of giving informed consent to obtain an order without
parental consultation where there is a showing that the abortion
would be in her best interests.[ [Fn. 8]]
Such a statute would be fundamentally different from a statute that
authorized a parental veto applicable to all minors regardless of
their maturity. The challengers to the statute, however, argued
that the statute gave parents a veto right. [Fn. 9] A unanimous
Court held that the lower federal court should have abstained from
deciding the case pending a decision by the Supreme Court of
Massachusetts as to the meaning of the statute. The Court stated:
In Planned Parenthood of Central Missouri
v. Danforth, we today struck down a statute that created a parental
veto. At the same time, however, we held that a requirement of
written consent on the part of a pregnant adult is not
unconstitutional unless it unduly burdens the right to seek an
abortion. In this case, we are concerned with a statute directed
toward minors, as to whom there are unquestionably greater risks of
inability to give an informed consent. Without holding that a
requirement of a court hearing would not unduly burden the rights
of a mature adult, . . . we think it clear that in the instant
litigation adoption of appellants' interpretation would "at least
materially change the nature of the problem"that appellants claim
is presented.[ [Fn. 10]]
Although Bellotti was a unanimous decision, Danforth was
not. Four other justices joined in Justice Blackmun's majority
opinion and four dissented in part. Justice Stewart joined in
Justice Blackmun's opinion but he wrote a separate concurring
opinion which was joined in by Justice Powell. Justice Stewart's
concurring opinion further developed the statement in Justice
Blackmun's opinion that not all minors regardless of age or
maturity could necessarily consent to an abortion. Justice Stewart
suggested that a statute which provides for either parental consent
or judicial authorization would be constitutional. He wrote:
With respect to the state law's
requirement of parental consent, sec. 3(4), I think it clear that
its primary constitutional deficiency lies in its imposition of an
absolute limitation on the minor's right to obtain an abortion.
The Court's opinion today in Bellotti v. Baird suggests that a
materially different constitutional issue would be presented under
a provision requiring parental consent or consultation in most
cases but providing for prompt (i) judicial resolution of any
disagreement between the parent and the minor, or (ii) judicial
determination that the minor is mature enough to give an informed
consent without parental concurrence or that abortion in any event
is in the minor's best interest. Such a provision would not impose
parental approval as an absolute condition upon the minor's right
but would assure in most instances consultation between the parent
and child.1
There can be little doubt that the State
furthers a constitutionally permissible end by encouraging an
unmarried pregnant minor to seek the help and advice of her parents
in making the very important decision whether or not to bear a
child. That is a grave decision, and a girl of tender years, under
emotional stress, may be ill-equipped to make it without mature
advice and emotional support. It seems unlikely that she will
obtain adequate counsel and support from the attending physician at
an abortion clinic, where abortions for pregnant minors frequently
take place.
_____________________________________________
1 For some of the considerations that
support the State's interest in encouraging parental consent, see
the opinion of Mr. Justice Stevens, concurring in part and
dissenting in part. Post, at 2856-57.[ [Fn. 11]]
Justice Stevens's partial dissent in Danforth contains a
useful explanation of the restraints that the state may impose on
children and of the importance of parental involvement in abortion
decisions. Justice Stevens wrote:
The State's interest in the welfare of its
young citizens justifies a variety of protective measures. Because
he may not foresee the consequences of his decision, a minor may
not make an enforceable bargain. He may not lawfully work or
travel where he pleases, or even attend exhibitions of
constitutionally protected adult motion pictures. Persons below a
certain age may not marry without parental consent. Indeed, such
consent is essential even when the young woman is already pregnant.
The State's interest in protecting a young person from harm
justifies the imposition of restraints on his or her freedom even
though comparable restraints on an adult would be constitutionally
impermissible. Therefore, the holding in Roe v. Wade that the
abortion decision is entitled to constitutional protection merely
emphasizes the importance of the decision; it does not lead to the
conclusion that the state legislature has no power to enact
legislation for the purpose of protecting a young pregnant woman
from the consequences of an incorrect decision.
. . . .
The Court recognizes that the State may
insist that the decision not be made without the benefit of medical
advice. But since the most significant consequences of the
decision are not medical in character, it would seem to me that the
State may, with equal legitimacy, insist that the decision be made
only after other appropriate counsel has been had as well.
Whatever choice a pregnant young woman makes -- to marry, to abort,
to bear her child out of wedlock -- the consequences of her
decision may have a profound impact on her entire future life. A
legislative determination that such a choice will be made more
wisely in most cases if the advice and moral support of a parent
play a part in the decisionmaking process is surely not irrational.
Moreover, it is perfectly clear that the parental-consent
requirement will necessarily involve a parent in the decisional
process.
. . . .
The State's interest is not dependent on
an estimate of the impact the parental-consent requirement may have
on the total number of abortions that may take place. I assume
that parents will sometimes prevent abortions which might better be
performed; other parents may advise abortions that should not be
performed. Similarly, even doctors are not omniscient; specialists
in performing abortions may incorrectly conclude that the immediate
advantages of the procedure outweigh the disadvantages which a
parent could evaluate in better perspective. In each individual
case factors much more profound than a mere medical judgment may
weigh heavily in the scales. The overriding consideration is that
the right to make the choice be exercised as wisely as possible.
The Court assumes that parental consent
is an appropriate requirement if the minor is not capable of
understanding the procedure and of appreciating its consequences
and those of available alternatives. This assumption is, of
course, correct and consistent with the predicate which underlies
all state legislation seeking to protect minors from the
consequences of decisions they are not yet prepared to make.[ [Fn.
12]]
Three years after the decisions in Danforth and Bellotti
the Bellotti case returned to the Supreme Court. [Fn. 13] The
Massachusetts Supreme Court had construed the statute to require
parental consent to an abortion, but if both parents refused, a
court could authorize an abortion for good cause. A minor seeking
an abortion could not seek court authorization without notice of
the judicial proceedings to her parents. Further, even if the
court found the minor capable of making an informed and reasonable
decision the court could refuse to authorize an abortion upon a
finding that a parent's or the court's own contrary decision would
be preferable. [Fn. 14]
The Supreme Court of the United States found this statute
to be defective in two respects: (1) it permitted judicial
authorization "to be withheld from a minor who is found by the
superior court to be mature and fully competent to make this
decision independently"; [Fn. 15] and (2) it "requires parental
consultation or notification in every instance, without affording
the pregnant minor an opportunity to receive an independent
judicial determination that she is mature enough to consent or that
an abortion would be in her best interests."[Fn. 16]
The lead opinion in the second Bellotti case was authored
by Justice Powell, joined by three other justices. The opinion
relied on and expanded the parental involvement rationale expressed
by Justice Stewart in his Danforth concurrence. [Fn. 17] Justice
Powell also described in some detail the elements of a parental
consent/judicial bypass statute that would pass constitutional
muster:
We therefore conclude that if the State
decides to require a pregnant minor to obtain one or both parents'
consent to an abortion, it also must provide an alternative
procedure whereby authorization for the abortion can be obtained.
A pregnant minor is entitled in such a
proceeding to show either: (1) that she is mature enough and well
enough informed to make her abortion decision, in consultation with
her physician, independently of her parents' wishes; or (2) that
even if she is not able to make this decision independently, the
desired abortion would be in her best interests. The proceeding in
which this showing is made must assure that a resolution of the
issue, and any appeals that may follow, will be completed with
anonymity and sufficient expedition to provide an effective
opportunity for an abortion to be obtained. In sum, the procedure
must ensure that the provision requiring parental consent does not
in fact amount to the "absolute, and possibly arbitrary, veto"that
was found impermissible in Danforth.[ [Fn. 18]]
Four other justices concurred in the result in Bellotti but took
exception to the "advisory opinion"aspects of Justice Powell's
opinion. [Fn. 19]
Four years after the second Bellotti decision, the Court
approved a parental consent/judicial bypass statute in Planned
Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft.
[Fn. 20] Justice Powell wrote the lead opinion which was joined in
by Chief Justice Burger and concurred in as to the result by
Justices O'Connor, White and Rehnquist. [Fn. 21] Justice Powell
stated based on the second Bellotti opinion:
A State's interest in protecting immature
minors will sustain a requirement of a consent substitute, either
parental or judicial. It is clear, however, that "the State must
provide an alternative procedure whereby a pregnant minor may
demonstrate that she is sufficiently mature to make the abortion
decision herself or that, despite her immaturity, an abortion would
be in her best interests."[ [Fn. 22]]
Again in Planned Parenthood v. Casey the Supreme Court
approved of a parental consent/judicial bypass statute. [Fn. 23]
Currently it appears that all of the members of the United States
Supreme Court believe that a judicial authorization procedure that
meets the conditions of the second Bellotti case is constitutional.
The Court's most recent expression of views on the subject appears
in Lambert v. Wickland. [Fn. 24] There the Court unanimously
upheld a Montana act which called for parental notification subject
to judicial bypass if, among other things, "the minor is
'sufficiently mature to decide whether to have an abortion.'"[Fn.
25]
II.
Following the criteria established in the second Bellotti
case forty-two states have enacted either parental consent or
parental notification statutes with provisions for a judicial
bypass. [Fn. 26] Alaska's parental consent/judicial bypass system
encompassed in AS 18.16.020 and .030 is part of this movement. It
applies to unmarried minors sixteen years of age or younger. Such
a minor may not obtain an abortion unless one of her parents
consents or unless a court authorizes her to consent without the
consent of a parent.
All the criteria established by Bellotti are satisfied by
the Alaska provisions. If the minor satisfies the judge that she
is "sufficiently mature and well enough informed to decide
intelligently whether to have an abortion"the court must issue an
order authorizing her to consent to an abortion without a parent's
concurrence. [Fn. 27] Even lacking such maturity, the court must
authorize the minor to consent on her own where "the consent of the
parent[]""is not in [her] best interest."[Fn. 28] Examples such
as physical, sexual, or emotional abuse are given as instances
where parental consent is not in the minor's best interest, but
these are not the only possible reasons for such a finding. The
proceedings are anonymous. [Fn. 29] And they are expedited. The
hearing must take place within forty-eight hours of the filing of
the petition and the court must make a decision immediately after
the hearing. [Fn. 30] If no hearing is held within five days after
the petition is filed, a constructive order authorizing the minor
to consent to an abortion must issue. [Fn. 31] Moreover, standard
forms for the petition are available at all court locations, there
are no filing fees or court costs, an attorney from the Office of
Public Advocacy will be appointed to represent the minor without
cost to her, and telephone hearings are available. [Fn. 32]
III.
In my view the act is constitutional. Since this case
will be before us again after the evidentiary hearing required by
today's opinion, I will only outline here the reasons for this
conclusion.
The legislature has set out the purposes of the act as
follows:
It is the intent of the legislature in
enacting this Act to further the important and compelling state
interests of
(1) protecting minors against their own
immaturity;
(2) fostering the family structure and
preserving it as a viable social unit;
(3) protecting the rights of parents to
rear children who are members of their household; and
(4) protecting the health of minor
women.[ [Fn. 33]]
In support of the act the legislature made the following
findings:
(1) immature minors often lack the
ability to make fully informed choices that take account of both
immediate and long-range consequences;
(2) the physical, emotional, and
psychological consequences of abortion are serious and can be
lasting particularly when the patient is immature;
(3) the capacity to become pregnant and
the capacity for mature judgment concerning the wisdom of an
abortion are not necessarily related;
(4) parents ordinarily possess
information essential to a physician's or surgeon's best medical
judgment concerning the child;
(5) parents who are aware that their
minor daughter has had an abortion may better ensure that the
daughter receives adequate medical attention after the abortion;
(6) parental consultation is usually
desirable and in the best interest of the minor; and
(7) parental involvement legislation
enacted in other states has shown to have a significant effect in
reducing abortion, birth, and pregnancy rates among minors.[ [Fn.
34]]
Without minimizing the importance of the other purposes,
in my view the purpose of protecting minors against their own
immaturity is compelling even when considered alone. Further, the
first six legislative findings noted above seem beyond reasonable
controversion. [Fn. 35] Justice Blackmun observed in Danforth that
it is "imperative"that adult women have full knowledge of the
nature and consequences of a decision to have an abortion; this is
surely even more true with respect to girls under the age of
seventeen.
The state has a strong interest in encouraging that
unemancipated minors seek counsel from their parents when deciding
whether to have an abortion. Parents are generally better able
than others to advise their children on matters involving sensitive
personal value judgments. Justice Stevens's partial dissent in
Danforth, quoted above at pages 6-8, and Justice Stewart's
concurring opinion in Danforth, quoted above on pages 5-6,
eloquently and persuasively make the case for this interest. The
act is well designed to promote parental consultation. But it does
so without going over the line and granting a blanket parental veto
power that would conflict with a minor's rights under Roe v. Wade.
When a girl believes that she should not consult with her parents,
she is free to go before a judge using simplified and expedited
procedures and free legal counsel in order to show that she has
sufficient maturity to make the decision on her own. This
alternative also serves the imperative that abortion decisions be
made with full knowledge and understanding of their nature and
consequences.
The superior court ruled that the equal rights clause of
the Alaska Constitution [Fn. 36] was violated by the act because
minors may consent without parental approval to medical care for
"conditions related to pregnancy"but require parental approval --
or judicial authorization -- for an abortion. I do not agree. In
my view a minor who decides to give birth is not similarly situated
with one who decides to have an abortion. In the former case the
interest in a healthy baby becomes critical and can justify not
requiring parental consent for prenatal care. Likewise, it is
difficult to imagine that the law would countenance forcing a young
woman to have an abortion against her will. But refusing to
consent to an abortion for a young woman too immature to make her
own decisions is an act of a different kind and character.
IV.
For the reasons outlined above I would reverse the
decision of the superior court and remand with directions to enter
judgment in favor of the state.
FOOTNOTES
Footnote 1:
See Ch. 14, sec.sec. 1-6, SLA 1997.
Footnote 2:
See AS 18.16.010(c) (making violation of consent statute
punishable by five years imprisonment, a fine of up to $1,000, or
both); see also AS 18.16.010(f), (g) (listing affirmative defenses
for this violation).
Footnote 3:
AS 18.16.020 provides:
Consent required before minor's abortion.
A person may not knowingly perform or induce an abortion upon a
minor who is known to the person to be pregnant, unmarried, under
17 years of age, and unemancipated unless, before the abortion, at
least one of the following applies:
(1) one of the minor's parents or the
minor's guardian or custodian has consented in
writing to the performance or inducement of
the abortion;
(2) a court issues an order under AS
18.16.030 authorizing the minor to consent to the abortion without
consent of a parent, guardian, or custodian, and the minor consents
to the abortion; or
(3) a court, by its inaction under AS
18.16.030, constructively has authorized the minor to consent to
the abortion without consent of a parent, guardian, or custodian,
and the minor consents to the abortion.
Footnote 4:
See AS 18.16.030(b)(4)(A) and (B); AS 18.16.030(e).
Footnote 5:
See AS 18.16.030(d).
Footnote 6:
See AS 18.16.030(k).
Footnote 7:
See AS 18.16.030(c). A similar provision applies to the
supreme court's consideration of the minor's appeal of a denied
petition. See AS 18.16.030(j).
Footnote 8:
See Alaska Const. art. I, sec. 22.
Footnote 9:
See Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994).
Footnote 10:
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 11:
See Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska
1987).
Footnote 12:
Wagstaff v. Superior Court, Family Court Div., 535 P.2d 1220,
1225 & n.7 (Alaska 1975).
Footnote 13:
In its complaint, Planned Parenthood of Alaska asserts that it
"operates clinics in Anchorage, Sitka, and Soldotna, where it
provides services to more than 3500 patients per year, including
young women under the age of seventeen. Included among services
[Planned Parenthood] provides to its clients are family planning,
pregnancy testing and counseling and referral on pregnancy options,
including prenatal care, abortion and adoption."
Footnote 14:
See, e.g., State v. Planned Parenthood of Alaska, Inc., Alaska
Supreme Court Docket No. S-8610, dismissed upon settlement in light
of Stenberg v. Carhart, 530 U.S. 914 (2000).
Footnote 15:
See AS 18.16.010(c),(e).
Footnote 16:
See Singleton v. Wulff, 428 U.S. 106, 117 (1976); see also
City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416,
440 n.30 (1983), overruled on other grounds by Planned Parenthood
of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
Footnote 17:
921 P.2d 620 (Alaska 1996).
Footnote 18:
481 U.S. 739, 745 (1987).
Footnote 19:
921 P.2d at 625 (quoting Salerno, 481 U.S. at 745).
Footnote 20:
Id. at 625-26.
Footnote 21:
Indeed, there is good reason to question the extent to which
the Supreme Court itself subscribes to Salerno's facial challenge
rule and whether that rule would bind state courts, even assuming
that it binds federal tribunals. In Troxel v. Granville, 530 U.S.
57 (2000), a divided Supreme Court declared unconstitutional as
applied a Washington nonparental visitation statute that the
Washington Supreme Court had ruled facially unconstitutional. The
Court's separate opinions engage in an internal debate that reveals
considerable uncertainty as to Salerno's status and reach. In
explaining why Washington's visitation law should not be declared
facially unconstitutional, for example, Justice O'Connor's
plurality opinion did not rely on Salerno, saying instead that the
Court should be "hesitant"to find a per se constitutional
violation "[b]ecause much state-court adjudication in this context
occurs on a case-by-case basis." 530 U.S. at 73. And Justice
Stevens's dissenting opinion described Salerno's facial challenge
rule as merely "suggested by the majority in [Salerno],"asserting
that the correct test for a facial challenge is whether an
unconstitutional statute has "a plainly legitimate sweep." 530
U.S. at 85 & n.6 (Stevens, J., dissenting) (emphasis added).
Meanwhile, in a separate dissenting opinion, Justice Kennedy
expressly reserved judgment on the issue of "the extent to which
federal rules for facial challenges to statutes control in state
courts." 530 U.S. at 94-95. In contrast, Justice Souter,
separately concurring, accepted without question "the power of a
State's highest court to construe its domestic statute and to apply
a demanding standard when ruling on its facial constitutionality."
530 U.S. at 79.
Footnote 22:
505 U.S. 833 (1992).
Footnote 23:
See id. at 894, 898.
Footnote 24:
Id. at 894.
Footnote 25:
948 P.2d 963 (Alaska 1997).
Footnote 26:
Ravin v. State, 537 P.2d 494, 504 (Alaska 1975).
Footnote 27:
Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138,
150 (Alaska 1977).
Footnote 28:
See, e.g., State v. Jones, 706 P.2d 317, 324 (Alaska 1985);
Schultz v. State, 593 P.2d 640, 642 (Alaska 1979); State v. Daniel,
589 P.2d 408, 416 (Alaska 1979); Zehrung v. State, 569 P.2d 189,
199 (Alaska 1977); Woods & Rohde, Inc., 565 P.2d at 150.
Footnote 29:
See State, Dep't of Revenue v. Oliver, 636 P.2d 1156, 1167
(Alaska 1981); Pinkerton v. State, 784 P.2d 671, 675 (Alaska App.
1989).
Footnote 30:
See State v. Glass, 583 P.2d 872, 879-81 (Alaska 1978); see
also Palmer v. State, 604 P.2d 1106, 1108 (Alaska 1979).
Footnote 31:
See Gunnerud v. State, 611 P.2d 69, 72 (Alaska 1980).
Footnote 32:
See Messerli v. State, 626 P.2d 81, 86 (Alaska 1980).
Footnote 33:
Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 480
(Alaska 1977).
Footnote 34:
Pharr v. Fairbanks N. Star Borough, 638 P.2d 666, 670 (Alaska
1981) (quoting Oliver, 636 P.2d at 1167); see also Doe v. Alaska
Superior Court, Third Judicial Dist., 721 P.2d 617, 629 (Alaska
1986).
Footnote 35:
See Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 980 (Alaska
1997); Jones v. Jennings, 788 P.2d 732, 737-38 (Alaska 1990).
Footnote 36:
See Valley Hosp., 948 P.2d at 969 & n.10.
Footnote 37:
See 1972 Senate Journal 865 (May 5, 1972).
Footnote 38:
SJR 68am, 1972 Senate Journal 970-71 (May 17, 1972).
Footnote 39:
H. Jud. Comm. Minutes at 318-19, 7th Leg., 1st Sess. (May 30,
1972).
Footnote 40:
See id.
Footnote 41:
See 1972 House Journal 1478-79 (June 5, 1972).
Footnote 42:
Valley Hosp., 948 P.2d at 969 & n.10.
Footnote 43:
Id. at 969 n.10.
Footnote 44:
H. Jud. Comm. Minutes at 318-19, 7th Leg., 1st Sess. (May 30,
1972) (emphasis added).
Footnote 45:
768 P.2d 1123 (Alaska 1989).
Footnote 46:
See id. at 1129-30.
Footnote 47:
Id. at 1129.
Footnote 48:
Id. (quoting Laurence H. Tribe, American Constitutional Lawsec.
1-2, at 2 (2d ed. 1988)).
Footnote 49:
Id. (quoting Woods & Rohde, Inc. v. State, Dep't of Labor, 565
P.2d 138, 148 (1977) (quoting Weltz v. State, 431 P.2d 502, 506
(Alaska 1967) (referring to article I, section 14 guarantees
against unreasonable searches and seizures))).
Footnote 50:
Id. at 1129-30 (quoting United States Jaycees v. Richardet,
666 P.2d 1008, 1013 (Alaska 1983) (quoting Baker v. City of
Fairbanks, 471 P.2d 386, 394 (Alaska 1970))) (emphasis omitted).
Footnote 51:
Notably, before the present litigation arose, the Attorney
General expressly agreed with this interpretation of the privacy
clause's implementation requirement. See 1984-2 Informal Op. Att'y
Gen. 269, 271 & n.2 ("The legislature has not comprehensively dealt
with the constitutional right to privacy"but "[t]he fact that the
legislature has not 'implemented' the constitutional right of
privacy does not detract from its force and effect. Article XII,
section 6 of the Alaska Constitution provides that the provisions
of the constitution shall be 'self-executing whenever possible.'");
1982 Informal Op. Att'y Gen. 105, 107 n.2 (same in discussing
public disclosure of longevity bonus program files); 1980 Informal
Op. Att'y Gen., Oct. 24, 1980 (same in discussing confidentiality
of loan files).
Footnote 52:
666 P.2d 1008 (Alaska 1983).
Footnote 53:
See id. at 1013.
Footnote 54:
See id.
Footnote 55:
The state unconvincingly attempts to analogize the present
case to Hootch v. Alaska State-Operated School System, 536 P.2d 793
(Alaska 1975). The constitutional clause at issue there was
article VII, section 1, which requires the legislature to
"establish and maintain a system of local public schools open to
all children of the State." Because this provision explicitly
assigns the legislature specific, ongoing duties that are
legislative in nature -- establishing and maintaining a system of
local schools -- we declined to construe the word "open"as
requiring a specific legislative course of action -- the building
of schools in all Alaska villages. Hootch, 536 P.2d at 804. Here,
by contrast, the legislative implementation language of article I,
section 22, is far less specific; the provision's substantive
language directly grants to Alaska citizens, not to the
legislature, a personal, broad-based right against governmental
intrusion; and the role of interpreting this kind of constitutional
grant is quintessentially judicial in nature.
Footnote 56:
See, e.g., Bellotti v. Baird, 443 U.S. 622 (1979). In
Bellotti, the Court identified three reasons supporting the
conclusion that the constitutional rights of children in the
abortion context cannot be equated with those of adults: "the
peculiar vulnerability of children; their inability to make
critical decisions in an informed, mature manner; and the
importance of the parental role in child rearing." Id. at 634
(plurality opinion).
Footnote 57:
See, e.g., In re D.D.S., 869 P.2d 160, 163 (Alaska 1994)
(determining that an evidentiary privilege protecting alcohol
treatment records does not apply in CINA proceedings); M.O.W. v.
State, 645 P.2d 1229, 1231 n.4 (Alaska 1982) (determining that
searches conducted by school officials during school hours on
school grounds are not governed by particular constitutional
safeguards).
Footnote 58:
Breese v. Smith, 501 P.2d 159, 167 (Alaska 1972).
Footnote 59:
Id. at 168.
Footnote 60:
See Alaska Const. art. I, sec. 1.
Footnote 61:
Breese, 501 P.2d at 170-75.
Footnote 62:
Anderson v. State, 562 P.2d 351, 358 (Alaska 1977) (internal
citation omitted) (quoting Ravin v. State, 537 P.2d 494, 511 n.69
(Alaska 1975) ("We note that distinct government interests with
reference to children may justify legislation that could not
properly be applied to adults.")).
Footnote 63:
See American Academy of Pediatrics v. Lungren, 940 P.2d 797,
814-16, 819 (Cal. 1997); In re T.W., 551 So. 2d 1186, 1194 (Fla.
1989); Planned Parenthood of Central N.J. v. Farmer, 762 A.2d 620,
626, 631-39 (N.J. 2000).
Footnote 64:
In re T.W., 551 So. 2d at 1193.
Footnote 65:
American Academy of Pediatrics, 940 P.2d at 814.
Footnote 66:
See Alaska Const. art. I, sec. 22.
Footnote 67:
Cf. Planned Parenthood of Central N.J., 762 A.2d at 626
("those rights belong equally to adults and to minors").
Footnote 68:
948 P.2d 963, 968 (Alaska 1997).
Footnote 69:
Bellotti v. Baird, 443 U.S. 622, 642 (1979) (citation
omitted).
Footnote 70:
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74
(1976), overruled in part by Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833 (1992).
Footnote 71:
Bellotti, 443 U.S. at 634.
Footnote 72:
See, e.g., Anderson v. State, 562 P.2d 351, 358 (Alaska 1977)
("Assuming that juveniles have certain rights to sexual privacy, we
nevertheless conclude that the State may exercise control over the
sexual conduct of children beyond the scope of its authority to
control adults."); Ravin v. State, 537 P.2d 494, 511 & n.69 (Alaska
1975) (recognizing that "[t]he state has a legitimate concern with
avoiding the spread of marijuana use to adolescents who may not be
equipped with the maturity to handle the experience prudently,"but
clarifying that we "do not intend to imply that the right of
privacy in the home does not apply to children"); Doe v. State, 487
P.2d 47, 52 (Alaska 1971) ("A child . . . should have no less right
to pre-adjudication freedom than an adult criminal defendant has
pending trial. On the other hand, a child is in need of some care
and supervision.").
Footnote 73:
American Academy of Pediatrics v. Lungren, 940 P.2d 797, 819
(Cal. 1997) (emphasis omitted); accord In re T.W., 551 So. 2d 1186,
1195 n.8 (Fla. 1989) (quoting H.L. v. Matheson, 450 U.S. 398, 441
n.32 (1981) (Marshall, J., dissenting) ("Although it may seem that
the minor's privacy right is somehow less fundamental because it
may be overcome by a 'significant state interest,' the more
sensible view is that state interests inapplicable to adults may
justify burdening the minor's right.")).
Footnote 74:
See Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948
P.2d 963, 969 (Alaska 1997).
Footnote 75:
Article I, section 1 of the Alaska Constitution provides, in
relevant part, "that all persons are equal and entitled to equal
rights, opportunities, and protection under the law."
Footnote 76:
Although the superior court viewed the act as one
distinguishing between pregnant minors who choose to abort and
minors who choose to give birth, as we point out in our discussion
of the court's ruling, a broader view of the act seems more
accurate.
Footnote 77:
574 P.2d 1 (Alaska 1978).
Footnote 78:
Id. at 12.
Footnote 79:
State v. Ostrosky, 667 P.2d 1184, 1192-93 (Alaska 1983).
Footnote 80:
See id. at 1193.
Footnote 81:
See Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269-70
(Alaska 1984); Ostrosky, 667 P.2d at 1193.
Footnote 82:
See AS 25.20.025(4) (allowing minors to obtain certain medical
services without parental consent).
Footnote 83:
The legislature made the following statement of purpose and
findings of fact in support of S.B. 24:
Section 1. PURPOSE; FINDINGS. (a) It is the
intent of the legislature in enacting this Act to further the
important and compelling state interests of
(1) protecting minors against their own
immaturity;
(2) fostering the family structure and
preserving it as a viable social unit;
(3) protecting the rights of parents to
rear children who are members of their household; and
(4) protecting the health of minor
women.
(b) The legislature finds that
(1) immature minors often lack the
ability to make fully informed choices that take account of both
immediate and long-range consequences;
(2) the physical, emotional, and
psychological consequences of abortion are serious and can be
lasting particularly when the patient is immature;
(3) the capacity to become pregnant and
the capacity for mature judgment concerning the wisdom of an
abortion are not necessarily related;
(4) parents ordinarily possess
information essential to a physician's or surgeon's best medical
judgment concerning the child;
(5) parents who are aware that their
minor daughter has had an abortion may better ensure that the
daughter receives adequate medical attention after the abortion;
(6) parental consultation is usually
desirable and in the best interest of the minor; and
(7) parental involvement legislation
enacted in other states has shown to have a significant effect in
reducing abortion, birth, and pregnancy rates among minors.
Ch. 14, sec. 1, SLA 1997.
Footnote 84:
See American Academy of Pediatrics v. Lungren, 940 P.2d 797
(Cal. 1997); In re T.W., 551 So. 2d 1186 (Fla. 1989).
Footnote 85:
AS 25.20.025(a) provides:
(a) Except as prohibited under AS 18.16.010(a)(3),
(1) a minor who is living apart from the minor's
parents or legal guardian and who is managing the minor's own
financial affairs, regardless of the source or extent of income,
may give consent for medical and dental services for the minor;
(2) a minor may give consent for medical and dental
services if the parent or legal guardian of the minor cannot be
contacted or, if contacted, is unwilling either to grant or
withhold consent; however, where the parent or legal guardian
cannot be contacted or, if contacted, is unwilling either to grant
or to withhold consent, the provider of medical or dental services
shall counsel the minor keeping in mind not only the valid
interests of the minor but also the valid interests of the parent
or guardian and the family unit as best the provider presumes them;
(3) a minor who is the parent of a child may give
consent to medical and dental services for the minor or the child;
(4) a minor may give consent for diagnosis,
prevention or treatment of pregnancy, and for diagnosis and
treatment of venereal disease;
(5) the parent or guardian of the minor is relieved
of all financial obligation to the provider of the service under
this section.
Footnote 86:
For example, Planned Parenthood contends that the act's
judicial authorization requirement would functionally create
geographical classifications by imposing insurmountable burdens on
pregnant minors who live in remote areas of the state that lack
readily accessible judicial and legal services. It also contends
that the act impermissibly distinguishes between minors who are
seventeen years of age and those who are younger and between minors
who are married or emancipated and those who are not.
Footnote 87:
See, e.g., Newton v. Magill, 872 P.2d 1213, 1215 (Alaska
1994).
Footnote 88:
The state alternatively argues that pregnant minors who choose
abortion and those who choose to give birth are not similarly
situated. Since we conclude that a remand is necessary on the
issues of compelling state interest and least restrictive
alternative, we need not address this argument here. We note,
however, that the question whether these two subsets of pregnant
minors are similarly situated may not readily lend itself to
disposition as a matter of law. In our view, the question may
require the resolution of disputed issues of fact. Accordingly,
the parties should be allowed to address this issue at the
evidentiary hearing on remand.
Footnote 89:
667 P.2d 1184 (Alaska 1983).
Footnote 90:
Id. at 1193 (quoting Isakson v. Rickey, 550 P.2d 359, 362
(Alaska 1976) (other citations omitted)).
Footnote 91:
Id. (emphasis added).
Footnote 92:
See, e.g., Gilbert v. State, 526 P.2d 1131, 1134-36 (Alaska
1974). If the court's inquiry had revealed no compelling
governmental interests, of course, then the court would have needed
to go no further: the lack of a compelling state interest would
have doomed the act under either the privacy or equal protection
analyses.
Footnote 93:
See, e.g., Planned Parenthood League of Mass., Inc. v.
Attorney General, 677 N.E.2d 101, 106 n.10 (Mass. 1997) ("The
differences between an adult and a minor; between married, widowed,
or divorced pregnant minors and an unmarried pregnant minor; and
between the special considerations applicable to an abortion as
opposed to some other intrusive medical procedure justify the
special treatment that [the statute] accords to an unmarried
pregnant minor who seeks to terminate her pregnancy."); see also,
e.g., American Academy of Pediatrics v. Lungren, 940 P.2d 797, 865
(Mosk, J., dissenting) ("[The legislature] could reasonably, and
neutrally, determine, as a matter of policy, that in the case of an
unemancipated minor who is pregnant and intends to bear a child the
public health interest in allowing her to obtain medical care for
herself and her fetus is overriding, regardless of parental
approval and whether or not the unemancipated minor is mature.").
Footnote 94:
See, e.g., Ch. 14 sec. 1(b)(2), (7), SLA 1997.
Footnote 95:
Planned Parenthood of Central N.J. v. Farmer, 762 A.2d 620,
633 (N.J. 2000).
Footnote 96:
Cf. American Academy of Pediatrics, 940 P.2d at 827 (existence
of numerous statutes allowing minors to obtain medical care without
parental consent is "fundamentally inconsistent"with contention
that statute requiring a minor's parental consent to abortion "is
necessary to protect the health of such minor or to support the
parent-child relationship"); see also AS 25.20.025(a)(4) (except as
access to abortion is limited by the parental consent or judicial
authorization act, a "minor may give consent for diagnosis,
prevention or treatment of pregnancy, and for diagnosis and
treatment of venereal disease"); AS 25.20.025(a)(1) (allowing
independent minors to give consent for all medical services except
abortion).
Footnote 97:
Cf. Planned Parenthood of Central N.J., 762 A.2d at 638 ("The
evidence presented in plaintiffs' certifications leads inexorably
to the conclusion that the proffered statutory reasons for
requiring parental notification are not furthered by the
statute.").
Footnote 98:
Stenberg v. Carhart, 530 U.S. 914, 952 (2000) (Ginsburg, J.,
concurring); cf. State, Dep't of Revenue, Permanent Fund Dividend
Div. v. Cosio, 858 P.2d 621, 629 (Alaska 1993).
Footnote 99:
See Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994).
Footnote 100:
Notably, none of the three state supreme court cases that have
invalidated provisions similar to Alaska's has declined to decide
whether the state had a compelling interest that justified
burdening the privacy rights of a minor. In American Academy of
Pediatrics, the Supreme Court of California struck down a similar
provision without squarely deciding the equal protection issue,
relying solely on privacy grounds to conclude that the state had
failed to provide "adequate justification for the statute's
intrusion on a pregnant minor's right to privacy under the
California Constitution." 940 P.2d at 831. In Planned Parenthood
of Central N.J., 762 A.2d at 631-39, and In re T.W., 551 So. 2d
1186, 1192-93 (Fla. 1989), the Supreme Court of New Jersey and
Supreme Court of Florida struck similar statutes on grounds of
equal protection, but only after each court initially determined
that the statutes violated the privacy rights of pregnant minors,
because the states lacked a compelling interest to require parental
consent.
Footnote 101:
Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d
963, 972 (Alaska 1997).
Footnote 102:
In Breese v. Smith, 501 P.2d 159 (Alaska 1972), we noted a
trend in cases involving conflicts between school appearance codes
and the personal rights of students of rejecting mere conjectural
justifications for the codes and requiring instead empirical
studies or other forms of "'hard facts.'" Id. at 172 & n.57. We
also note that the Supreme Court of California in American Academy
of Pediatrics based its ruling that a parental consent statute
violated a minor's state constitutional right to privacy on
"overwhelming evidence"introduced at trial, including the
testimony of expert witnesses "with training and experience in the
fields of health care, adolescent development, and the application
of judicial bypass procedures in other states." 940 P.2d at 806,
828. The testimony -- unavailable here -- covered a wide range of
subjects, "including the relative medical and psychological risks
posed to pregnant minors by abortion and childbirth, the general
maturity of minors seeking abortion, the existing guidelines and
practices with regard to the counseling provided to minors seeking
abortion, and the general efficacy (or lack thereof) of the
judicial bypass process in other jurisdictions." Id. at 806. In
Planned Parenthood of Central N.J., no trial or evidentiary hearing
was held because "the parties agreed that the matter should be
heard 'solely on briefs and certifications.'" 762 A.2d at 625.
The court relied heavily on the evidence submitted by
certification. See id. at 632-38. Here, by contrast, the parties
did not stipulate to a body of evidence for the court to consider
in deciding the issues presented. And although the Florida Supreme
Court evidently did decide similar issues in In re T.W. without an
extensive evidentiary record, the court seemingly had little choice
in the matter, since the Florida appeal arose by appeal from a
trial court decision denying a minor's petition for waiver of
parental consent. See 551 So. 2d at 1189.
Footnote 103:
We emphasize that, in conducting the evidentiary hearing on
remand, the superior court will have broad latitude to determine
the admissibility and scope of evidence that bears on these
difficult questions.
FOOTNOTES (Dissent)
Footnote 1:
Although I disagree with the result reached by the majority
opinion, I join in the opinion insofar as it rejects the state's
argument that the constitutional right to privacy has no operative
effect unless and until it is implemented by the legislature.
Footnote 2:
410 U.S. 113 (1973).
Footnote 3:
428 U.S. 52 (1976).
Footnote 4:
Id. at 66-67.
Footnote 5:
See id. at 74.
Footnote 6:
Id. at 75 (citations omitted).
Footnote 7:
428 U.S. 132 (1976).
Footnote 8:
Id. at 145.
Footnote 9:
See id. at 145-46.
Footnote 10:
Id. at 147 (citations omitted).
Footnote 11:
Danforth, 428 U.S. at 90-91.
Footnote 12:
Id. at 102-104.
Footnote 13:
Bellotti v. Baird, 443 U.S. 622 (1979).
Footnote 14:
See id. at 630.
Footnote 15:
Id. at 651.
Footnote 16:
Id.
Footnote 17:
See id. at 633-41.
Footnote 18:
Id. at 643-44 (footnotes omitted).
Footnote 19:
See id. at 652-53, Stevens, J., concurring in the judgment.
The ninth justice, Justice White, dissented, but in doing so
expressed his approval of a blanket parental consent requirement
and Massachusetts' parental consent/judicial bypass system. See
id. at 656-57.
Footnote 20:
462 U.S. 476, 493 (1983).
Footnote 21:
See id. at 477-78, 505-06.
Footnote 22:
Id. at 491-92 (quoting City of Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 439 (1983)).
Footnote 23:
505 U.S. 833, 899 (1992) (joint opinion of Justices O'Connor,
Kennedy and Souter); id. at 970 (concurring and dissenting opinion
of Chief Justice Rehnquist, joined by Justices White, Scalia and
Thomas voting to uphold the parental consent/judicial bypass option
of the statute in question); id. at 922 n.8 (Stevens, J.,
concurring in part and dissenting in part indicating agreement in
principle with a "parental-consent requirement (with the
appropriate bypass).").
Footnote 24:
520 U.S. 292 (1997).
Footnote 25:
Id. at 294 (quoting Bellotti v. Baird, 443 U.S. 622, 640-42
(1979)). There is a dispute on the Court as to whether parental
notification must be subject to a judicial bypass in order to be
constitutional. But this dispute did not have to be resolved in
Lambert nor in the case upon which Lambert principally relied, Ohio
v. Akron Center for Reproduction Health, 497 U.S. 502 (1990),
because the Court found that the bypass provisions satisfied the
criteria established in the second Bellotti case. Lambert, 520
U.S. at 295.
Footnote 26:
See Nicole A. Saharsky, Consistency as a Constitutional Value:
A Comparative Look at Age in Abortion and Death Penalty
Jurisprudence, 85 Minn. L. Rev. 1119, 1170 n.164 (2001).
Footnote 27:
See AS 18.16.030(e).
Footnote 28:
See AS 18.16.030(b)(4)(B).
Footnote 29:
See AS 18.16.030(k).
Footnote 30:
See AS 18.16.030(c); Alaska R. Prob. P. 20(d).
Footnote 31:
See Alaska R. Prob. P. 20(f).
Footnote 32:
See AS 18.16.030(n); AS 44.21.410(a)(4), as amended by ch. 67
sec. 38, SLA 2001.
Footnote 33:
Ch. 14, sec. 1(a), SLA 1997.
Footnote 34:
Id., sec. 1(b).
Footnote 35:
Again, I do not mean to suggest that the seventh finding
concerning the effects of legislation in other states is wrong,
only that it is not obviously right.
Footnote 36:
See Alaska Const. art. I, sec. 1.
