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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Planned Parenthood of Alaska (11/02/2007) sp-6184
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Supreme Court Nos. S- 11365/11386 | |
| Appellant/ | ) |
| Cross-Appellee, | ) Superior Court No. |
| ) 3AN-97-06014 CI | |
| v. | ) |
| ) O P I N I O N | |
| PLANNED PARENTHOOD OF | ) |
| ALASKA and JAN WHITEFIELD, | ) No. 6184 November 2, 2007 |
| M.D., | ) |
| ) | |
| Appellees/ | ) |
| Cross-Appellants. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Kevin G. Clarkson, Brena, Bell
& Clarkson, P.C., Anchorage, for Appellant
and Cross-Appellee. Janet Crepps, Center for
Reproductive Rights, Simpsonville, South
Carolina, and Suzanne Novak, Center for
Reproductive Rights, New York, New York, for
Appellees and Cross-Appellants, and Jeffrey
M. Feldman, Feldman & Orlansky, Anchorage,
for Appellees and Cross-Appellants, and
Cooperating Attorney for the Alaska Civil
Liberties Union. Paul Benjamin Linton,
Northbrook, Illinois, and Robert Flint,
Hartig, Rhodes, Hoge & Lekisch, Anchorage,
for Amicus Curiae Alaska State Legislature.
Kenneth C. Kirk, Kenneth Kirk & Associates,
Anchorage, for Amicus Curiae Family Research
Council. Wayne Anthony Ross, Ross & Miner,
Anchorage, for Amicus Curiae Americans United
for Life. Geoffrey G. Currall, Keene &
Currall, Ketchikan, for Amicus Curiae Liberty
Legal Institute. Sara Trent, Anchorage,
Cooperating Attorney for the Alaska Civil
Liberties Union, and Kent A. Yalowitz, Arnold
& Porter LLP, New York, New York, for Amicus
Curiae Alaska Chapter of the American Academy
of Pediatrics. Erica A. Green and Deborah
Kovsky-Apap, Wilmer Cutler Pickering Hale &
Dorr LLP, Washington, D.C., and Christine
Schleuss, Friedman Rubin & White, Anchorage,
for Amici Curiae American College of
Obstetricians and Gynecologists, Society of
Adolescent Medicine, and Physicians for
Reproductive Choice and Health. Janell
Hafner, Reges & Boone, LLC, Juneau, and
Stacey I. Young, Womens Law Project,
Pittsburgh, Pennsylvania, for Amici Curiae
National Association of Social Workers Alaska
Chapter, Alaska Womens Lobby, Alaska Pro-
Choice Coalition, National Center for Youth
Law, Juvenile Law Center, and Janes Due
Process. Debra J. Brandwein, Foster Pepper
Rubini & Reeves LLC, Anchorage, for Amicus
Curiae Northwest Womens Law Center.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
CARPENETI, Justice, with whom Matthews,
Justice, joins, dissenting.
I. INTRODUCTION
From time to time, we are called upon to decide
constitutional cases that touch upon the most contentious moral,
ethical, and political issues of our day. In deciding such
cases, we are ever mindful of the unique role we play in our
democratic system of government. We are not legislators, policy
makers, or pundits charged with making law or assessing the
wisdom of legislative enactments. We are not philosophers,
ethicists, or theologians, and cannot aspire to answer
fundamental moral questions or resolve societal debates.1 We are
focused only on upholding the constitution and laws of the State
of Alaska.
Today, we are once again called upon to decide a case
that implicates the controversial issue of abortion; more
specifically, we are called upon to decide whether the Parental
Consent Act impermissibly infringes upon a minors fundamental
right to privacy when deciding whether to terminate a pregnancy.
We decide today that the State has an undeniably compelling
interest in protecting the health of minors and in fostering
family involvement in a minors decisions regarding her pregnancy.
And contrary to the arguments of Planned Parenthood, we determine
that the constitution permits a statutory scheme which ensures
that parents are notified so that they can be engaged in their
daughters important decisions in these matters. But we
ultimately conclude that the Act does not strike the proper
constitutional balance between the States compelling interests
and a minors fundamental right to privacy.
This is the second time that this case has been before
us, and we earlier held that the privacy clause of the Alaska
Constitution extends to minors as well as adults and that the
State may restrict a minors privacy right only when necessary to
further a compelling state interest and only if no less
restrictive means exist to advance that interest.2 The States
asserted interest in protecting a minor from her own immaturity
by encouraging parental involvement in her decision-making
process is undoubtedly compelling. But by prohibiting a minor
from obtaining an abortion without parental consent, the Act
effectively shifts that minors fundamental right to choose if and
when to have a child from the minor to her parents. There exists
a less burdensome and widely used means of actively involving
parents in their minor childrens abortion decisions: parental
notification.3 The United States Supreme Court has recognized,
in a different context, that notice statutes are not equivalent
to consent statutes because they do not give anyone a veto power
over a minors abortion decision.4 And many states currently
employ this less restrictive approach. Because the State has
failed to establish that the greater intrusiveness of a statutory
scheme that requires parental consent, rather than parental
notification, is necessary to achieve its compelling interests,
the Parental Consent Act does not represent the least restrictive
means of achieving the States interests and therefore cannot be
sustained.
II. FACTS AND PROCEEDINGS
In 1997 the Alaska Legislature passed the Alaska
Parental Consent Act (PCA).5 The PCA prohibits doctors from
performing an abortion on an unmarried, unemancipated woman under
17 years of age without parental consent or judicial
authorization.6 The Act subjects doctors who knowingly perform
abortions on minors without the required consent or judicial
authorization to criminal prosecution.7 The parental consent
requirement can be met through written consent from a parent,
guardian, or custodian of the minor.8 The Act also includes a
judicial bypass procedure whereby a minor may file a complaint in
superior court and obtain judicial authorization to terminate a
pregnancy if she can establish by clear and convincing evidence
either that she is sufficiently mature and well enough informed
to decide intelligently whether to have an abortion or that being
required to obtain parental consent would not be in her best
interests.9 If the court fails to hold a hearing within five
business days after the complaint is filed, the courts inaction
is considered a constructive order authorizing the minor to
consent to terminate the pregnancy.10
On July 25, 1997, Planned Parenthood, Drs. Jan
Whitefield and Robert Klem, and ten unidentified Jane Does filed
a complaint in superior court seeking declaratory and injunctive
relief. The complaint alleged that the PCA violates state
constitutional rights to privacy, equal protection, and due
process. On January 7, 1998, the plaintiffs filed a motion for
summary judgment. The superior court granted that motion,
concluding that the PCA violates the equal protection clause of
the Alaska Constitution. The superior court also concluded that
the privacy clause of the Alaska Constitution protects minors as
well as adults. However, in light of its equal protection
ruling, the superior court did not decide whether the PCA
violates the Alaska Constitutions privacy clause.
The State appealed, and on November 16, 2001, we issued
our decision in Planned Parenthood I.11 In that case, we
concluded that the privacy clause of the Alaska Constitution
extends to minors as well as adults and that the State may
constrain a pregnant minors privacy right only when necessary to
further a compelling state interest and only if no less
restrictive means exist to advance that interest.12 We also
reversed the grant of summary judgment and remanded the case for
an evidentiary hearing to determine whether the PCA actually
furthers compelling state interests using the least restrictive
means available.13
On October 4, 2002, prior to the evidentiary hearing on
remand, the plaintiffs again moved for summary judgment, this
time arguing that the PCA violates the constitution by failing to
exclude abortions performed in medical emergencies. On January
2, 2003, the superior court denied the motion for summary
judgment.
From January 6 to January 24, 2003, the superior court
held a bench trial to hear evidence regarding the
constitutionality of the PCA. On October 13, 2003, the superior
court issued a decision on remand holding that the PCA is
unconstitutional because it fails to further compelling state
interests using the least restrictive means available. On
January 7, 2004, the superior court entered judgment declaring
that the PCA was unconstitutional under the equal protection and
privacy clauses of the Alaska Constitution and enjoining the
State from enforcing the Act.
The State now appeals the superior courts judgment.
The plaintiffs cross-appeal the superior courts denial of their
motion seeking summary judgment based on the absence of a medical
emergency exception.
III. STANDARD OF REVIEW
We review the superior courts factual determinations
for clear error.14 We review constitutional questions de novo,
adopting the most persuasive rule of law in light of precedent,
reason, and policy.15 We uphold a statute against a facial
constitutional challenge if despite any occasional problems it
might create in its application to specific cases, [the statute]
has a plainly legitimate sweep.16
IV. DISCUSSION
Under our case law, we begin our analysis in cases such
as the one at hand by measuring the weight and depth of the
individual right at stake so as to determine the proper level of
scrutiny with which to review the challenged legislation.17 If
this individual right proves to be fundamental, we must then
review the challenged legislation strictly, allowing the law to
survive only if the State can establish that it advances a
compelling state interest using the least restrictive means
available.18 In cases involving the right to privacy, the precise
degree to which the challenged legislation must actually further
a compelling state interest and represent the least restrictive
alternative is determined, at least in part, by the relative
weight of the competing rights and interests.19 As we have
previously explained, the rights to privacy and liberty are
neither absolute nor comprehensive . . . [and] their limits
depend on a balance of interests.20
A. The Individual Right at Stake Is Fundamental.
The plaintiffs assert that the PCA burdens minors
fundamental right to privacy under article I, section 22 of the
Alaska Constitution.21 This section of the constitution maintains
that [t]he right of the people to privacy is recognized and shall
not be infringed. As we have previously explained, the primary
purpose of this section is to protect Alaskans personal privacy
and dignity against unwarranted intrusions by the State.22
Because this right to privacy is explicit, its protections are
necessarily more robust and broader in scope than those of the
implied federal right to privacy.23
Included within the broad scope of the Alaska
Constitutions privacy clause is the fundamental right to
reproductive choice. As we have stated in the past, few things
are more personal than a womans control of her body, including
the choice of whether and when to have children, and that choice
is therefore necessarily protected by the right to privacy.24 Of
course, our original decision concerning the fundamental right to
reproductive choice specifically addressed only the privacy
interests of adult women, but because the uniquely personal
physical, psychological, and economic implications of the
abortion decision . . . are in no way peculiar to adult women,25
its reasoning was and continues to be as applicable to minors as
it is to adults.26 Thus, in Planned Parenthood I, we explicitly
extended the fundamental reproductive rights guaranteed by the
privacy clause to minors.27
In the case at hand, the PCA requires minors to secure
either the consent of their parent or judicial authorization
before they may exercise their uniquely personal reproductive
freedoms. This requirement no doubt places a burden on minors
fundamental right to privacy. As such, the PCA must be subjected
to strict scrutiny and can only survive review if it advances a
compelling state interest using the least restrictive means of
achieving that interest.28
B. The States Asserted Interests Are Compelling.
The State asserts that the PCA works, on the most
generalized level, to advance two interrelated interests:
protecting minors from their own immaturity and aiding parents in
fulfilling their parental responsibilities.29 We agree with the
State that these are compelling interests.
Although the Alaska Constitution extends the right to
privacy in equal measure to both minors and adults, it is not
blind to the unique vulnerabilities and needs that accompany
minority. As we noted in Planned Parenthood I, state interests
that are inapplicable to adults may sometimes be compelling with
regard to minors.30 And this is certainly the case with regard to
the States asserted interest in protecting minors from their own
immaturity. Lacking in experience, perspective, and judgment,
minors often do not possess the capacity to make informed, mature
decisions, and are therefore susceptible to a host of pitfalls
and dangers unknown in adult life.31 As we have recognized in the
past, the State has a special, indeed compelling, interest in the
health, safety, and welfare of its minor citizens and may
properly take affirmative steps to safeguard minors from their
own immaturity.32
Insofar as and to the same extent that the State has an
interest in protecting minors, so too does it have an interest in
aiding parents to fulfill their parental responsibilities. A
minor child is not [a] mere creature of the state,33 and the
affirmative process of teaching, guiding, and inspiring34 a minor
child is, in large part, beyond the competence of impersonal
political institutions.35 Parents, therefore, have an important
guiding role to play in the upbringing of their children.36
Indeed, it is the right and duty, privilege and burden, of all
parents to involve themselves in their childrens lives; to
provide their children with emotional, physical, and material
support; and to instill in their children moral standards,
religious beliefs, and elements of good citizenship.37 We thus
echo the United States Supreme Courts statement that, [u]nder the
Constitution, the State can properly conclude that parents . . .
who have [the] primary responsibility for childrens well-being
are entitled to the support of laws designed to aid [in the]
discharge of that responsibility. 38
C. The PCA Is Not the Least Restrictive Means of Achieving
the States Compelling Interests.
Having identified and weighed the rights and interests
at stake, we now turn to the task of assessing whether the PCA
advances the States compelling interests using the least
restrictive means available.
We recognize that the legislature has made a serious
effort to narrowly tailor the scope of the PCA by exempting
seventeen-year-olds and other categories of pregnant minors from
the Acts ban. It is true that the PCA is less restrictive than
many other state statutes in terms of the scope of its coverage.
But scope is only one of the important criteria that determine
the extent to which a parental involvement law restricts minors
privacy rights. The method by which the statute involves parents
is also central to determining whether the Acts provisions
constitute the least restrictive means of pursuing the States
ends.
By prohibiting minors from terminating a pregnancy
without the consent of their parents, the PCA bestows upon
parents what has been described as a veto power over their minor
childrens abortion decisions.39 This veto power does not merely
restrict minors right to choose whether and when to have
children, but effectively shifts a portion of that right from
minors to parents. In practice, under the PCA, it is no longer
the pregnant minor who ultimately chooses to exercise her right
to terminate her pregnancy, but that minors parents. And it is
this shifting of the locus of choice this relocation of a
fundamental right from minors to parents that is
constitutionally suspect. For a review of statutory schemes
enacted around the nation reveals a widely used legislative
alternative that does not shift a minors right to choose:
parental notification.
Currently, fifteen states have parental notification
statutes in place.40 Although the precise details of these
statutes vary, they all prohibit minors from terminating a
pregnancy until their parents have been notified and afforded an
appropriate period of time to actively involve themselves in
their minor childrens decision-making processes.41 Stated another
way, these statutes seek to involve parents, not by giving them
veto power, but by giving them notice and time to consult with
and guide their daughters through this important decision. As
such, although parental notification statutes undoubtedly burden
the privacy rights of minors, they do not go so far as to shift a
portion of those rights to parents.
Of course, as the dissent emphasizes, the PCA does
include a judicial bypass procedure through which some minors may
effectively regain the right to reproductive choice by obtaining
judicial authorization to forgo parental consent.42 The State
argues that judicial bypass is the means by which a girl can
relieve herself of the burden of parental consent. (Emphasis in
original.) But the State and its supporting amici fail to
effectively rebut the trial courts express findings to the
contrary. According to the superior courts findings, the PCAs
bypass procedures build in delay that may prove detrimental to
the physical health of the minor, particularly for minors in
rural Alaska who already face logistical obstacles to obtaining
an abortion. The trial court found that judicial bypass
procedures will increase these problems, delay the abortion, and
increase the probability that the minor may not be able to
receive a safe and legal abortion. The State has not expressly
challenged as clearly erroneous the superior courts findings on
this point but dismisses these concerns, arguing that [r]ural
Alaskan girls will pursue bypass on the same trip to the same
urban location where they must go to obtain their procedures.
But not all minors possess the wherewithal to embark upon a
formal legal adjudication during a time of crisis.
Moreover, the inclusion of this judicial bypass
procedure does not reduce the restrictiveness of the PCA relative
to a parental notification statute. Every state to enact a
parental notification regime has opted to include either a
judicial bypass procedure similar to the PCAs procedure or an
even more permissive bypass procedure.43 As such, the PCAs
inclusion of a judicial bypass procedure does not set the PCA
apart from or reduce its intrusiveness relative to parental
notification statutes.
Ultimately, because the PCA shifts the right to
reproductive choice to minors parents, we must conclude that the
PCA is, all else being held equal, more restrictive than a
parental notification statute. The State has failed to establish
that the greater intrusiveness of consent statutes is in any way
necessary to advance its compelling interests. In fact, in its
briefing before us, the State has not focused on the PCAs
benefits as flowing directly from the parental veto power;
instead, it has consistently suggested that the PCAs benefits
flow from increased parental communication and involvement in the
decision-making process. According to the State, the PCA
protects minors from their own immaturity by increasing adult
supervision; it protects the physical, emotional, and
psychological health of minors, [p]articularly in the post-
abortion context, [by increasing] parental participation . . .
for the purposes of monitoring . . . risks; it ensures that
minors give informed consent to the abortion procedure by making
it more likely that they will receive counsel that a doctor
cannot give, advice, adapted to her unique family situation, that
covers the moral, social and religious aspects of the abortion
decision; it protects minors from sexual abuse since once
appr[]ised of a young girls pregnancy, parents . . . will ask who
impregnated her and will report any sexual abuse; and it
strengthens the parent-child relationship by increas[ing]
parental involvement, parental consultation, and open and honest
communication.
These expressed legislative goals increased parental
communication, involvement, and protection are no less likely to
accompany parental notification than the parental veto power.
The dissent suggests that where a minor forgoes judicial bypass,
parental consent guarantees a conversation. But it guarantees no
more than a one-way conversation and allows parents to refuse to
consent not only where their judgment is better informed and
considered than that of their daughter, but also where it is
colored by personal religious belief, whim, or even hostility to
her best interests.44
Notification statutes protect minors by enhancing the
potential for parental consultation concerning a [minors]
decision.45 In fact, to the extent that parents who do not
possess a veto power over their minor childrens abortion decision
have a greater incentive to engage in a constructive and ongoing
conversation with their minor children about the important
medical, philosophical, and moral issues surrounding abortion, a
notification requirement may actually better serve the States
compelling interests.
In sum then, the PCA does not represent the least
restrictive means of achieving the States asserted interests and
therefore cannot be sustained. In reaching this decision, we go
no further than the Alaska Constitution demands, and merely
reaffirm that the State does not strike the proper constitutional
balance between its own compelling interests and the fundamental
rights of its citizens by adopting an unnecessarily restrictive
statute.
V. CONCLUSION
For the reasons detailed above, we AFFIRM the superior
courts decision striking down the Parental Consent Act as a
violation of the Alaska Constitutions right to privacy.
CARPENETI, Justice, with whom MATTHEWS, Justice, joins,
dissenting.
In 1997, faced with competing interests of the highest
constitutional level an underage pregnant girls constitutional
right to privacy in deciding whether to terminate her pregnancy,
her parents constitutional right (and duty) to protect her best
interests, and the states compelling interests in protecting
children against their own immaturity the Alaska Legislature
carefully crafted the Alaska Parental Consent Act in an effort to
recognize and protect all of these interests. That law is fully
consistent with United States Supreme Court precedent, yet todays
opinion strikes it down. Because this courts rejection of the
legislatures thoughtful balance is inconsistent with our own case
law and unnecessarily dismissive of the legislatures role in
expressing the will of the people, I respectfully dissent.
I. The Constitutional Framework
Before looking at the Parental Consent Act in detail to
determine how it balances the strong competing interests
involved, it is helpful to consider the analytical framework used
by courts in deciding constitutional challenges of the kind
involved in this case. In a series of cases, we have established
a three-step process. We have first looked to the nature and
extent of the individual right that is claimed. If we determine
that the right is fundamental, we then examine whether the states
interest in burdening the individual right is compelling. If the
states interest is compelling, we look to make certain that there
is a sufficiently close fit between the goals of the legislation
and the means adopted by the state to reach those goals.
The individual right claimed in this case is the
fundamental right of an unmarried pregnant minor to privacy in
her decision whether to terminate her pregnancy. The compelling
interest claimed by the state is multi-faceted, including
protecting minors from their own immaturity (by recognizing the
parents right (and duty) to guide their childrens upbringing) and
protecting the health of minors. If both the individual right is
fundamental and the states interest is compelling, the court must
decide whether the law is tailored closely enough to achieve its
intended purpose.
II. The Alaska Parental Consent Act
The hallmark of the Alaska Parental Consent Act (PCA or
the Act) is the remarkable length to which the legislature went
in order to accommodate all of the various, and at times
competing, interests that are involved when an unmarried teenage
(or pre-teen) girl is faced with pregnancy.1 In recognition of
the primary role that parents are normally expected to play in
the upbringing of their children, and in recognition of the fact
that children are generally not considered competent to consent
to medical procedures, the Act requires the consent of a parent
in order for the child to undergo an abortion.2 In recognition
of the fact that divulging her pregnancy to her parents may in
some instances be unnecessary or inappropriate because the minor
is sufficiently mature and intelligent to decide the question on
her own or because her parent or parents have engaged in
physical, sexual, or emotional abuse against her (or because
obtaining their consent is otherwise not in the childs best
interests) the Act provides for a confidential and speedy
judicial bypass procedure in which a judge decides whether the
minor is competent to decide for herself.3
The legislature engrafted multiple exceptions to the
scope of the Act in an effort to create a law that was
specifically targeted, to the greatest extent possible, at the
population of underage pregnant girls who would be in greatest
need of adult guidance in reaching the decision whether to
terminate pregnancy. First, the legislature exempted from the
scope of the Act all seventeen-year-old girls.4 The importance
of this exemption can hardly be overstated. Studies consistently
show that nearly half of all underage abortions are obtained by
girls who have reached the age of seventeen.5 Moreover, only one
state consent law exempts seventeen-year-olds from its scope,6
and only one state notification law does so.7 This exception
also identifies the population of teenage girls most likely
competent, by virtue of maturity and experience, to make the
decision regarding abortion without adult assistance, and allows
them to do so.
Second, the legislature exempted from the scope of the
Act four additional classes of minors. Each exemption shows that
the legislature was attempting to shape a law that would be
applied only to those pregnant girls who would most be in need of
adult help. Accordingly, the law does not apply to married
minors,8 to minors who have been legally emancipated,9 to minors
who have entered the armed services of the United States,10 and
to minors who have become employed and self-subsisting.11
Third, in an apparent effort to make certain that the
Act would not have coverage over any other underage pregnant
girls who were capable of making the decision on their own, the
legislature included a catch-all exception to the Act: any who
had otherwise become independent from the care and control of
[her] parent, guardian, or custodian.12
The legislature next created a judicial bypass
procedure to cover those cases of underage pregnancy not covered
by these exceptions. The judicial bypass procedure is designed
to be confidential, speedy, cost-free to the child, and easy to
use. The court system is directed to prepare forms for use by
the child13 without charge14 and have them available at every
court location in the state: superior court, district court, and
magistrate.15 Counsel shall immediately be made available
without charge to any minor who seeks judicial bypass16 and the
forms shall contain this notification.17 There are no filing
fees to be charged18 and no court costs assessed19 against the
child.
The proceedings surrounding judicial bypass are
strictly confidential: Courts are instructed to conduct all
proceedings so as to preserve the anonymity of the child.20
Moreover, the Act specifically directs the court that it may not
notify the parents, guardian, or custodian of the child that she
is pregnant or seeks an abortion.21 All papers and records
pertaining to the matter shall be kept confidential and are not
public records under Alaska law.22
In deference to the need for speedy resolution of the
consent question in cases where an abortion is sought, the Act
provides for extremely short timelines. The court is directed to
set the hearing at the earliest possible time and in any event
not more than five business days after the complaint is filed.23
The court is directed to enter judgment immediately after the
hearing is ended.24 If the hearing is not held by the fifth day
after the case is filed, that failure will be considered to be a
constructive authorization by the court for the child to consent
to an abortion.25 Similarly short deadlines apply to an
appeal.26
As to the substance of the inquiry that the judge must
make, it is straightforward and simple: The court determines
whether the child is sufficiently mature and informed to make the
decision to have an abortion.27 (In those cases where the minor
has alleged abuse by her parent or guardian, the court determines
whether such abuse has occurred.28) If the child is sufficiently
mature to make the decision (or if abuse has occurred and an
abortion is in the minors best interest), the court authorizes
her to consent to an abortion; if she is not sufficiently mature
to decide on her own or if there has not been abuse, the case is
dismissed.29
In sum, the Alaska Parental Consent Act appears to be
the product of a concerted effort to make certain that those
pregnant girls who are sufficiently mature to make the decision
to obtain an abortion on their own are allowed to do so while
those who are not sufficiently mature either obtain a parents
consent or, in the case of parental abuse, a judicial
determination that the procedure is in their best interest.
III. Analysis
Application of the three-part test for
constitutionality (set out above in the discussion of the
constitutional framework) has tended in this case to focus on the
third part of the test: whether the means chosen by the
legislature are sufficiently narrowly tailored to the goals of
the legislation. I agree that this inquiry is the most difficult
in this case. But I also believe that failure to focus carefully
on the nature of the interests involved can lead to a failure to
assess correctly the success of the legislatures effort to tailor
the legislation to meet its goals. For this reason, I turn now
to each step of the test for constitutionality.
A. The Individual Right To Exercise Autonomy in the
Control of Ones
Body, and in the Choice to Bear a Child Is
Fundamental.
The individual right involved in this case is the right
to privacy. While that right is often associated with the
maintenance of secrecy or confidentiality with regard to ones
affairs (and that is present to some extent in this case), the
gravamen of the individuals concerns in this case is the right to
exercise autonomy in the control of ones body. In Valley
Hospital Association v. Mat-Su Coalition for Choice,30 we relied
on the need for a woman to have control of her body, and the
choice whether or when to bear children,31 in determining that
reproductive rights are fundamental, and that they are
encompassed within the right to privacy.32
But it is important to remember that Valley Hospital
concerned the rights of adult women. Todays opinion relies on
the courts statement in its earlier decision in this case that
minors and adults start from the same constitutional footing,33
but it does not meet the promise of that earlier opinion fully to
take into account the fact that the persons to whom the statute
in this case is directed are children. In holding that
[c]onstitutional rights do not mature and come into being
magically only when one attains the state-defined age of
majority,34 the courts earlier opinion in this case hastened to
add:
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 has no place in determining
whether the parental consent or
judicial authorization act is
constitutional. To the contrary,
we have long emphasized the states
special interest in protecting the
health and welfare of children.[35]
The opinion then explained how this peculiar vulnerability of
children was to be taken into account in the constitutional
analysis: [A] statutes relationship to minors properly is
employed in the constitutional calculus in determining whether an
asserted state purpose or interest is compelling. 36 Indeed, in
support of its conclusion that minors enjoy a constitutional
right to privacy similar to that of adults, this court quoted
Justice Marshalls dissent in H.L. v. Matheson37 that, rather than
saying the minors privacy right is somehow less fundamental than
an adults, the more sensible view is that state interests
inapplicable to adults may justify burdening the minors right.38
But when the court looks to the states and parents interests in
this case, it treats them in conclusory fashion. A fuller
exposition is warranted.
B. The States Interests To Protect Children from Their
Own Immaturity and To Protect Parents Rights and Duties To
Raise Their Children Are Compelling.
Despite the promise of Planned Parenthood I to take
into account the fact that children are involved during step two
of the constitutional analysis the step that asks whether an
asserted state purpose or interest is compelling the court
today quickly passes over this step.
The courts cursory discussion of the nature of the
states compelling interests at stake in this case is inconsistent
with our case law on the right to privacy; moreover, it deprives
the courts later means-to-ends analysis of any context. Let us
consider each of these failings in turn.
In Sampson v. State,39 a privacy-based challenge to
Alaska law precluding physician-assisted suicide, we set out the
importance of carefully examining the nature of the competing
interests involved. In upholding the ban on physician-assisted
suicide, we said:
This court has often
emphasized the importance of
personal autonomy under our
constitution. Yet we have also
recognized that the rights to
privacy and liberty are neither
absolute nor comprehensive that
their limits depend on a balance of
interests. The nature of the
balance varies with the importance
of the rights actually
infringed.[40]
Because the nature of the balance varies with the importance of
the rights involved and because in the context of the case before
us now pregnant children who are considering abortion there are
important rights on both sides of the equation, including the
rights of parents to guide their children, it is particularly
important that the court look closely at the nature of the states
interests in the legislation.
The courts failure to look closely at the nature of the
states and parents interests leaves its constitutional balance
one-sided. Because the court has not fully and accurately set
out the nature of societys compelling interest in the protection
of children and of parents right and duty to raise their
children, it is impossible to accurately gauge how close the law
comes to meeting its objectives. As a detailed look at the
states interest shows, it is multi-faceted and is served in many
ways by Alaskas Parental Consent Law. It consists of at least
two41 separate aspects.
First, society has longstanding and pervasive interests
in protecting children from their own immaturity. The United
States Supreme Court has repeatedly recognized societys interest
in protecting children from their own immaturity. In Hodgson v.
Minnesota,42 the Court held: The State has a strong and
legitimate interest in the welfare of its young citizens, whose
immaturity, inexperience, and lack of judgment may sometimes
impair their ability to exercise their rights wisely.43 The
Court noted that [t]hat interest, which justifies state-imposed
requirements that a minor obtain his or her parents consent
before undergoing an operation, marrying, or entering military
service, extends also to the minors decision to terminate her
pregnancy.44 In Stanford v. Kentucky,45 Justice Brennan noted:
[M]inors are treated differently
from adults in our laws, which
reflects the simple truth derived
from communal experience that
juveniles as a class have not the
level of maturation and
responsibility that we presume in
adults and consider desirable for
full participation in the rights
and duties of modern life.
. . . Adolescents are more
vulnerable, more impulsive, and
less self-disciplined than adults,
and are without the same capacity
to control their conduct and to
think in long-range terms.[46]
State courts too have long recognized that children
require protection from their own immaturity. Pennsylvania, for
example, has noted that the states strong interest in protecting
younger minors from the sexual aggressiveness of minors over
sixteen is based on the immaturity and poor judgment of younger
minors.47 Similarly, Florida upheld a law prohibiting consensual
sexual contact between minors sixteen and older and those under
thirteen because the state had a compelling interest in
protecting twelve-year-olds from older teenagers and from their
own immaturity in choosing to participate in harmful activity.48
As Justice Matthews set out in his dissent in our
earlier consideration of this case, Planned Parenthood I:
Childrens 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 parents consent they may
not become licensed drivers or get
married or obtain general medical
or dental treatment. Alaskas
parental consent/judicial bypass
act is in the tradition of these
constraints on childrens freedoms.
. . . The act is designed to
ensure that each child makes a
decision that is best for her.[49 ]
The notion that parental consent laws further the state
interest of protecting minors from their immaturity is neither
novel nor surprising. As a matter of law society demands much of
parents; it is expected that they will assist their children in
making proper decisions until those children reach adulthood.
Parents of teenagers and younger children are familiar with the
ubiquitous permission slips which must be signed before their
children may go on a school field trip; and parental permission
is routinely required before minors may join a sports team,
before an under-seventeen minor may view an R-rated movie, and
before a minor may even lift weights at the local gym.50
Parental involvement in the everyday decisions of their children
enables parents to continue to help their children develop, even
as the children grow older and more independent. The rights and
obligations of parents to remain involved is intricately bound up
with the rights of children to receive guidance and to be
protected from their own immaturity. Courts have long recognized
these interests: [T]he custody, care and nurture of the child
reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply
nor hinder.51
For an immature pregnant minor, parental involvement is
at least as important in the difficult decision concerning
abortion as it is in the permission slip activities mentioned in
the last paragraph. In Ohio v. Akron Center for Reproductive
Health (Akron II),52 a case concerning a parental notification
requirement, the United States Supreme Court held that the
requirement furthered the states interest in helping minors to
make more mature decisions.53 Some minors may hesitate to seek
parental advice if not required to by law because they are young
and afraid. In those cases where a pregnant minor has been
abused or fears an improper parental response, the PCA carves out
a judicial bypass procedure whereby the minor may avoid all
parental notification. However, it is improper for this court to
assume that harmful parental responses will be a likely or
typical response for the minors compelled to seek parental
consent under the PCA. As Justice Kennedy noted in Akron II,
[i]t is both rational and fair for the State to conclude that, in
most instances, the family will strive to give a lonely or even
terrified minor advice that is both compassionate and mature.54
Indeed, to prohibit states from ensuring that in most cases young
women receive guidance from a parent when making this decision
would deny all dignity to the family.55 Similarly, Justice
Stevens noted that it is reasonable for a state legislature to
conclude that most parents will be primarily interested in the
welfare of their children, making the imposition of a consent
requirement an appropriate method of giving the parents an
opportunity to foster that welfare by helping a pregnant
distressed child to make and implement a correct decision.56
Because pregnant minors in Alaska will normally benefit from the
involvement of a parent in one of the most critical decisions
they can ever make, the PCA furthers the state interests of
protecting minors from their immaturity and preserving the rights
of parents to raise their children.
The PCA seeks to protect a second compelling interest
in abortion cases involving children. In addition to societys
interest in protecting children from their own immaturity, we
have long held that parents have a fundamental right in the
raising of their children. In S.O. v. W.S.,57 we noted that when
the state seeks to terminate the parent-child relationship, the
result may be the involuntary deprivation of the
fundamental natural right of parents to nurture and direct the
destiny of their children.58 S.O. relied on and quoted Turner v.
Pannick,59 in which Justice Dimond, in commenting on this
fundamental right of parents to nurture and direct the upbringing
of their children, stated: This is a truth which one discovers by
reason, and has the status of knowledge rather than mere
opinion.60 He noted that [the family] forms the basic unit of
our society and is one of the oldest institutions known to
mankind.61
In sum, the norm in American, and Alaskan, life and law
is that parents are a childs first and most important resource
for assistance in decision-making. For that reason, the states
interest in protecting children from the consequences of their
own immaturity, and in so doing protecting the health of its
children, and its interest in supporting parents right and duty
to guide the upbringing of their children is particularly
compelling.
C. The Fit Between the States Interests and the Means
Adopted To Reach Them Are Sufficiently Close To Pass
Constitutional Muster.
We now reach the third part of the constitutional
analysis. In order to survive constitutional scrutiny, the PCA
must be narrowly tailored in meeting the states interests.
Because the childs privacy interests are fundamental, there must
be no less restrictive alternative available to the state.62 As
the following shows, the PCA is narrowly tailored to its goals.
In addition, the alternatives discussed by the superior court and
todays opinion are either more restrictive than the PCA or
ineffective at meeting the states interests, or both.
1. The PCA is narrowly tailored.
Before embarking on this analysis, however, it is
important to address the majoritys assertion that the PCA bestows
upon parents what has been described as a veto power over their
minor childrens abortion decisions.63 Indeed, the claim that the
PCA gives parents a veto power runs throughout todays Opinion,64
and this supposed veto power may fairly be seen as the
fundamental weakness of the PCA in the courts view. But the
claim is false as it applies to minors who are sufficiently
mature to make the decision, and it relies on quotation of the
United States Supreme Court taken out of context. The claim is
false because a pregnant minor faced with the abortion decision
may decide to obtain an abortion without parental consent by
using the judicial bypass procedure.65 The quotation is taken
out of context because the case it comes from, Ohio v. Akron
Center for Reproductive Health, restated the Supreme Courts
clearly established precedent that, in order to prevent another
person from having an absolute veto power over a minors decision
to have an abortion, a State must provide some sort of bypass
procedure if it elects to require parental consent.66 Thus,
todays Opinions repeated assertions that the PCA gives parents a
veto power over their childs abortion decision is simply not true
as applied to children who are sufficiently mature to make the
decision. And its implication that the United States Supreme
Court would regard the PCA as giving parents a veto power is
equally wrong: Because the PCA does provide a bypass procedure,
the Act in the language of the Supreme Court prevent[s] the
parent from holding veto power.
The Parental Consent Act is very narrowly drawn to
achieve its compelling state interests. To begin, as noted
above, the PCA excludes all seventeen-year-olds.67 We have seen
that the exclusion of seventeen-year-olds is particularly
noteworthy because almost half of minor abortions are performed
on seventeen-year-old minors,68 and thus by excluding seventeen-
year-olds the legislature almost halved the pool to which the PCA
applies. We have also seen that this narrowing of the minors
covered by the Act is not arbitrary, but instead is tailored to
eliminate those least likely to need the legislation: the most
mature of the pregnant minors.
The use of age as a proxy for maturity is fundamental
to our legal system and social culture. As the Supreme Court
recently noted in Roper v. Simmons,69 the difference in maturity
levels between adults and children is evidenced by both common
sense and science:
[A]s any parent knows and as the
scientific and sociological studies
. . . tend to confirm, a lack of
maturity and an underdeveloped
sense of responsibility are found
in youth more often than in adults
and are more understandable among
the young. These qualities often
result in impetuous and ill-
considered actions and decisions. .
. . Even the normal 16-year-old
customarily lacks the maturity of
an adult. . . . [A]dolescents are
overrepresented statistically in
virtually every category of
reckless behavior. In recognition
of the comparative immaturity and
irresponsibility of juveniles,
almost every State prohibits those
under 18 years of age from voting,
serving on juries, or marrying
without parental consent.[70]
Age distinctions are not made with an expectation that
they perfectly track maturity.71 All minors under age eighteen
are prohibited from voting not because it is unfathomable that a
seventeen-year-old is capable of responsibly exercising the right
to vote, nor is the prohibition based upon the assumption that
all adults vote responsibly. Rather, the legal system accepts
lack of perfection in meeting the states interests in order to
create a feasible, more convenient, and less intrusive system of
governance. As Justice Holmes noted in Louisville Gas & Electric
Co. v. Coleman:
When a legal distinction is
determined, as no one doubts that
it may be, between night and day,
childhood and maturity, or any
other extremes, a point has to be
fixed or a line has to be drawn, or
gradually picked out by successive
decisions, to mark where the change
takes place. Looked at by itself
without regard to the necessity
behind it the line or point seems
arbitrary. It might as well or
nearly as well be a little more to
one side or the other. But when it
is seen that a line or point there
must be, and that there is no
mathematical or logical way of
fixing it precisely, the decision
of the Legislature must be accepted
unless we can say that it is very
wide of any reasonable mark.[72]
The Alaska Court of Appeals similarly noted in Allam v. State73
that [s]tatutes [that set the age for possession of tobacco,
possession of alcohol, age of consent for sexual intercourse,
etc.,] and the social policy decisions that underlie them, are
within the province of the legislature. There is no legal
requirement that the same age of majority apply to all activities
and circumstances.74 By exempting seventeen-year-olds from the
PCA, the legislature appropriately tailored the legislation to
affect the less mature population of pregnant minors.
Significantly, this narrowing of the PCA based on age
also makes it less restrictive than every other parental consent
law but one75 and less restrictive than all but one of the
notification laws in effect in other states because all the rest
apply to seventeen-year-olds,76 as discussed in more detail
below.
As noted, the legislature further tailored the PCA by
excluding four additional categories of minors: legally
emancipated minors,77 married minors,78 minors living
independently,79 and minors who are members of the armed
services.80 These are hallmarks of maturity in our society. By
excluding identifiably mature minors age sixteen and under, the
legislature went a long way towards assuring that the legislation
would not be over-inclusive. Furthermore, in these respects the
PCA is less restrictive than every other states notification laws
that do not contain these exceptions.81
The final narrowing of the PCA is derived from the
judicial bypass procedure. Although neither the superior court
nor this courts majority analyze the bypass procedure under the
least restrictive means test, the judicial bypass significantly
narrows the effect of the law because it provides a way for
mature minors who are not otherwise statutorily exempted to
obtain an abortion without parental consent. As Justice Matthews
recognized in Planned Parenthood I, the judicial bypass
procedure satisfies all the criteria established by the United
States Supreme Court in Bellotti v. Baird.82 Indeed, the
judicial bypass process was meticulously crafted with the minors
need for confidentiality and an expedited decision incorporated
into the system. The PCA errs on the side of granting the
judicial bypass whenever delay is threatened: If the superior
court fails to provide a hearing within five business days of a
minor filing the petition, the delay operates as an automatic
finding in the minors favor, resulting in a constructive waiver
of the consent requirement. Similarly, if the minor loses in the
superior court and the hearing on appeal is delayed more than
five days after the docketing of the appeal, a constructive order
must issue authorizing the minor to undergo the abortion.83
2. The PCA is the least restrictive means to achieve
the states compelling interests.
The PCA not only furthers a compelling state interest
in a manner narrowly tailored and in compliance with the federal
constitution, but it is also the least restrictive means of doing
so. The least restrictive means test is properly a difficult
burden for the state to meet, as it protects fundamental rights
against unnecessary state intrusion. However, it is not an
impossible standard for the state to meet. A mere showing that
the state might have taken less restrictive action, say, by
enacting a notification statute instead, is not sufficient to
defeat legislation absent a determination that the less
restrictive action would effectively achieve the states
compelling interests. Indeed, the least restrictive action that
a state may take in every case is not to legislate at all.
In Treacy v. Municipality of Anchorage,84 in upholding
the constitutionality of an Anchorage curfew law imposed on
minors under age eighteen, we found proposed less restrictive
alternatives to be unavailing because they were not effective in
meeting the municipalitys compelling interests.85 Alternatives
to the PCA which are less restrictive are therefore not bars to
the constitutionality of the legislation unless such alternatives
are effective in meeting the states compelling interests.
Todays opinion repeatedly proffers the alternative of
parental notification rather than parental consent, (an approach
followed by only fifteen state legislatures86 in comparison to
the twenty-six state legislatures87 that have adopted consent
statutes88).
But every one of these parental notification statutes
that lacks exceptions for seventeen-year-olds and other mature
minors is more restrictive than Alaskas PCA.89 More importantly,
such parental notification statutes fail to achieve the same
goals as consent laws, as discussed below.
The majority enthusiastically adopts the notion that a
notice statute is less restrictive than the PCA because it does
not give parents a veto power. But as shown above, the PCA does
not create a veto power because it includes a judicial bypass
provision. Moreover, the United States Supreme Court has upheld
a parental consent statute containing a judicial bypass
procedure but fewer statutory exceptions than those included in
Alaskas PCA.90 Indeed, as Justice Matthews noted in Planned
Parenthood I, [c]urrently it appears that all members of the
United States Supreme Court believe that a judicial authorization
procedure that meets the conditions of the second Bellotti case
as the PCA does is constitutional.91 In Akron II, which todays
opinion cites to support its conclusion that notice statutes are
less restrictive than consent statutes, the Court limited its
distinction between consent and notification statutes to the
central requirement that in order to prevent another person from
having an absolute veto power over a minors decision to have an
abortion, a State must provide some sort of bypass procedure if
it elects to require parental consent.92 The PCA provides such a
procedure: judicial bypass.
Indeed, notification laws may present the worst case
scenario by posing all the risks of privacy infringements of a
consent/bypass statute with fewer of its mitigating effects.
What could be further from the productive and supportive
conversation that a consent statute aims to produce than the cold
reality of parents receiving (perhaps after the abortion) a note
in the mail informing them of their daughters pregnancy and
decision to abort? It is certainly reasonable for a legislature
to conclude that consent statutes are more likely to foster
actual conversations and parental involvement rather than the one-
way, limited flow of information called for in notification
statutes. Thus, the existence of notification statutes in a
minority of states should not lead to invalidation of Alaskas
consent statute unless it is clear that a notification statute
would further the states compelling interests.
3. The legislature could reasonably conclude that
parental notification statues are not effective in
protecting a pregnant girl against her own
immaturity or in protecting her parents right and
duty to aid in her upbringing.
Despite todays Opinions rosy assertion that all
[notification statutes] prohibit minors from terminating a
pregnancy until their parents have been notified and afforded an
appropriate period of time to actively involve themselves in
their minor childrens decision-making processes,93 it is truly
questionable whether many notification statutes accomplish
anything in the way of meaningful parental notification. Many do
not even require that a parent be notified.
Thus, Delaware, identified by the majority opinion as a
notification state, allows notification of a licensed mental
health professional to substitute for parental notification.94
Maryland, ostensibly another notification state, allows the
physician performing the abortion to dispense with notification
to the childs parent if in the physicians judgment the child is
mature and capable of giving informed consent or if notification
would not be in her best interests.95 West Virginia, another
notification state, allows the physician performing the abortion
to dispense with notification if another doctor finds the child
mature enough to make the decision for herself or that
notification would not be in her best interests.96 In all states
the waiting period is so short that in many instances it will be
largely meaningless.97 Can it really be said that a requirement
that written notification be sent to a childs parent, along with
the presumption that notice is effective upon mailing and no
waiting period (e.g., Maryland98) or a twenty-four hour waiting
period (e.g., West Virginia with actual notice99) or even a forty-
eight hour waiting period (e.g., West Virginia with constructive
notice100), would in any way further the states interest in
protecting the child against her immaturity and lack of judgment
or protect the parents role in helping to raise their child? It
often will be, in truth, little more than a note sent into the
night.
The court asserts that the states compelling interests
(it refers to them only as legislative goals) are no less likely
to accompany parental notification than parental veto power. 101
Of course, as we have seen, there is no veto power in the PCA.
But more importantly, only wishful thinking supports that
conclusion. How can a statute that does not even require that
parents be notified as in Delaware, which allows notification of
a mental health professional enhance the potential for parental
consultation? Or a statute that deems notice to be effective
upon mailing and requires no waiting period or only a twenty-four
hour waiting period? The court optimistically talks of giving
[parents] notice and time to consult with and guide their
daughters through this important decision,102 but this is not
what notification statutes do. The longest waiting period in any
current notification statute measured from the time of mailing
of the notice is seventy-two hours.103 Most are substantially
shorter.104 Under these circumstances, to conclude, as todays
Opinion does, that a notification statute provides a better
chance than a consent statute that parents will engage in a
constructive and ongoing conversation with their minor children
about the important medical, philosophical, and moral issues
surrounding abortion105 is truly wishful thinking. At least
under a consent statute, where the child opts not to seek
judicial bypass, there must be a conversation. Under a
notification statute, where the child opts not to seek judicial
bypass, there is only a mailing. There is little reason to
believe that notification statutes are effective in protecting
minors from their own immaturity or effective in protecting
parents rights (and duties) to help their children negotiate the
difficult path to adulthood.
We should heed our admonition in Treacy: In analyzing
the argument that a legislative solution is not the least
restrictive one, courts must take care to require the challenger
to demonstrate that the supposedly less restrictive alternative
is actually effective in protecting the states (and parents)
compelling interests. The court today fails to show that a
notification statute will achieve the States compelling
interests. This is because, as we have seen, notification laws
are ineffective in so many ways in protecting children from their
immaturity and in protecting parents rights and obligations to
guide their childrens upbringing. And todays opinion declines
even to say whether a parental notification approach would be
constitutional.
IV. Conclusion
The Alaska Legislature carefully balanced the constitutional
right of an underage pregnant girl to privacy and the states
compelling interests in protecting children against their own
immaturity and protecting parents constitutional right (and duty)
to guide their children to maturity. Because the PCA is the
least restrictive alternative which will effectively advance the
states compelling interests while protecting the childs
constitutional right, we should hold that the superior court
erred in invalidating it. I respectfully dissent.
_______________________________
1 State, Dept of Health & Soc. Servs. v. Planned
Parenthood of Alaska, 28 P.3d 904, 906 (Alaska 2001) (noting that
we do not decide philosophical questions about abortion which we,
as a court of law, cannot aspire to answer).
2 State v. Planned Parenthood of Alaska, 35 P.3d 30, 41
(Alaska 2001) (Planned Parenthood I).
3 Ohio v. Akron Ctr. for Reproductive Health, 497 U.S.
502, 511 (1990) (citing H.L. v. Matheson, 450 U.S. 398, 411 n.17
(1981)).
4 Id.
5 Ch.14, 1-10, SLA 1997.
6 AS 18.16.010(a)(3); AS 18.16.020.
7 AS 18.16.010(c). The Act provides the doctor with an
affirmative defense to prosecution and civil liability where
compliance with the Act was not possible because an immediate
threat of serious risk to the life or physical health of the
pregnant minor from the continuation of the pregnancy created a
medical emergency necessitating the immediate performance or
inducement of an abortion. AS 18.16.010(g). We note that the
superior court interpreted this statutory language as broad
enough to contain[] an appropriate medical emergency exception.
8 AS 18.16.020(1).
9 AS 18.16.030.
10 AS 18.16.030(c). Similar time limits apply to this
courts consideration of a minors appeal from a denied petition.
AS 18.16.030(j).
11 35 P.3d 30 (Alaska 2001).
12 Id. at 41.
13 Id. at 46.
14 Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003).
15 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
(Alaska 2004).
16 Id. at 260 n.14.
17 Ravin v. State, 537 P.2d 494, 497 (Alaska 1975).
18 Planned Parenthood I, 35 P.3d at 41.
19 Cf. Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).
20 Id.
21 Because we conclude that the PCA violates the right to
privacy under the Alaska Constitution, we need not address the
plaintiffs arguments that the Act also violates the equal
protection clause or that the superior court erred in
interpreting the Act to include a medical emergency exception.
22 Luedtke v. Nabors Alaska Drilling Inc., 768 P.2d 1123,
1129 (Alaska 1989) (quoting Woods & Rhode, Inc. v. State, Dept
of Labor, 565 P.2d 138, 148 (Alaska 1977)).
23 See Ravin, 537 P.2d at 514-15 (Boochever, J.,
concurring) (reasoning that [s]ince the citizens of Alaska . . .
enacted an amendment to the Alaska Constitution expressly
providing for a right to privacy not found in the United States
Constitution, it can only be concluded that that right is broader
in scope than that of the Federal Constitution).
24 Valley Hosp. Assn v. Mat-Su Coalition for Choice, 948
P.2d 963, 968 (Alaska 1997) (internal quotations omitted).
25 Planned Parenthood I, 35 P.3d at 40 (internal
quotations omitted).
26 Id. (noting that [d]eciding 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).
27 Id.
28 The dissent appears to liken a minors decision of
whether to terminate a pregnancy to decisions about attending
school field trips, joining sports teams, viewing R-rated movies,
and lifting weights at the gym. But this analogy overlooks the
fundamental autonomy at stake in an adolescents control over her
own body. And in other important ways, a minors decision to
terminate a pregnancy is wholly unlike these decisions the
immediacy of the need to address the situation, coupled with the
lasting and profound consequences of the decision, make it
utterly unlike the day-to-day decisions mentioned by the dissent.
29 More specifically, the State asserts that the PCA aims
to (1) ensure that minors make an informed decision on whether to
terminate a pregnancy; (2) protect minors from their own
immaturity; (3) protect minors physical and psychological health;
(4) protect minors from sexual abuse; and (5) strengthen the
parent-child relationship.
30 35 P.3d at 41 (quoting Am. Acad. of Pediatrics v.
Lungren, 940 P.2d 797, 819 (Cal. 1997)) (stating that a statutes
relationship to minors properly is employed in the constitutional
calculus in determining whether an asserted state purpose or
interest is compelling ).
31 Bellotti v. Baird, 443 U.S. 622, 635 (1979).
32 See, e.g., Planned Parenthood I, 35 P.3d at 40 (noting
that we have long emphasized the States special interest in
protecting the health and welfare of children).
33 Bellotti, 443 U.S. at 637 (quoting Pierce v. Socy of
Sisters, 268 U.S. 510, 535 (1925)).
34 Id. at 638.
35 Id.
36 H.L. v. Matheson, 450 U.S. 398, 410 (1981).
37 Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).
38 Bellotti, 443 U.S. at 639 (quoting Ginsberg v. New
York, 390 U.S. 629, 639 (1968)).
39 Ohio v. Akron Ctr. for Reproductive Health, 497 U.S.
502, 511 (1990) (citing Matheson, 450 U.S. at 511 n.17).
40 Colo. Rev. Stat. Ann. 12-37.5-101 to 107; Del. Code
Ann. tit. 24, 1780-1789(B); Fla. Stat. 390.01114; Ga. Code Ann.
15-11-110 to 114; Ill. Comp. Stat. 70/1-99; Iowa Code 135L.3;
Kan. Stat. Ann. 65-6701 to 6709; Md. Code Ann., Health-Gen. 20-
103; Minn. Stat. 144.343; Mont. Code Ann. 50-20-201 to 215;
Neb. Rev. Stat. 71-6901 to 6908; Nev. Rev. Stat. 442.255; NJ
Stat. Ann. 9:17A-1.1 to 1.12; S.D. Codified Laws 34-23A-7; W.
Va. Code 16-2F-1 to 9.
41 See, e.g., Ga. Code Ann. 15-11-112(a) (prohibiting
physicians from performing an abortion on a minor unless the
physicians give either 24 hours actual notice, in person or by
telephone, to a parent or guardian or twenty-four hours written
notice, which is deemed delivered forty-eight hours after
mailing); Iowa Code 135L.3(1) (prohibiting physicians from
performing an abortion on a minor until at least forty-eight
hours prior notification is provided to a parent of the pregnant
minor).
42 AS 18.16.030(e)(f) provides that a minor may bypass the
PCAs parental consent requirement if a court determines by clear
and convincing evidence that she is sufficiently mature and well
enough informed to decide whether to have an abortion or that
parental consent would not be in her best interests.
43 See, e.g., Md. Code Ann., Health-Gen. 20-103(c)(1)
(providing that a physician may perform an abortion without
notice to a parent or guardian if, in the professional judgment
of the physician[,] . . . [n]otification would not be in the best
interest of the minor); W. Va. Code 16-2F-3(c) (providing that
parental notification may be waived by a physician, other than
the physician who is to perform the abortion, if such other
physician finds that the minor is mature enough to make the
abortion decision independently or that notification would not be
in the minors best interest).
44 State v. Koome, 530 P.2d 260, 265 (Wash. 1975) (holding
that parental consent statute violates state constitutional right
to privacy); see also Am. Acad. of Pediatrics v. Lundgren, 940
P.2d 797, 816 (Cal. 1997) (holding that parental consent law
intrude[s] upon a pregnant minors protected privacy interest
under the California Constitution).
45 Matheson, 450 U.S. at 412; see also Planned Parenthood
Assn of the Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1472-74
(11th Cir. 1991) (holding that Georgias notification statute
furthered the states interest in protecting immature minors and
promoting parental input).
1 In drafting the Alaska Parental Consent Act, the
legislature appears to have tracked carefully the requirements
for parental consent and parental notification laws set out by
the United States Supreme Court in City of Akron v. Akron Ctr.
for Reproductive Health, Inc., 462 U.S. 416 (1983); Bellotti v.
Baird, 443 U.S. 622 (1979); H. L. v. Matheson, 450 U.S. 398
(1981); Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462 U.S. 476 (1983); Planned Parenthood of Cent. Mo. v.
Danforth, 428 U.S. 52 (1976), partially overruled on other
grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833
(1992).
2 AS 18.16.020(1).
3 AS 18.16.020(2). In the event that the court fails to
act, such failure will be considered to be judicial authorization
for the abortion. AS 18.16.020(3).
4 AS 18.16.020.
5 Stanley K. Henshaw & Kathryn Kost, Parental Involvement
in Minors Abortion Decisions, 24 Family Planning Perspectives,
Sept/Oct. 1992 at Table 1. See also Letter from Susan K. Steeg,
General Counsel, Texas Department of Health (May 26, 2004)
(stating that of the 3654 minor women who obtained an abortion in
Texas in 2002, 1694 or forty-six percent of them were age
seventeen); Aida Torres, Jacqueline Darroch Forrest & Susan
Eisman, Telling Parents: Clinic Policies and Adolescents Use of
Family Planning and Abortion Services, 12 Family Planning
Perspectives, Nov/Dec 1980, 284, 287 (forty-four percent of the
1170 unmarried minor abortion patients surveyed were seventeen
years old).
6 S.C. Code Ann. 44-41-10(m) (2006).
7 Del. Code Ann. tit. 24 1782(6) (2007).
8 AS 18.16.020.
9 Id. and AS 18.16.090(2)(C).
10 AS 18.16.020, .090(2)(A).
11 AS 18.16.020, .090(2)(B).
12 AS 18.16.020, .090(2)(D).
13 AS 18.16.030(l).
14 Id.
15 AS 18.16.030(n).
16 AS 18.16.030(d). The only exception is that if the
child already has counsel. Id.
17 AS 18.16.030(n)(3).
18 AS 18.16.030(n)(1).
19 AS 18.16.030(n)(2).
20 AS 18.16.030(k).
21 AS 18.16.030(h).
22 AS 18.16.030(k).
23 AS 18.16.030(c).
24 Id.
25 Id.
26 AS 18.16.030(j). See also Alaska R. App. P. 220.
27 AS 18.16.030(e).
28 AS 18.16.030(f).
29 AS 18.16.030(e), (f).
30 948 P.2d 963 (Alaska 1997).
31 Id. at 968.
32 Id. at 969.
33 Opinion at 7; State v. Planned Parenthood of Alaska, 35
P.3d 30, 41 (Alaska 2001) (Planned Parenthood I).
34 35 P.3d at 40 (quoting Planned Parenthood of Cent. Mo.
v Danforth, 428 U.S. 52, 74 (1976)).
35 35 P.3d at 40 (footnote omitted).
36 Id. at 41 (quoting American Acad. of Pediatrics v.
Lungren, 940 P.2d 797, 819 (Cal. 1997)).
37 450 U.S. 398 (1981).
38 Id. at 441 n.32.
39 31 P.3d 88 (Alaska 2001).
40 31 P.3d at 91 (footnotes omitted).
41 The superior court actually identified six compelling
state interests in its opinion. They were as follows: (1) State
has a compelling interest in protecting minors from their own
immaturity. (2) State has a compelling interest in protecting the
physical, emotional, and psychological health of minors. (3)
State has a compelling interest in ensuring that doctors obtain
informed consent from their minor patients contemplating
pregnancy related decisions. (4) State has a compelling interest
in protecting minors from sexual abuse . . . . (5) The court
finds that the state does have many interests, some of them
compelling, in fostering and protecting the family structure . .
. . (6) This court finds that protecting rights to a civil action
is a compelling state interest.
42 497 U.S. 417 (1990).
43 Id. at 444.
44 Id. at 444-45. See also Planned Parenthood Assn of
Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 490-91 (1983)
(A States interest in protecting immature minors will sustain a
requirement of a consent substitute, either parental or
judicial.); Parham v. J. R., 442 U.S. 584, 603 (1979) (Most
children, even in adolescence, simply are not able to make sound
judgments concerning many decisions, including their need for
medical care or treatment. Parents can and must make those
judgments.); Planned Parenthood of Cent. Mo. v. Danforth, 428
U.S. 52, 102-04 (1976) (Stevens, J., concurring and dissenting)
(minors may not make enforceable bargains, work, or travel where
they please, attend exhibitions of constitutionally-protected
adult motion pictures, marry, etc.); Gallegos v. Colorado, 370
U.S. 49, 54 (1962) (holding that fourteen-year-olds criminal
confession made without advice of adult violated due process
because of childs inherent lack of maturity).
45 492 U.S. 361 (1989), overruled by Roper v. Simmons, 543
U.S. 551 (2005).
46 Id. at 395 (Brennan, J., dissenting) (quoting Twentieth
Century Fund Task Force on Sentencing Policy Toward Young
Offenders, Confronting Youth Crime 7 (1978)).
47 Commonwealth v. Albert, 758 A.2d 1149, 1154 (Pa. 2000).
48 J.A.S. v. State, 705 So. 2d 1381, 1386 (Fla. 1998).
See also In re E.G., 549 N.E.2d 322, 327 (Ill. 1989) (holding
that court should distinguish mature minors from immature minors
for purpose of determining right to refuse medical treatment
because the State has a parens patriae power to protect those
incompetent to protect themselves).
49 35 P.3d at 46-47.
50 Todays Opinion mistakenly asserts that the dissent
appears to liken a minors decision of whether to terminate a
pregnancy to decisions about attending school field trips,
joining sports teams, viewing R-rated movies, and lifting weights
at the gym and argues that the decision to terminate a pregnancy
is wholly unlike these decisions. (Opinion 10, n.28) The Opinion
misses the point entirely: Of course permission-slip decisions do
not have the lasting and profound consequences (Opinion 10, n.28)
of the abortion decision, and yet the law imposes the necessity
of parental consent upon them. If society deems parental consent
critical in such lesser matters, should not the parents play a
similar role when the consequence to the child are so vastly
greater? And in arguing that fundamental autonomy [is] at stake
in an adolescents control over her own body, (Opinion 10, n.28)
the Opinion ignores that parental consent is required for
virtually every other medical procedure involving a child. See
Hodgson v. Minnesota, 497 U.S. 417, 423 (1990) (recognizing the
common-law requirement of parental consent for any medical
procedure performed on minors.).
51 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
52 497 U.S. 502 (1990).
53 Id. at 519.
54 Id. at 520.
55 Id.
56 Planned Parenthood v. Danforth, 428 U.S. 52, 104 (1976)
(Stevens, J., concurring).
57 643 P.2d 997 (Alaska 1982).
58 Id. at 1006.
59 540 P.2d 1051 (Alaska 1975).
60 Id. at 1055 (Dimond, J., concurring).
61 Id. at 1055-56.
62 Planned Parenthood I, 35 P.3d 30, 41 (Alaska 2001).
63 Opinion 12, quoting Ohio v. Akron Ctr. for Reproductive
Health, 497 U.S. 502, 511 (1990).
64 See, e.g., Opinion at 4 (the Act effectively shifts
that minors fundamental right to choose if and when to have a
child from the minor to the parents); 4 (veto power); 12 (same);
13 (same); 15 (the PCA shifts the right to reproductive choice to
minors parents); 16 (veto power).
65 See AS 18.16.030. The judge in a bypass case must
decide whether the child is sufficiently mature and well enough
informed to decide intelligently whether to have an abortion. If
she is, the court issues an order authorizing her to consent to
the procedure without the consent of a parent, guardian, or
custodian. AS 18.16.030(e). (If she is not, the court dismisses
the case. Id. Presumably, a child found to be insufficiently
mature to make such a decision should not make it.)
66 497 U.S. at 510-11 (emphasis added). Moreover,
although the reference in todays Opinion to the use of veto power
in the United States Supreme Courts opinions in H.L. v. Matheson
and Ohio v. Akron Center is technically accurate (in the sense
that the term appears in both opinions), it is also misleading.
Ohio v. Akron Center, when it referred to Matheson, simply
established that notice statutes are not equivalent to consent
statutes for the purpose of constitutional analysis. Neither
Matheson nor Akron Center directly addressed what types of bypass
procedures are capable of curing the constitutionally fatal veto
power found in consent statutes without bypass procedures.
Instead, both Matheson and Akron Center dealt solely with the
constitutionality of parental notification statutes.
67 AS 18.16.020.
68 See supra note 5.
69 543 U.S. 551 (2005).
70 Id. at 569 (internal quotations and citations omitted).
71 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S.
52, 104-05 (1976) (Stevens, J., concurring and dissenting) (In
all . . . situations [where state legislation seeks to protect
minors from the consequences of decisions they are not prepared
to make] chronological age has been the basis for imposition of a
restraint on the minors freedom of choice even though it is
perfectly obvious that such a yardstick is imprecise and perhaps
even unjust in particular cases.).
72 277 U.S. 32, 41 (1928) (Holmes, J., dissenting).
73 830 P.2d 435 (Alaska App. 1992).
74 Id. at 438.
75 See S.C. Code Ann. 44-41-10(m) (also defining minors
as under the age of seventeen).
76 Delaware appears to be the only exception among
notification states. Del. Code Ann. tit. 24, 1782(6)
(requiring notification for those under age sixteen). But cf.
Kan. Stat. Ann. 65-6701(f) (2006); Md. Code Ann., Health-Gen.
20-103 (2005); Minn. Stat. 144.343 (2005); Mont. Code Ann. 50-
20-203(6) (2005); Neb. Rev. Stat. 71-6901(5) (2006); Nev. Rev.
Stat. 442.255 (2005); S.D. Codified Laws 34-23A-7 (2006); Tex.
Fam. Code Ann. 33.002 (2007); W. Va. Code 16-2F-2 (2007).
77 AS 18.16.020 (applying the statute only to minors
known to be unmarried . . . and unemancipated). The majority
opinion notes that a minor must prove by clear and convincing
evidence that she is sufficiently mature in order to obtain a
judicial bypass, while the standard of proof for legal
emancipation is a preponderance of the evidence. Because any
minor who has established legal emancipation is already exempted
from the scope of the PCA, however, the PCA is not over-broad on
this account. Furthermore, it is logical that a minor who cannot
prove that she is globally ready to be free from parental
supervision may nonetheless be mature on the specific issue of
the decision to terminate her pregnancy. This discrepancy in
what must be proven negates an easy comparison regarding the
burden of proof that a minor must satisfy.
78 Id.
79 AS 18.16.090(2)(B). By its express terms the PCA
provides a much broader interpretation of the term unemancipated
than Alaskas formal emancipation statute, AS 09.55.590. The term
is defined in AS 18.16.090(2):
unemancipated means that a woman who is
unmarried and under 17 years of age has not
done any of the following:
(A) entered the armed services of the United
States;
(B) become employed and self-subsisting;
(C) been emancipated under AS 09.55.590; or
(D) otherwise become independent from the
care and control of the womans parent,
guardian, or custodian.
80 AS 18.16.090(2)(A).
81 Md. Code Ann., Health-Gen. 20-103 (no exception for
emancipated minors); Kan. Stat. Ann. 65-6705 (2006) (no
exception for unemancipated minors living independently); Minn.
Stat. 144.343 (same); Mont. Code Ann. 50-20-201 to 215 (same);
Neb. Rev. Stat. 71-6901 to 6908 (same); S.D. Codified Laws 34-
23A-7 (same); Tex. Fam. Code Ann. 33.001 to 011 (same); W. Va.
Code 16-2F-1 to 9 (same).
82 35 P.3d at 51-52 (Matthews, C.J. , dissenting) (citing
to Bellotti, 443 U.S. 622 (1979)) (noting that (1) proceedings
must except minor from any parental consent requirements if minor
can establish she is mature enough to make abortion decision, or
that requiring consent is not in her best interests and (2)
proceedings must be completed with anonymity and sufficient
expedition).
83 AS 18.16.030(j).
84 91 P.3d 252 (Alaska 2004).
85 Id. at 267.
86 Colo. Rev. Stat. Ann. 12-37.5-101 to 107 (West 2007);
Del. Code Ann. tit. 24, 1780 to 1789B; Fla. Stat. 390.01114
(West 2007); Ga. Code Ann. 15-11-110 to 118 (West 2007); 750
Ill. Comp. Stat.Ann. 70/1 to 99 (West 2007); Iowa Code Ann.
135L.3 (West 2007); Kan. Stat. Ann. 65-6701 to 6709; Md. Code
Ann., Health-Gen. 20-103; Minn. Stat. 144.343; Mont. Code Ann.
50-20-201 to 215; Neb. Rev. Stat. 71-6901 to 6908; Nev. Rev.
Stat. 442.255; N.J. Stat. Ann. 9:17A-1.1 to 1.12 (West 2007);
S.D. Codified Laws 34-23A-7; W. Va. Code 16-2F-1 to 9 (2006).
Oklahoma, Texas, and Utah, not counted here, require both
notification and consent. Okla. Stat. Ann. tit . 63, 1-740.2
(West 2006); Tex. Fam. Code Ann. 33.001 to .011; Tex. Occ. Code
Ann. 164.052(a)(19); Utah Code Ann. 76-7-304, 76-7-304.5 (West
2006).
87 Ala. Code 26-21-1 to 8 (1992); Ariz. Rev. Stat. Ann.
36-2152 (2006); Ark. Code Ann. 20-16-801 to 810 (West 2006);
Cal. Health & Safety Code 123450 (West 2007); Idaho Code Ann.
18-609A (West 2007); Ind. Code 16-34-2-4 (West 2006); Ky. Rev.
Stat. Ann. 311.720, 311.732 (West 2006); La. Stat. Ann.
40:1299.35.5 (2006); Me. Rev. Stat. Ann. tit. 22, 1597-A (2006);
Mass. Gen. Laws ch. 112, 12S (2004); Mich. Comp. Laws Ann.
722.901 to 722.909 (West 2006); Miss. Code Ann. 41-41-53 (West
2006); Mo. Ann. Stat. 188.028 (West 2006); N.C. Gen. Stat. Ann.
90-21.6 to 90.21.10 (West 2006); N.D. Cent. Code 14-02.1 to 03.1
(2005); Ohio Rev. Code Ann. 2919.121 (West 2006); Okla. Stat.
Ann. tit. 63, 1-740.2 (West 2006); 18 Pa. Cons. Stat. Ann. 3206
(West 2006); R.I. Gen. Laws 23-4.7-6 (2006); S.C. Code Ann.
44-41-31 (2006); Tenn. Code Ann. 37-10-301 to 308 (2005); Tex.
Fam. Code Ann. 33.001 to .011; Tex. Occ. Code Ann.
164.052(a)(19); Utah Code Ann. 76-7-304, 76-7-304.5; Va. Code
Ann. 16.1-241(V) (West 2006); Wis. Stat. Ann. 48.375 (West
2005); Wyo. Stat. Ann. 35-6-118 (2006).
88 Three states, Oklahoma, Texas, and Utah, have adopted
both consent and notification statutes.
89 See Treacy, 91 P.3d at 267.
90 See Planned Parenthood Assn of Kansas City, Mo., Inc.
v. Ashcroft, 462 U.S. 476, 493-94 (1983).
91 35 P.3d at 51 (Matthews, J., dissenting). It should be
noted that since those words were written, Chief Justice John
Roberts and Justice Samuel Alito have replaced Chief Justice
William Rehnquist and Justice Sandra Day OConnor.
92 497 U.S. 502, 510-11 (1990).
93 Opinion 13.
94 Del. Code. Ann. tit. 24 1783(a).
95 Md. Code. Ann., Health-Gen. 20-103(c)(1)(ii), (iii).
96 W. Va. Code 16-2F-3(c).
97 The waiting periods range between twenty-four hours
(Delaware, West Virginia (twenty-four hours after actual notice),
Georgia, Kansas, and Utah) and forty-eight hours (West Virginia
(forty-eight hours after mailing notice), Iowa, Colorado,
Illinois, Minnesota, Nebraska, South Dakota, Texas, Montana).
98 Md. Code. Ann., Health-Gen. 20-103.
99 W. Va. Code. 16-2F-3(a).
100 Id.
101 Opinion 16.
102 Id. at 13.
103 See Ga. Code Ann. 15-11-112(a) (written notice deemed
delivered forty-eight hours after mailing; abortion may be
performed twenty-fours hours after).
104 See, e.g., Del. Code Ann. tit. 24 1783; Ga. Code Ann.
112(a)(1)(B); Utah Code Ann. 76-7-304(3); W. Va. Code Ann. 16-
25-3(a) (all requiring a waiting period of only twenty-four
hours).
105 Opinion 16.
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