| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Planned Parenthood of the Great Northwest v. State (7/22/2016) sp-7114
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
PLANNED PARENTHOOD OF )
THE GREAT NORTHWEST, ) Supreme Court Nos. S-15010/15030/
JAN WHITEFIELD, M.D., and ) 15039 (Consolidated)
SUSAN LEMAGIE, M.D., )
) Superior Court No. 3AN-10-12279 CI
Appellants and )
Cross-Appellees,
) O P I N I O N
)
v.
) No. 7114 - July 22, 2016
)
STATE OF ALASKA, LOREN )
LEMAN, MIA COSTELLO, and )
KIM HUMMER-MINNERY, )
)
Appellees and )
Cross-Appellants. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge.
Appearances: Susan Orlansky, Feldman Orlansky &
Sanders, and Thomas Stenson, ACLU of Alaska Foundation,
Anchorage, Janet Crepps, Center for Reproductive Rights,
Simpsonville, South Carolina, Talcott Camp and Andrew
Beck, ACLU Foundation, and Diana O. Salgado, Planned
Parenthood Federation of America, New York, New York,
and Laura F. Einstein, Planned Parenthood of the Great
Northwest, Seattle, Washington, for Appellants/Cross-
Appellees. Margaret Paton Walsh and Dario Borghesan,
Assistant Attorneys General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau for Appellee/Cross-
Appellant State of Alaska. Kevin G. Clarkson and
----------------------- Page 2-----------------------
Matthew C. Clarkson, Brena, Bell & Clarkson, P.C.,
Anchorage for Appellees/Cross-Appellants Loren Leman,
Mia Costello, and Kim Hummer-Minnery. Allison Mendel,
Mendel & Associates, Inc., Anchorage, and Lourdes M.
Rosado,JuvenileLawCenter,Philadelphia,Pennsylvania,for
Amici Curiae Juvenile Law Center, Legal Voice, and
National Center for Youth Law. Kimberly A. Parker and
Joshua S. Press, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C., for Amici Curiae American College of
Obstetricians and Gynecologists, American Congress of
Obstetricians and Gynecologists, National Association of
Social Workers, Alaska Chapter, Society for Adolescent
Health and Medicine, and American Psychiatric Association.
Christina Passard, The Law Office of Christina M. Passard,
P.C., Anchorage, and Mailee R. Smith, Americans United for
Life, Washington, D.C., for Amicus Curiae Alaska Family
Action. Mario Bird, Ross & Minor, P.C., Anchorage, for
Amicus Curiae Alaskan Doctors for Parental Notice.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
FABE, Chief Justice, joined in part by Maassen and Bolger, Justices,
concurring.
STOWERS, Justice, dissenting.
I. INTRODUCTION
Alaska's medical emancipation statute historically allowed minors to
consent to pregnancy-related health care subject to an express exception for pregnancy
termination. In 2001 we held that under the Alaska Constitution's broad privacy
guarantee a pregnant minor has the same fundamental privacy right to reproductive
choice as an adult, and in 2007 we held that right cannot be conditioned on another's
consent. The 2007 ruling allowed minors to obtain all pregnancy-related health care -
including pregnancy termination - without parental consent.
-2- 7114
----------------------- Page 3-----------------------
But in that 2007 ruling we recognized that the State of Alaska has
compelling interests in aiding parents to help their minor children make informed and
mature pregnancy-related decisions, and we indicated that a parental notification law
might be implemented without unduly interfering with minors' fundamental privacy
rights. The2010voter-enacted Parental Notification Law -generallyrequiring48-hour
advance parental notice before a physician may terminate a minor's pregnancy -
revived the exception in theexisting medical emancipation statute, creating considerable
tension between a minor's fundamental privacy right to reproductive choice and how the
State may advance its compelling interests.
In this case we must decide whether the Notification Law violates the
Alaska Constitution, and we are presented with two specific and distinctly different
questions: (1) Does the Notification Law violate the Alaska Constitution's equal
protection guarantee by unjustifiably burdening the fundamental privacy rights only of
minors seeking pregnancy termination, rather than applying equally to all pregnant
minors? (2) If the Notification Law does not violate the Alaska Constitution's equal
protection guarantee, does it violate the Alaska Constitution's privacy guarantee by
unjustifiably infringing on the fundamental privacy rights of minors seeking to terminate
a pregnancy?
We conclude that the Notification Law violates the Alaska Constitution's
equal protection guarantee and cannot be enforced. But the decision we reach today is
narrow in light of the limited State interests offered to justify the Notification Law. The
State expressly disclaims any interest in how a minor exercises her fundamental privacy
right of reproductive choice, and it does not suggest that it has an interest in limiting
abortions generally or with respect to minors specifically. And as a court we are not
concerned with whether abortion is right, wrong, moral, or immoral, or with whether
abortions should be available to minors without restriction. We are concerned only with
-3- 7114
----------------------- Page 4-----------------------
whether, given its stated underlying justifications , the current Notification Law complies
with the Alaska Constitution's equal protection guarantee - and it does not.
II. FACTS AND PROCEEDINGS
A. Early Statutory Backdrop
In 1968 the legislature enacted a medical emancipation statute allowing a
physician to "examine a female minor over the age of 15 years with regard to pregnancy"
1 But at that time a carry-over territorial criminal statute made
without parental consent.
abortion illegal "unless . . . necessary to preserve the life of the mother."2
In 1970 the legislature rewrote the criminal statute to allow certain
abortions by licensed physicians in approved medical facilities.3 But a portion of the
criminal statute, AS 11.15.060(a)(3), expressly required parental consent before "an
unmarried woman less than 18 years of age" legally could obtain an abortion.4 In 1974
the legislature rewrote the medical emancipation statute to more broadly cover
pregnancy-related medical care - except abortion - by stating that subject to
AS 11.15.060(a)(3) "a minor may give consent for diagnosis, prevention or treatment of
pregnancy."5
In1976,presumably inreaction to then-recent United StatesSupremeCourt
decisions, the Alaska Attorney General issued an informal opinion on the validity of
1 Ch. 204, § 1, SLA 1968; former AS 09.65.100 (1968).
2 See former AS 11.15.060 (1962); § 65-4-6 Alaska Compiled Laws
Annotated (1949).
3 Ch. 103, § 1, SLA 1970; former AS 11.15.060(a)(1)-(2) (1970).
4 Former AS 11.15.060(a)(3) (1970).
5 Ch. 73, § 1, SLA 1974; former AS 09.65.100(a)(4) (1974) renumbered as
AS 25.20.025.
-4- 7114
----------------------- Page 5-----------------------
portions of AS 11.15.060. 6 The Attorney General concluded that the parental consent
provision was a "clearly unconstitutional" infringement of minors' fundamental privacy
rights under the United States Constitution because it was a blanket ban - regardless of
a minor's actual capacity or maturity - and it applied even when an abortion might be
necessary to save a minor's life. 7
In 1980 the legislature removed AS 11.15.060 from the criminal statutes
and renumbered it as AS 18.16.010, but did not respond to the Attorney General's 1976
opinion that the parental consent provision violated the United States Constitution.8 The
parental consent provision remained in place as AS 18.16.010(a)(3) until amended with
the enactment of the 1997 Parental Consent Act.9 The relevant provision of the medical
emancipation statute has not changed - other than replacing the exception's original
10 - although it
reference to AS 11.15.060(a)(3) with a reference to AS 18.16.011(a)(3)
was renumbered in 1994.11
B. Early Constitutional Backdrop
In 1972 voters added the following provision to the Alaska Constitution:
"The right of the people to privacy is recognized and shall not be infringed."12 In 1997
6 1976 INFORMAL OP. ATT'Y GEN. (Oct. 21).
7 Id. at 3-6, 7.
8 Ch. 166, § 22, SLA 1978 (effective Jan. 1, 1980). The statute later was
reorganized. See AS 18.16.010 (1986).
9 Ch. 14, §§ 2, 3, 6, SLA 1997.
10 Ch. 166, § 22, SLA 1978 (effective Jan. 1, 1980).
11 See AS 25.20.025(a)(4) (1994).
12 Alaska Const. art. I, § 22; Valley Hosp. Ass'n v. Mat-Su Coal. for Choice,
(continued...)
-5- 7114
----------------------- Page 6-----------------------
weexamined this express privacyprovision inthecontext ofpregnancy-relateddecisions
and held that a woman's fundamental privacy right to reproductive choice is more
13 And
broadly protected by the Alaska Constitution than the United States Constitution.
15 years ago, in the constitutional equal protection context, we noted that "political
disapproval" alone cannot justify treating women differently based upon how they
exercise their reproductive choices.14
C. The 1997 Parental Consent Act
Shortly before our 1997 decision regarding a woman's broad fundamental
privacy right to reproductive choice under the Alaska Constitution, the legislature
enacted the Parental Consent Act.15
The Consent Act amended AS 18.16.010(a)(3) to
generally require parental consent before a minor under age 17 could terminate a
pregnancy and added other provisions addressing the federal constitution privacy
16
concerns the Supreme Court and the Alaska Attorney General raised in the mid-1970s.
12 (...continued)
948 P.2d 963, 968 (Alaska 1997).
13
Valley Hosp. Ass'n, 948 P.2d at 966-69.
14 State, Dep't of Health &Soc. Servs. v. Planned Parenthood of Alaska, Inc.,
28 P.3d 904, 905 (Alaska 2001) (stating that "political disapproval" does not justify
denying Medicaid coverage to women seeking abortions when coverage is granted to
women seeking to carry to term). See also Alaska Const. art. I, § 1 (providing that all
persons are "entitled to equal rights, opportunities, and protection under the law").
15 Ch.14, §§ 1-10, SLA 1997; see also former AS 18.16.010(a)(3) (2004);
former AS 18.16.020 (2004).
16 Ch.14, §§ 1-10, SLA 1997; cf. INFORMAL OP. A TT'Y GEN., supra note 6 at
3-6, 7.
-6- 7114
----------------------- Page 7-----------------------
17
The Consent Act's constitutionality soon was challenged. The superior court enjoined
the State from enforcing the Consent Act, summarily concluding that it violated the
18 The State appealed, and in Planned
Alaska Constitution's equal protection guarantee.
19 But we acknowledged that under the Alaska
Parenthood I we remanded for a full trial.
Constitution pregnant minors have the same fundamental privacy right to reproductive
choice as pregnant adults:
The "uniquely personal" physical, psychological, and
economic implications of the abortion decision that we
described in Valley Hospital 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 . . . .[20]
After trial the superior court concluded that the Consent Act violated both
the privacy and equal protection guarantees of the Alaska Constitution, and again
enjoined the State from enforcing the Consent Act.21 The State appealed, and in Planned
Parenthood II we held that although the State had shown compelling interests "in
protecting minors from their own immaturity" and in "aiding parents to fulfill their
parental responsibilities," the Consent Act was not the least restrictive means of
17 See State v. Planned Parenthood of Alaska (Planned Parenthood I ), 35
P.3d 30, 32-33 (Alaska 2001).
18 Id. at 33; see Alaska Const. art. I, § 1 (guaranteeing "equal rights,
opportunities, and protection under the law").
19 Planned Parenthood I, 35 P.3d at 46.
20 Id. at 40 (footnote omitted), quoted with approval in State v. Planned
Parenthood of Alaska (Planned Parenthood II), 171 P.3d 577, 582 & n.26 (Alaska
2007).
21 Planned Parenthood II, 171 P.3d at 580-81.
-7- 7114
----------------------- Page 8-----------------------
22
furthering those interests. We explained that requiring parental notification before
terminating a minor's pregnancy could effectively meet the State's interests while
23 Because we
imposing a lower burden on the minor's constitutional privacy right.
concluded that the Consent Act was an unconstitutional infringement on fundamental
privacy rights,24 effectively ruling that all pregnant minors - not just those seeking to
carry to term - were covered equally by the medical emancipation statute, we had no
reason to address the equal protection question arising from the Consent Act.25
D. The Parental Notification Law
After our Planned Parenthood II decision, Loren Leman, MiaCostello, and
26
KimHummer-Minnery (theSponsors) sponsored aparentalnotificationvoterinitiative.
27
In August 2010 voters approved the initiative, titled the Parental Notification Law,
28 A parental
constructed by amending the existing but unenforceable Consent Act.
notification component was placed in AS 18.16.010(a)(3),29
thus reviving the medical
22 Id. at 582-83, 585.
23 Id. at 584-85.
24 Id. at 583-86.
25 See id. at 581 n.21, 585 ("Because we conclude that the [Consent Act]
violates the right to privacy under the Alaska Constitution, we need not address
[whether] the Act also violates the equal protection clause . . . .").
26 See Planned Parenthood of Alaska v. Campbell, 232 P.3d 725, 727 (Alaska
2010) (discussing the initiative's procedural history).
27 AS 18.16.010-.040.
28 Alaska Laws Initiative Meas. 2 (Bal. Meas. 2), 26th Leg., 2d Sess. (2010).
29 AS 18.16.010(a)(3) generally provides that a physician may not perform
an abortion for a "pregnant, unmarried, unemancipated woman under 18"absent advance
(continued...)
-8- 7114
----------------------- Page 9-----------------------
emancipation statute's differential treatment of pregnant minors based on how they
exercised their fundamental privacy right of reproductive choice. 30
The Notification Law applies to unemancipated, unmarried minors under
31 It includes specific requirements for parental
age 18 seeking to terminate a pregnancy.
notification,32 a 48-hour mandatory waiting period between parental notification and the
29 (...continued)
parental notice or judicial authorization to proceed without parental involvement, as set
forth in related Notification Law provisions.
30 Cf. AS 25.20.025(a)(4) ("Except as prohibited under AS 18.16.010(a)(3)"
minors may give consent to pregnancy-related health care.).
31 AS 18.16.020(a) (prohibiting, absent parental notice or other exception,
persons from performing or inducing an abortion upon "a minor who is known . . . to be
pregnant, unmarried, under 18 years of age, and unemancipated").
32 AS 18.16.020(b) provides in part:
An individual designated by the physician may initiate the
notification process, but the actual notice shall be given by
the physician. The physician giving notice of the abortion
must document the notice or attempted notice in the minor's
medical record and take reasonable steps to verify that the
person to whom the notice is provided is the parent, legal
guardian, or custodian of the minor seeking an abortion.
Reasonable steps to provide notice must include
(1) if in person, requiring the person to show
government-issued identification along with additional
documentation of the person's relationship to the minor;
additional documentation may include the minor's birth
certificate or a court order of adoption, guardianship, or
custodianship;
(2) if by telephone, initiating the call, attempting to
verify through a review of published telephone directories
(continued...)
-9- 7114
----------------------- Page 10-----------------------
33
termination of a minor's pregnancy (absent a parent's earlier written consent), and
criminal and civil penalties for any physician who terminates a minor's pregnancy
without complying with the notification requirements. 34
The Notification Law includes an exception for certain medical
35 It also includes two provisions for bypassing parental notification.36
emergencies.
32 (...continued)
that the number to be dialed is that of the minor's parent,
legal guardian, or custodian, and asking questions of the
person to verify that the person's relationship to the minor is
that of parent, legal guardian, or custodian; when notice is
attempted by telephone [but is unsuccessful, the physician or
designee] shall continue to initiate the call, in not less than
two-hour increments, for not less than five attempts, in a
24-hour period.
AS 18.16.020(c) provides that if the attempts required under AS 18.16.020(b) are
unsuccessful, then the physician:
may provide constructive notice to the minor's parent, legal
guardian, or custodian. Constructive notice is considered to
have been given 48 hours after the certified notice is mailed.
In this subsection, "constructive notice" means that notice of
the abortion was provided in writing and mailed by certified
mail, delivery restricted to addressee only, to the last known
address of the parent, legal guardian, or custodian after taking
reasonable steps to verify the mailing address.
33 See AS 18.16.020(a)(1)(A)-(B).
34 AS 18.16.010(c) (providing fines of up to $1,000 and/or imprisonment up
to five years); AS 18.16.010(e) (providing civil liability for compensatory and punitive
damages to the minor and the minor's parents, guardian, or custodian).
35 AS 18.16.010(g)(3) (defining "medical emergency" as "necessary to avert
the minor's death" or when delay "will create serious risk of medical instability caused
(continued...)
-10- 7114
----------------------- Page 11-----------------------
37
First, with the assistance of a court-appointed attorney, a minor may seek a judge's
38
permission to bypass the notification requirement.
Permission will be granted if the
39 that she is mature enough to make the
minor proves by clear and convincing evidence
40 Second, an
decision without parental notice or consent or that her parents are abusive.
abused minor may bypass the notification requirement by providing to her physician
notarized statements from herself and a witness regarding the abuse.41 If an abused
35 (...continued)
by a substantial and irreversible impairment of a major bodily function").
36 See AS 18.16.030; AS 18.16.020(a)(4).
37 AS 18.16.030(d), (n)(3).
38 AS 18.16.030.
39 AS 18.16.030(e), (f).
40 AS 18.16.030(b)(4) provides that permission to bypass the notification
requirement will be granted if the minor proves:
(A) that [she] is sufficiently mature and well e nough
informed to decide intelligently whether to have an abortion
without notice to . . . a parent, guardian, or custodian; or
(B) that one or both of the minor's parents or the
minor's guardian or custodian was engaged in physical
abuse, sexual abuse, or a pattern of emotional abuse against
the minor . . . .
41 AS 18.16.020(a)(4) allows minors who are victims of "physical abuse,
sexual abuse, or a pattern of emotional abuse committed by one or both of the minor's
parents or by a legal guardian or custodian of the minor" to bypass notification by
providing signed and notarized statements to the physician from the minor and from a
witness with "personal knowledge" documenting the abuse. The witness must be a law
enforcement officer, an Alaska Department of Health and Social Services representative
who has investigated the abuse, or the minor's sibling over the age of 21, grandparent,
(continued...)
-11- 7114
----------------------- Page 12-----------------------
minor pursues this option, then the physician must report the abuse to the Alaska
Department of Health and Social Services. 42
E. This Case
Planned Parenthood of the Great Northwest and two doctors who perform
abortions in Alaska (collectively Planned Parenthood) sought to enjoin enforcement of
the Notification Lawonthe grounds that it violates the Alaska Constitution's privacy and
equal protection guarantees. The Sponsors intervened to defend the Notification Law.
The superior court denied a requested preliminary injunction against the law as a whole,
although it preliminarilyenjoinedseveral"peripheralfeatures": criminal punishment and
civil liability for physicians; the requirement that only the physician - not an assistant
- notify parents; the requirement that parents show government-issued identification
during in-person notification to document that they are the minor's parents; and the clear
and convincing evidence standard for the judicial bypass procedure.
After trial the superior court made broad findings of fact on a number of
issues, including how the Notification Law had functioned for the 14 months between
its effective date and the trial. The court rejected Planned Parenthood's argument that
the Notification Law violates equal protection by treating pregnant minors seeking
termination differently from those seeking to carry to term. The court stated that
Alaska's medical emancipation statute encourages pregnant minors to seek medical care
which they otherwise might avoid for fear of parental involvement, and then reasoned
that "once a minor elects an imminent abortion, the core rationale underpinning medical
emancipation no longer applies to her; she no longer requires encouragement to see a
41 (...continued)
or stepparent. No other witnesses are permitted. AS 18.16.020(a)(4)(B).
42 AS 18.16.020(d); see also AS 47.17.020; AS 47.17.290(6).
-12- 7114
----------------------- Page 13-----------------------
doctor to protect her own health and that of her fetus." The court therefore concluded
that minors seeking pregnancy termination are not similarly situated to minors seeking
to carry to term, and that the Notification Law's effective disparate application of the
medical emancipation statute "does not violate Alaska's equal protection clause."
The superior court also analyzed whether the Notification Law violates
minors' constitutional privacy rights and concluded that parts of the law are
constitutional but others are not. The court vacated its preliminary injunction against
some provisions, including the criminal sanctions for physicians and the parental-
documentation requirement; it issued a permanent injunction against others, including
the imposition of civil liability on physicians, the requirement that physicians personally
notify parents, and the clear and convincing evidence standard for judicial bypass of the
notification requirement.
The superior court issued a final judgment, and the clerk of court then
awarded the State and the Sponsors their trial costs. The superior court later vacated the
cost awards, concluding that both sides were prevailing parties on a main issue in the
case and that no cost awards should be made.
Planned Parenthood appeals the superior court's ruling upholding the
majority of the Notification Law, arguing for reversal on both equal protection and
privacy grounds. The State and the Sponsors appeal the court's decision to strike some
oftheNotificationLaw's provisions, arguing that those provisions do not violateminors'
constitutional privacy rights; they also appeal the costs ruling.
-13- 7114
----------------------- Page 14-----------------------
III. STANDARD OF REVIEW
43
We apply our independent judgment to equal protection claims.
In an
equal protection analysis we must identify and assess the nature and importance of the
competing personal and governmental interests at stake, identify the relevant level of
scrutiny for governmental action, and assess the means chosen to advance governmental
44
interests. These are questions of law to which we apply our independent judgment,
45
adopting "the rule of law 'most persuasive in light of precedent, reason, and policy.' "
46
Underlying findings of fact are reviewed for clear error.
IV. DISCUSSION
We begin by noting that a challenge to a statute "must overcome a
presumption of constitutionality."47 When a statute's constitutionality is facially
challenged, we will uphold the statute even if it might occasionally create constitutional
43 Matanuska-Susitna Borough Sch. Dist. v. State , 931 P.2d 391, 397 (Alaska
1997) ("This court exercises its independent judgment in deciding equal protection
claims.").
44 State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014) (quoting Alaska Civil
Liberties Union v. State, 122 P.3d 781, 785 (Alaska 2005)).
45 Id. (quoting State v. Anthony, 810 P.2d 155, 156-57 (Alaska 1991)).
46 See Planned Parenthood II, 171 P.3d 577, 581 (Alaska 2007) (stating in
context of constitutional challenge that "[w]e review the superior court's factual
determinations for clear error" (citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska
2003))). The parties dispute whether we should review the superior court's findings of
"constitutional" or "legislative" facts de novo or for clear error. Because we are not
persuaded that the superior court's factual findings on which we rely would be erroneous
under either standard, we do not need to address this dispute.
47 Schmidt, 323 P.3d at 655 (quoting Alaska Civil Liberties Union , 122 P.3d
at 785); see also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192
(Alaska 2007).
-14- 7114
----------------------- Page 15-----------------------
48
problems in its application, as long as it "has a plainly legitimate sweep." But a statute
49
infringing on a constitutionally protected right deserves close attention.
And our duty
to uphold the Alaska Constitution is paramount; it takes precedence over the politics of
50
the day and our own personal preferences.
48 Planned Parenthood II , 171 P.3d at 581 (quoting Treacy v. Municipality
of Anchorage , 91 P.3d 252, 260 n.14 (Alaska 2004)); see also Haggblom v. City of
Dillingham, 191 P.3d 991, 998 (Alaska 2008) ("We will not hold a statute void for
vagueness if the statute has been shown to have a 'plainly legitimate sweep.' " (quoting
Treacy, 91 P.3d at 260 n.14)); Planned Parenthood I , 35 P.3d 30, 34-35 (Alaska 2001)
(concluding that our previous standard - that a statute will be upheld unless there is "no
set of circumstances . . . under which" it would be constitutional - is not a "rigid
requirement" (quoting Javed v. State, Dep't of Pub. Safety , 921 P.2d 620, 625 (Alaska
1996))).
Evenunderthestricter "no set ofcircumstances"analysis,only theeffective
applications of a statute authorizing or prohibiting conduct should be considered. Los
Angeles v. Patel , 135 S.Ct. 2443, 2450-51 (2015). A law is measured for constitutional
validity "by its impact on those whose conduct it affects," and the proper constitutional
inquiry focuses on "the group for whom the law is a restriction, not the group for whom
the law is irrelevant." Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 894
(1992).
49 See, e.g., State, Dep't of Health & Soc. Servs. v. Planned Parenthood of
Alaska, Inc. , 28 P.3d 904, 912 (Alaska 2001) ("Because [the regulation] infringes on a
constitutionally protected interest, the State bears a high burden to justify the
regulation."); Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1261
(Alaska 1980) (noting strict scrutiny applies "when fundamental rights are at stake"); see
also Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620, 633 (N.J. 2000) (stating
governmental burden on fundamental right "is deserving of the most exacting scrutiny").
50 See Alaska Const. art. XII, § 5 (requiring public officers to swear to
"support and defend . . . the Constitution of the State of Alaska"); Malone v. Meekins,
650 P.2d 351, 356 (Alaska 1982) ("[T]he judicial branch . . . has the constitutionally
mandated duty to ensure compliance with the provisions of the Alaska Constitution
. . . ."), quoted with approval in Planned Parenthood of Alaska, 28 P.3d at 913.
-15- 7114
----------------------- Page 16-----------------------
Finally, relevant to today's issues, our opening statement in Planned
Parenthood II bears repeating:
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. We are focused only on upholding the
constitution and laws of the State of Alaska. [51]
A. Equal Protection
1. Planned Parenthood II 's non-effect on the challenge
The State, the dissent - and to a lesser degree the concurring opinion -
assert that our Planned Parenthood II decision forecloses an equal protection challenge
to the Notification Law; the State argues that "[w]hen this Court held in Planned
Parenthood II that a parental notification law was a constitutional option that was less
restrictive than the parental consent law, by implication it also rejected [the current]
equal protection challenge." We disagree.
In Planned Parenthood II we held that the Consent Act was an
unconstitutional infringement on pregnant minors' constitutional privacy rights because
a notification statute potentially could be a less restrictive alternative furthering the
State's compelling interests.52 Although in that decision's introduction we made the
broad conclusory statement that "the constitution permits a statutory scheme which
51 Planned Parenthood II, 171 P.3d at 579 (footnote omitted) (quoting
Planned Parenthood of Alaska , 28 P.3d at 906).
52 See id. at 583-85.
-16- 7114
----------------------- Page 17-----------------------
ensures that parents are notified so that they can be engaged in their daughters' important
53
decisions in [pregnancy-related] matters,"
our holding addressed only the fundamental
54 Weexplainedthat "although parentalnotificationstatutesundoubtedly
right to privacy.
burden the privacy rights of minors," they would present potentially less restrictive
alternatives than consent laws under a fundamental privacy right analysis.55 We did not
address other constitutional issues which might arise from a notification law - indeed,
a notification law was merely hypothetical at that point.56 And because our privacy
ruling involving the consent law effectively placed all pregnant minors on an equal plane
under the medical emancipation statute, we did not address the equal protection
challenge to the Consent Act.57
The dissent and the concurring opinion unreasonably conclude we
suggested that any parental notification law would pass constitutional equal protection
muster - sight unseen and without regard to either its stated justification or the factual
underpinning for that justification - even though we engaged in no equal protection
analysis whatsoever regarding parental notification laws. Our actual conclusion that a
parental notification law might survive a constitutional privacy challenge does not mean
53 Id. at 579.
54 Id. at 584.
55 Id. (emphasis added).
56 See generally id.
57 Id. at 581 n. 21, 585 ("Because we conclude that the [Consent Act] violates
the right to privacy under the Alaska Constitution, we need not address [whether] the Act
also violates the equal protection clause . . . .").
-17- 7114
----------------------- Page 18-----------------------
58
that every conceivable notification law will do so. Nor does it mean that every
conceivable notification law will satisfy the separate and independent constitutional
equal protection standard. In the fundamental rights context there is a significant
difference between Alaska's privacy and equal protection guarantees: The privacy
clause guarantees that the State may not infringe upon an individual's fundamental right
of personal autonomy unless a compelling governmental interest justifies the
infringement; in contrast the equal protection clause guarantees that the State may not
discriminate between individuals with respect to a fundamental rightunless a compelling
59
governmental interest justifies the discrimination.
The dissent and the concurring opinion also fail to recognize governing
60 involving a constitutional challenge to
precedent from Sands ex rel. Sands v. Green,
61 Earlier, in Evans ex rel. Kutch
1997's reformed statute of limitations tolling provision.
58 The concurring opinion's conclusion that the Notification Law is
unconstitutional under a privacy rights analysis should make this abundantly clear.
59 Compare Alaska Const. art. I, § 22 ("The right of the people to privacy is
recognized and shall not be infringed."), and Ranney v. Whitewater Eng'g, 122 P.3d 214,
221 (Alaska 2005) ("The right of privacy protects 'fundamental rights of personal
autonomy' . . . ." (quoting Sampson v. State, 31 P.3d 88, 94 (Alaska 2001))), with Alaska
Const. art. I, § 1 ("[A]ll persons are equal and entitled to equal rights, opportunities, and
protection under the law . . . ."), and State, Dep't of Health & Soc. Servs. v. Planned
Parenthood of Alaska, 28 P.3d 904, 909 (Alaska 2001) ("Alaska's constitutional equal
protection clause . . . protects Alaskans' right to non-discriminatory treatment . . . .");
also compare Ravin v. State, 537 P.2d 494, 504 (Alaska 1975) (fundamental rights
analysis), with Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271,
1278-79 (Alaska 2013) (equal protection analysis).
60 156 P.3d 1130 (Alaska 2007).
61 Id. at 1131-36.
-18- 7114
----------------------- Page 19-----------------------
62
v. State, the four-person court had addressed whether the new provision passed
63
constitutional equal protection muster, and two justices concluded that it did.
In Sands
the same statutory provision was challenged on the different constitutional ground that
64 We rejected the argument
it violated minors' due process rights of access to the court.
- essentially the same argument raised here by the dissent and the concurring opinion
- that the first decision implicitly controlled the result in the second:
In Evans, we assessed the constitutionality of subsection
.140(c) only within the context of equal protection. We did
not address the issue that we address today: whether
subsection .140(c) violates a minor's due process right to
access the court system. We are similarly unpersuaded by the
State's argument that we were "aware of the ramifications of
[our Evans] decision" because "Justice Carpeneti pointedly
discussed those ramifications in a detailed dissent." While
the dissent in Evans did indeed discuss the ramifications of
subsection .140(c) and argue that those ramifications
constitute a denial of equal protection, it - like the lead
opinion - did not consider the specific issue of due process.
That our Evans decision did not reach this particular
constitutional issue merely reinforces the wisdom of the rule
that courts should generally avoid deciding abstract cases.[65]
62 56 P.3d 1046 (Alaska 2002).
63 Id. at 1066 (concluding "subsection .140(c)'s disparatetreatment ofminors
under the age of eight is rationally based and furthers legitimate state interests").
64 Sands, 156 P.3d at 1133.
65 Id. (alteration in original) (footnotes omitted).
-19- 7114
----------------------- Page 20-----------------------
In Planned Parenthood II we answered the question whether the then-
66
existing parental consent law violated minors' constitutional privacy rights, and
declined to answer the question whether the then-existing parental consent law violated
67 Here we face the new and very different
minors' constitutional equal protection rights.
question whether the current parental notification law violates minors' constitutional
equal protection rights. Suggesting that we somehow answered a question that was not
actually asked in Planned Parenthood II is both incorrect and contrary to precedent. In
every case we decide what we decide, and nothing more.
In short, the Notification Law stands or falls on its own specific terms and
stated justifications.
2. The equal protection analysis - overview
The Alaska Constitution's equal protection guarantee requires "equal
treatment of those similarly situated."68
As we have previously explained in the context
of a law treating two groups differently:
When equal protection claims are raised, the question
is whether two groups of people who are treated differently
are similarly situated and therefore are entitled to equal
treatment under the constitution. In order to determine
whether differently treated groups are similarly situated, we
look to the state's reasons for treating the groups differently.
66 Planned Parenthood II, 171 P.3d 577, 581 n.21, 583-86 (Alaska 2007).
67 Id. at 581 n.21, 585.
68 State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,
28 P.3d 904, 909 (Alaska 2001) (quoting Alaska Pac. Assurance Co. v. Brown, 687 P.2d
264, 271 (Alaska 1984)).
-20- 7114
----------------------- Page 21-----------------------
As a matter of nomenclature we refer to that portion of a law
that treats two groups differently as a "classification." [69]
Todeterminewhether theNotificationLawdiscriminatesbetweensimilarly
situated classes, we first decide which classes must be compared.70 The parties agree that
the relevant classes are pregnant minors seeking termination and pregnant minors
seeking to carry to term. We next determine if the challenged law has a discriminatory
purpose or is facially discriminatory - i.e., whether the classes are treated unequally.71
It is clear that the Notification Law treats the two classes of pregnant minors differently,
burdening the fundamental privacy rights of those seeking termination but not the
fundamental privacy rights of those seeking to carry to term.72 So when we examine
whether these classes are similarly situated, we are asking a legal question: Under the
applicable scrutiny level, do the stated rationales for the Notification Law justify
69 Pub. Emps. Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007)
(emphasisadded) (footnotes omitted). Similarlysee Stanekv. Kenai Peninsula Borough ,
81 P.3d 268, 270-71 (Alaska 2003) (quoting extensively from Gonzales v. Safeway
Stores, Inc., 882 P.2d 389, 396 (Alaska 1994)) explaining that we view statutory
enactment with differentialtreatmentas creating separategroups and that weask whether
such classification has sufficient government justification under the appropriate level of
scrutiny.
70 State v. Schmidt, 323 P.3d 647, 660 (Alaska 2014).
71 Id. at 659 (citing Alaska Civil Liberties Union v. State , 122 P.3d 781, 788
(Alaska 2005); Alaska Inter-Tribal Council v. State , 110 P.3d 947, 956 (Alaska 2005)).
"When a 'law by its own terms classifies persons for different treatment,' the law is
facially discriminatory." Id. (quoting Alaska Civil Liberties Union , 122 P.3d at 788).
72 See AS 18.16.020(a).
-21- 7114
----------------------- Page 22-----------------------
discriminating between pregnant minors who choose to terminate a pregnancy and those
who choose to carry to term? 73
The State agrees with the foregoing legal framework. The Sponsors,
74 for a different line of equal
however, cite Alaska Inter-Tribal Council v. State
protection cases and argue that whether two classes are similarly situated is a threshold
matter to be decided before considering whether there are valid reasons for treating them
differently and that "similarly situated" is a question of fact reviewed for clear error.
Alaska Inter-Tribal Council did not involve an equal protection challenge
to a statute classifying two groups of people, but rather to an alleged geographically
discriminatory policy of police resource allocation in Alaska.75 In that context, citing a
federal case, we stated that whether persons, groups, or entities "are similarly situated is
76 The federal case we relied upon similarly did not involve
generally a question of fact."
an equal protection challenge to a statute classifying two groups of people, but rather to
an alleged selective enforcement of a zoning ordinance, i.e., discrimination against a
73 See, e.g., Gallant, 153 P.3d at 351-55 (applying independent judgment);
Stanek, 81 P.3d at 269-71 (applying independent judgment); Gonzales, 882 P.2d at 396-
99 (applying independent judgment).
74 110 P.3d at 947.
75 Id. at 966.
76 Id. at 967 (citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499
n.2 (2d Cir. 2001)). We ultimately concluded, in part, that the superior court's findings
of fact about the various geographical locations "show that the superior court did not
clearly err in finding that the two asserted similarities are not the relevant, much less the
only relevant, points of comparison for determining the issue of similarly-situatedness."
Id. at 969 (emphasis in original).
-22- 7114
----------------------- Page 23-----------------------
77
"class of one." Alaska Inter-Tribal Council did not purport to overrule the stated
framework when considering statutory enactments, used as early as 1994 in Gonzales v.
78 and then as recently as 2003 in Stanek v. Kenai Peninsula
Safeway Stores, Inc.
79 and used again not long after Alaska Inter-Tribal Council in Public
Borough,
80
Employees Retirement System v. Gallant.
We separately noted in Alaska Inter-Tribal Council that there are some
occasions when a full equal protection analysis may not be necessary because it is so
exceedingly clear that the two classes in question are not similarly situated.81 When
77 273 F.3d at 499. Although we do not need to delve into the matter now, a
close reading of this case suggests that the federal court actually may have applied a
mixed question of fact and law analysis, looking to the trial court's factual
determinations about business locations and then applying independent judgment to
whether, given the facts found by the trial court, the zoning board had a rational basis for
its decision. Compare id. at n.2 and at 500-02. This would be consistent with the legal
framework we use today.
78 882 P.2d at 396.
79 81 P.3d 268, 270-71 (Alaska 2003).
80 153 P.3d 346, 349-54 (Alaska 2007).
81 110 P.3d at 967. We will summarily conclude that two classes are not
similarly situated only in clear cases because "[s]uch a conclusion reflects in shorthand
the analysis traditionally used in our equal protection jurisprudence." Shepherd v. State,
Dep't of Fish & Game, 897 P.2d 33, 44 n.12 (Alaska 1995). But see id. at 46
(Rabinowitz, J., concurring) (arguing that the shorthand analysis "inadequately analyzes
the issue in this case" and "simply begs the question of whether the classification itself
is reasonable and whether it justifies disparate treatment").
State v. Schmidt, 323 P.3d 647 (Alaska 2014), reflects a somewhat mixed
approach. Schmidt involved a property tax exemption scheme for certain married
property owners. Id. at 651-53. Same-sex couples then-barred under Alaska law from
marrying raised an equal protection challenge. Id. at 653-54. We first cited Alaska
(continued...)
-23- 7114
----------------------- Page 24-----------------------
combined with our statement that whether two classes are similarly situated is
"generally" a question of fact, we may have created some ambiguity about the standard
of review for "similarly situated" when examining an equal protection challenge under
the "shorthand analysis" - is it a question of fact or is it a mixed question of fact and
law? Although we presently perceive no reason there would be a different underpinning
for a shorthand analysis and a full analysis of an equal protection challenge to a statute
classifying two groups of people, we do not need to address that question here.
The superior court stated that our equal protection analysis applied to the
extent the Notification Law"treats minors opting to carry to termdifferently fromminors
opting to abort." The court applied its fact-finding about pregnancies and abortions and
their interplay with the Notification Law's stated justifications to conclude - not with
a shorthand analysis, not as a purported finding of fact, but rather as a matter of law -
that once a minor elected to undergo an abortion the justifications for medical
emancipation did not apply and the justifications for parental involvement applied more
heavily, so that she no longer was similarly situated with a minor electing to carry to
81 (...continued)
Inter-Tribal Council for the proposition that "similarly situated" generally is a question
of fact. Id. at 655. We examined as a threshold matter whether committed same-sex
couples who wanted (but were prohibited by law) to marry were similarly situated to
opposite-sex couples who wanted to marry. Id. at 660-61. But rather than resolving the
"similarly situated" issue purely as a factual matter reviewed for clear error, or even
through a shorthand analysis of "similarly situated" as a factual matter reviewed for clear
error, we considered the superior court's factual findings about the similarities of long-
term commitments by same-sex domestic partners and married couples and held as a
matter of law that same-sex couples who would marry if allowed to do so were - for
purposes of the tax exemption program - similarly situated to married couples. Id. at
661. We then undertook the usual equal protection analysis to determine whether
discrimination between married couples and same-sex couples could be justified under
the government interests raised to support the tax exemption scheme. Id. at 662-64.
-24- 7114
----------------------- Page 25-----------------------
term. We will review that legal conclusion under the framework outlined above and
detailed more fully below.
3. Core equal protection analysis
Our core equal protection analysis applies a flexible three-step sliding-
scale:
First, it must be determined at the outset what weight should
be afforded the constitutional interest impaired by the
challenged enactment. . . . Depending upon the primacy of
the interest involved, the state will have a greater or lesser
burden in justifying its legislation.
Second, an examination must be undertaken of the
purposes served by a challenged statute. Depending on the
level of review determined, the state may be required to show
only that its objectives were legitimate, at the low end of the
continuum, or, at the high end of the scale, that the legislation
was motivated by a compelling state interest.
Third, an evaluation of the state's interest in the
particular means employed to further its goals must be
undertaken. Once again, the state's burden will differ in
accordance with the determination of the level of scrutiny
under the first stage of analysis. At the low end of the sliding
scale, we have held that a substantial relationship between
means and ends is constitutionally adequate. At the higher
end of the scale, the fit between means and ends must be
much closer. If the purpose can be accomplished by a less
restrictivealternative, theclassification will beinvalidated. [82]
a. Step one
Step one of our core equal protection analysis requires evaluating the
importance of the personal right infringed upon to determine the State's burden in
justifying its differential infringement. It has long been established that the Alaska
82 Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984).
-25- 7114
----------------------- Page 26-----------------------
Constitution's privacy clause guarantees the fundamental right to choose between
83
pregnancy termination and carrying to term.
And it has long been established that a
84
law burdening the fundamental right of reproductive choice demands strict scrutiny.
Whether the Notification Law survives strict scrutiny "depends on whether
the [law] is narrowly tailored and whether there is a less restrictive alternative to meet
85 For the Notification Law "[t]o be narrowly tailored, there must
the [State's] interest."
be a sufficient nexus between the stated government interest and the classification
created by the [law]."86 This nexus must not be too under- or over-inclusive; as we have
explained:
As the level of scrutiny selected is higher on the [sliding]
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
83 Valley Hosp. Ass'n v. Mat-Su Coal. for Choice , 948 P.2d 963, 968-69
(Alaska 1997) (establishing fundamental privacy right for pregnant women); Planned
Parenthood I , 35 P.3d 30, 40-41 (Alaska 2001) (extending fundamental privacy right to
pregnant minors).
84 State, Dep't of Health &Soc. Servs. v. Planned Parenthood of Alaska, Inc.,
28 P.3d 904, 909 (Alaska 2001) ("The regulation at issue in this case affects the exercise
of a constitutional right, the right to reproductive freedom. Therefore, the regulation is
subject to the most searching judicial scrutiny, often called 'strict scrutiny.' " (footnote
omitted)). We reject the Sponsors' argument that the State only needs to advance a
rational basis for treating the two groups of pregnant minors differently because those
seeking termination are a "nonsuspect classification."
85 Treacy v. Municipality of Anchorage, 91 P.3d 252, 266 (Alaska 2004).
86 Id. (quoting Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935, 946
(9th Cir. 1997)).
-26- 7114
----------------------- Page 27-----------------------
underinclusiveness in the means-to-ends fit will be
tolerated.[87]
b. Step two
Step two of our core equal protection analysis requires identifying and
assessing the State's interests in differently burdening pregnant minors' fundamental
privacy rights. To justify differently burdening fundamental privacy rights, the State's
interests in doing so must be compelling.88 The State asserts two main interests as
justifying the Notification Law's disparate treatment of pregnant minors: (1) "aiding
parents to fulfill their parental responsibilities" and (2) "protecting minors from their
immaturity."89
87 State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio , 858 P.2d
621, 629 (Alaska1993) (alteration in original) (quoting State v. Ostrosky , 667 P.2d 1184,
1193 (Alaska 1983)).
88 A governmental interest must be more than legitimate to be "compelling."
To prove an interest compelling in the equal protection context, the State must show that
the interest actually needs to be vindicated because it is significantly impaired at present.
See, e.g., Vogler v. Miller, 651 P.2d 1, 5-6 (Alaska 1982); Gray v. State, 525 P.2d 524,
528 (Alaska 1974); Breese v. Smith, 501 P.2d 159, 172 (Alaska 1972).
Although we cite cases discussing the word "compelling" in the
fundamental privacy rights context, the meaning of "compelling" as an adjective is the
same in the equal protection context. Where our fundamental privacy rights and equal
protection analyses differ is in the necessary justification: In the fundamental privacy
rights context, the compelling interest must be important enough to justify infringing on
a right, but in the equal protection context, the compelling interest must be important
enough to justify treating two classes differently regarding such a right. See supra note
59 and accompanying text.
89 In Planned Parenthood II the State asserted that the Consent Act served
five governmental interests: "(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
(continued...)
-27- 7114
----------------------- Page 28-----------------------
We accept that the State asserts compelling interests: In Planned
Parenthood II we said that "the State has an undeniably compelling interest in protecting
the health ofminors and in fostering family involvement in a minor's decisions regarding
90 And we later stated that "on the most generalized level," the State has
her pregnancy."
a compelling interest in "protecting minors fromtheir own immaturity and aiding parents
in fulfilling their parental responsibilities."91 But we note that the interest in "protecting
minors from their immaturity" requires context - immaturity in and of itself is not a
89 (...continued)
abuse; and (5) strengthen the parent-child relationship." 171 P.3d 577, 582 n.29 (Alaska
2007). We grouped these interests into the "generalized" interests of "protecting minors
fromtheir own immaturity and aiding parents in fulfilling their parental responsibilities."
Id. at 582.
Here the State asserts that its interest in protecting minors from their own
immaturity includes ensuring that they use "moral imagination" in making their
decisions. We assume the State is not implying that minors seeking to terminate a
pregnancy are more lacking in "moral imagination" than those seeking to carry to term
or that one decision is more or less ethical than the other, but rather is simply asserting
that minors' inability to fully appreciate ethical concerns puts their physical,
psychological, and/or sexual health at greater risk such that they are in need of more
protection. Cf. State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska,
Inc., 28 P.3d 904, 905 (Alaska 2001) ("Alone among Medicaid-eligible Alaskans,
women whose health is endangered by pregnancy are denied health care based solely on
political disapproval of the medically necessary procedure. This selective denial of
medical benefits violates Alaska's constitutional guarantee of equal protection."); Valley
Hosp. Ass'n v. Mat-Su Coal. for Choice, 948 P.2d 963, 971 (Alaska 1997) (concluding
"matter of conscience" not a compelling governmental interest); Ravin v. State, 537 P.2d
494, 509 (Alaska 1975) ("The state cannot impose its own notions of morality, propriety,
or fashion on individuals . . . ."). The State expressly stated at oral argument that it has
no interest, compelling or otherwise, in affecting a pregnant minor's ultimate
reproductive choice.
90 Planned Parenthood II, 171 P.3d at 579.
91 Id. at 582.
-28- 7114
----------------------- Page 29-----------------------
harm. As we stated in Planned Parenthood II , "minors often do not possess the capacity
to make informed, mature decisions, and are therefore susceptible to a host of pitfalls
92 The State's interest in "protecting minors from
and dangers unknown in adult life ."
their immaturity" is in protecting minors fromspecific pitfalls and dangers to which their
immaturity makes them especially susceptible. We therefore will consider the State's
interest in "protecting minors from their immaturity" in the contexts of relevant stated
harms: risks to mental and physical health and from sexual abuse.93
c. Step three
Having determined that the Notification Law (1) burdens a class of
pregnant minors' fundamental privacy rights and (2) was motivated by compelling state
interests, we now examine, under strict scrutiny, whether vindicating the State's
compelling interests justifies imposing disparate burdens on the two groups of pregnant
minors' fundamental privacy rights. To survive strict scrutiny the Notification Law's
disparate treatment of the two classes "must further a compelling state interest and be the
94
least restrictivemeans availableto accomplish thestate's purpose." Ifthemeans-to-end
fit between the State's purpose and the Notification Law is not close enough - if the
Notification Law is under-inclusive or over-inclusive - then it will not survive strict
scrutiny.95
92 Id. (emphasis added).
93 See supra note 89.
94 Schiel v. Union Oil Co. of Cal., 219 P.3d 1025, 1030 (Alaska 2009).
95 See State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983) ("As the level
of scrutiny selected is higher . . . we require that . . . the legislation's means-to-ends fit
be correspondingly closer. On the other hand, if relaxed scrutiny is indicated, . . . a
greater degree of over[inclusiveness ]or underinclusiveness in the means-to-ends fit will
(continued...)
-29- 7114
----------------------- Page 30-----------------------
i. Parental involvement 96
WeconcludethatvindicatingtheState'scompellinginterest in encouraging
parental involvement in minors' pregnancy-related decisions does not support the
Notification Law's disparate treatment of the two classes of pregnant minors. Parents
97
do have an "important 'guiding role' to play in the upbringing of their children." We
have said that "it is the right and duty, privilege and burden, of all parents to involve
themselves in their children's lives; to provide their children with emotional, physical,
and material support; and to instill in their children 'moral standards, religious beliefs,
98
and elements of good citizenship.' " But as the State acknowledged at oral argument,
this must be true for all pregnant minors' parents, not just those whose daughters are
considering termination.
No one challenges the superior court's factual finding that "[f]ew life
decisions could benefit more from consultation with supportive parents than a minor's
decision to carry to term; the decision to abort, comparatively, involves far fewer
enduring consequences." All pregnant minors, not just those seeking termination, may
95 (...continued)
be tolerated.").
96 We disagree with the dissent's contention that the issue before us is about
parents' constitutional rights to parent their children, rather than the State's restriction
of fundamental privacy rights in violation of the Alaska Constitution's equal protection
guarantee. This appeal does not arise from a suit to enjoin the State from interfering with
a parent's constitutional rights as a parent. This appeal arises from a suit to enjoin the
State from restricting a minor's constitutional and statutory rights to pregnancy-related
health care based solely on that minor's exercise of her fundamental privacy right to
reproductive choice.
97 Planned Parenthood II, 171 P.3d at 583 (quoting H.L. v. Matheson, 450
U.S. 398, 410 (1981)).
98 Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 233 (1972)).
-30- 7114
----------------------- Page 31-----------------------
need their parents' assistance and counsel when making reproductive choices; and
parents who might counsel termination are as "entitled to the support of laws designed
99 to guide their children as are parents
to aid [in the] discharge of [their] responsibility"
100 Yet the Notification Law's effect is that only a
who might counsel carrying to term.
minor seeking termination obtains parental guidance and only the parents of a minor
seeking terminationaregiven an opportunity to counseltheirdaughter aboutalternatives.
But absent acompellinginterest in limiting minors' pregnancy terminations and favoring
their carrying to term - which the State does not assert - the State's compelling
interest in fostering parental involvement extends equally to all pregnant minors and that
interest's vindication does not justify treating the classes differently.
The State and the Sponsors contend that even if the importance of the
State's asserted interest in parental involvement is equal for both classes, disparate
treatment is justified because the State's interests eventually will be furthered for minors
seeking to carry to term without parental notification, while furthering these interests for
minors seeking termination requires parental notification. They contend that parents of
a minor seeking to carry to term inevitably will learn of the pregnancy and then can
99 Id. (first alteration in original) (quoting Bellotti v. Baird , 443 U.S. 622, 639
(1979)).
100 The dissent - alone - asserts that unequal treatment is warranted solely
by the moral difference in the pregnant minors' choices: "What similarity can there be
between a decision to terminate life and a decision to preserve life?" Dissent at 72. This
moral distinction is unsupported by any asserted State interest justifying the Notification
Law, and it can lead only to a conclusion that the "wrong choice" launches a pregnant
minor into a category of dissimilarity subjecting her to greater governmental interference
than a pregnant minor who makes the "right choice." It is telling that the dissent's
objectiontointerferencewithparental rights toparticipatein aminor's pregnancy-related
health care is limited to the right to counsel against an abortion, and does not include the
right to counsel against the more medically dangerous decision to carry to term.
-31- 7114
----------------------- Page 32-----------------------
further the asserted governmental interests by counseling and assisting the minor. They
also contend that because an abortion can be kept secret, absent notification parents may
not learn of it in time to provide counseling and assistance. 101
Based on its evaluation of testimony regarding policies of Alaska hospitals,
surgical centers, and health care providers, the superior court found that in Alaska an
abortion generally is unavailable after about 14 weeks' gestation. After that point the
decision to carry to termbecomes essentially irreversible, and the opportunity to exercise
102 Trial testimony also reflected that it is possible for a
reproductive choice is lost.
pregnancy to be kept secret well past 14 weeks' gestation. Accordingly, parents learning
of a minor's pregnancy after 14 weeks will have lost the opportunity to provide
meaningful advice about reproductive choice; the State's interest in ensuring that parents
have the opportunity to provide such advice thus is not necessarily furthered by the
inevitability of the pregnancy becoming obvious.
101 The State also argues that there is no opportunity to notify parents when
minors choose to carry to term. See AS 25.20.025(a)(4) (permitting minors to receive
medical treatment related to the "diagnosis, prevention, or treatment of pregnancy"
without parental consent). But physicians could be statutorily required to notify parents
of minors seeking any pregnancy-related medical care, just as the Notification Law
requires notifying parents of minors seeking pregnancy termination. The relative
wisdom of such a requirement, of course, is within the legislature's province, not ours,
and we express no opinion whether such a requirement would survive a privacy-based
constitutional challenge.
102 The Sponsors argued in their briefing that carrying a child to term is not a
choice because it is the natural result of pregnancy absent a decision to terminate. But
at oral argument the Sponsors conceded that the mutually exclusive decision faced by
a pregnant minor is carrying to term or termination. Cf. State, Dep't of Health & Soc.
Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 913 (Alaska 2001) ("[A]
woman who carries her pregnancy to term and a woman who terminates her pregnancy
exercise the same fundamental right to reproductive choice.").
-32- 7114
----------------------- Page 33-----------------------
ii. Minors' physical and mental health
The State asserts an interest in protecting minors' physical and mental
health. But, again, we conclude that this general interest alone cannot justify disparate
treatment based upon a pregnant minor's decision to terminate or carry to term. The
Sponsors more specifically argue that abortion entails unique medical risks not present
when carrying to term, such as post-abortion complications, warranting parental
involvement. But the superior court found that abortion raises fewer health concerns for
minors than does giving birth, that abortion is "quintessentially" and "extraordinarily"
safe, and that "the majority consensus of American psychiatry is that abortion does not
103 The court noted that four doctors who had performed abortions
cause mental illness."
in Alaska testified at the trial, and none indicated parental notification was medically
103 See also Gonzales v. Carhart , 550 U.S. 124, 183 n.7 (2007) (Ginsburg, J.,
dissenting) ("[N]either the weight of the scientific evidence to date nor the observable
reality of 33 years of legal abortion in the United States comports with the idea that
having an abortion is any more dangerous to a woman's long-term mental health than
delivering and parenting a child that she did not intend to have . . . ." (quoting Susan A.
Cohen, Abortion and Mental Health: Myths and Realities , 9 G UTTMACHER POL'Y REV.
8 (2006))); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 429 n.11
(1983) ("There is substantial evidence that developments in the past decade, particularly
the development of a much safer method for performing second-trimester abortions . .
. have extended the period in which abortions are safer than childbirth." (emphasis
added)), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 882 (1992); Beal v. Doe, 432 U.S. 438, 445 (1977) (accepting assertion that
"an early abortion poses less of a risk to the woman's health than childbirth"); Roe v.
Wade, 410U.S. 113,149(1973) ("Mortality rates forwomen undergoing earlyabortions,
where the procedure is legal, appear to be as low as or lower than rates for normal
childbirth."); Isaacson v. Horne, 716 F.3d 1213, 1224 (9th Cir. 2013) ("The Supreme
Court has recognized that . . . improvements in medical technology will . . . push later
in pregnancy the point at which abortion is safer than childbirth . . . ."); cf. Casey, 505
U.S. at 860 ("We have seen how time has overtaken some of Roe 's factual assumptions:
advances in maternal health care allowfor abortions safe to the mother later in pregnancy
. . . .").
-33- 7114
----------------------- Page 34-----------------------
helpful; the doctors testified that minors are capable of providing their own medical
histories and managing post-abortion care. The court also found that "[p]arental
involvement is not required to manage complications, which are relatively rare and
generally resolved by an obvious, immediate medical response." In short neither the
Sponsors nor the State established that the medical risks of pregnancy termination justify
the Notification Law's disparate treatment of pregnant minors.
The State also contends that its interest in protecting minors' health is
implicated differently when minors seek to carry to term because parental notification
discourages pregnant minors fromobtaining prenatal medical care. The Stateasserts that
it thus has a more "limited" health interest in minors seeking termination which justifies
treating them differently from those seeking to carry to term. But if the specter of
parental notificationwoulddiscouragepregnantminors fromseekingtimely medical care
consistent with their statutory and constitutionally protected fundamental privacy right
to carry to term, then logically it also would discourage those seeking timely medical
care consistent with their constitutionally protected fundamental privacy right to
terminate. And because the superior court found that in Alaska an abortion generally is
unavailable after about 14 weeks' gestation, time is of the essence. Absent a valid and
compelling interest indiscouraging terminationand favoringcarrying to term, an interest
the State expressly denied at oral argument, we conclude that the State's interest in
protecting the health of a minor seeking termination is equal to its interest in protecting
the health of a minor seeking to carry to term. 104
104 In fact, the implication of the State's argument is that parental notification
hinders the State's interest in protecting minors' health by discouraging and potentially
delaying them from obtaining constitutionally protected medical treatment. If there is
no medically or psychologically inferred difference between pregnant minors making
reproductive choices, and if the State has no interest in which reproductive choice is
(continued...)
-34- 7114
----------------------- Page 35-----------------------
The concurring opinion echoes another State argument that "[p]regnant
minors seeking to carry their pregnancies to term and pregnant minors seeking to
terminate their pregnancies do not face the same choice" because "the pregnant minor
who seeks to carry her pregnancy to termdoes not strictly need medical treatment" while
"[t]he pregnant minor who seeks to terminate her pregnancy . . . cannot do so without
105 This arbitrary distinction is untethered to the State interests
medical treatment."
justifying the Notification Law and is inconsistent with the rationale for medical
emancipation.
Until actually seeking pregnancy-related medical care the only difference
between a minor seeking to terminate a pregnancy and a minor seeking to carry to term
is the constitutionally protected choice each is making.106 But once both minors seek
pregnancy-related medical care, the Notification Law allows the minor seeking to carry
to term to immediately consent to and receive treatment while requiring parental
notification before the minor seeking termination may consent to and receive treatment.
The statutory mandate that abortions be performed by doctors does not eliminate the
justification for medical emancipation - encouraging minors to seek timely legal
104 (...continued)
made, under its own theory the Notification Law is detrimental to the State's compelling
interest in protecting the health of minors seeking termination.
105 See AS 18.16.010(a)(1) ("An abortion may not be performed in this state
unless . . . by a physician . . . .").
106 Cf. Planned Parenthood of Alaska, Inc., 28 P.3d at 913 ("[A] woman who
carries her pregnancy to term and a woman who terminates her pregnancy exercise the
same fundamental right to reproductive choice.").
-35- 7114
----------------------- Page 36-----------------------
107
medical care they otherwise might forgo or delay for fear of parental involvement -
and does not necessitate disparate treatment of the two groups.
iii. Sexual abuse prevention
WeconcludethattheState'sinterestin protecting minors fromsexual abuse
must be the same whether a pregnant minor seeks termination or seeks to carry to term.
The superior court found that parental notification in and of itself would not
meaningfully advance the State's interest in protecting minors from sexual abuse. And
the State and the Sponsors point to no evidence that pregnant minors seeking termination
are more likely to have been sexually abused - and therefore more in need of protection
- than those seeking to carry to term. The Sponsors cite testimony that pregnant minors
could be pressured by peers into seeking termination and speculate that the pressure
could come from "those seek[ing] to hide illegal sexual activity." But the Sponsors cite
no evidence that pregnant minors seeking termination are more likely to have been
involved in "illegal sexual activity," are less likely or able to report sexual abuse, or are
disproportionately more likely to have been pressured to seek termination - and
108 No facts
therefore more in need of protection - than those seeking to carry to term.
107 As evidenced by the multitude of illicit abortions performed in this country
before Roe v. Wade , restrictive abortion laws do not guarantee compliance. See 410 U.S.
113, 150 (1973) (recognizing "high mortality rates at illegal 'abortion mills' ").
108 Even were we to assume that reporting sexual abuse is correlated with
maturity, we note that the superior court did not find that minors seeking termination
were less mature than minors seeking to carry to term. To the contrary, the court noted
that minors seeking termination may in some ways be more mature than those seeking
to carry to term, including being more likely to have "high educational accomplishments
or aspirations . . .[,] a greater ability to conceptualize the future, and a greater sense of
control over their lives." The State and the Sponsors appeal this point, but they offer no
evidence showing that pregnant minors seeking termination are less mature than those
seeking to carry to term.
-36- 7114
----------------------- Page 37-----------------------
before us demonstrate that vindicating the State's compelling interest in protecting
minors from sexual abuse justifies requiring that parents of minors seeking termination
be notified without requiring the same for parents of minors seeking to carry to term.
And neither the dissent nor the concurring opinion expressly disputes this conclusion.
d. Conclusion
We must conclude that the State's asserted interests do not justify a
distinction between pregnant minors seeking to terminate and those seeking to carry to
term. Despite the factual difference between the two classes of pregnant minors, as a
matter of law they are similarly situated with respect to the Notification Law. The
Notification Law is under-inclusive because the governmental interests asserted in this
case are implicated for all pregnant minors - as they face reproductive choices and as
they live with their decisions - and the asserted justifications for disparate treatment
based upon a minor's actual reproductive choice are unconvincing. The Notification
Law's discriminatory barrier to those minors seeking to exercise their fundamental
privacy right to terminate a pregnancy violates Alaska's equal protection guarantee. 109
109 We make another observation about the dissent, which - unlike all of the
parties - contends that the Notification Law is not a real barrier to a mature minor's
ability to obtain the medical care necessary to terminate a pregnancy. The dissent argues
that as a practical matter the Notification Law is not a barrier to abortion access because:
(1) only one parent has to be notified; (2) there is an exception for the protection of the
minor's life; and (3) the "easily navigable" judicial bypass mechanism presents "an
almost negligible hurdle." Dissent at 75-76. The obvious counter-argument would be
that if the Notification Law really is not a barrier to medical treatment for a minor
seeking to terminate a pregnancy, it really would not be a barrier to a minor seeking to
carry to term. Yet the dissent acknowledges that for a minor seeking to carry to term,
parental notification would be a potential barrier to access to prenatal care. It is virtually
undisputed thataminor's access to any kind of pregnancy-related health careis burdened
by parental involvement - there otherwise would be no need for medical emancipation
statutes. The question here is whether - given its stated justifications - the State
(continued...)
-37- 7114
----------------------- Page 38-----------------------
Our decision today is not novel. Over 15 years ago the New Jersey
Supreme Court considered whether a similar law violated that state's similar equal
110 New Jersey's Constitution does not contain the explicit privacy
protection guarantee.
guarantee that Alaska's Constitution does, but the court began its equal protection
analysis by noting that New Jersey's Constitution - like Alaska's - "more
expansive[ly]" protects "the right of privacy and its concomitant rights, including a
woman's right to make certain fundamental choices," than does the United States.
Constitution.111 The court held that the parental notification law was subject to the "most
exacting scrutiny" and that it "significantly burden[ed the rights of] unemancipated
women seeking abortions."112 The court reasoned that the law would create impediments
preventing minors from exercising their constitutional rights, an unacceptable outcome
"without substantial adequate justification for the classification."113
The New Jersey court considered each of the asserted governmental
interests raised here by the State and the Sponsors - protecting minors from their own
109 (...continued)
constitutionally can burden access to only that pregnancy-related medical care related to
terminating a pregnancy.
110 See generally Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620
(N.J. 2000) (considering law requiring parental notification or judicial waiver before
minor could obtain abortion).
111 Id. at 631-33; see also Planned Parenthood II, 171 P.3d 577, 581 (Alaska
2007) ("Because [Alaska's constitutionally protected] right to privacy is explicit, its
protections are necessarily more robust and 'broader in scope' than those of the implied
federal right to privacy." (quoting Ravin v. State, 537 P.3d 494, 515 (Alaska 1975)
(Boochever, J., concurring))).
112 Farmer, 762 A.2d at 633.
113 Id. at 636.
-38- 7114
----------------------- Page 39-----------------------
immaturity, fosteringfamily communications,andprotecting parents' rights toraisetheir
children - and determined that mandatory parental notification of planned pregnancy
114 The court concluded that "the New Jersey
terminations did not further those interests.
Constitution does not permit the State to impose disparate and unjustifiable burdens on
different classes of young women when fundamental constitutional rights hang in the
balance."115 The court also made the following prescient statement, with which we
agree:
We emphasize that our decision in no way interferes with
parents' protected interests, nor does it prevent pregnant
minors or their physicians from notifying parents about a
young woman's choice to terminate her pregnancy. Simply,
theeffectofdeclaring thenotification statuteunconstitutional
is to maintain the State's neutrality in respect of a minor's
child-bearing decisions and a parent's interest in those
decisions. In effect, the State may not affirmatively tip the
scale against the right to choose an abortion absent
compelling reasons to do so.[116]
The dissent nonetheless contends we are out of the mainstream of judicial
reasoning, pointing to other jurisdictions with either parental consent or parental
notification laws in place. But this contention is unsupported by any serious judicial
reasoning tied to the required equal protection analysis under the Alaska Constitution:
Relevant inquiries about each jurisdiction's laws are conspicuously absent.
114 Id. at 636-39. The court noted evidence that cesarean sections, which did
not have a parental notification requirement, were more dangerous for pregnant minors
than were abortions and that minors seeking terminations for the most part were not
immature. Id. at 636-37.
115 Id. at 638.
116 Id. at 622.
-39- 7114
----------------------- Page 40-----------------------
Does that jurisdiction have the same broad fundamental privacy right for
a minor's reproductive choice as conferred by the Alaska Constitution? The answer
obviously must be "no" for any jurisdiction with a parental consent law or any
jurisdiction with privacy or liberty rights co-extensive with those of the United States
Constitution. Does the jurisdiction have the same equal protection guarantee as
conferred by the Alaska Constitution? And if it does: (1) what weight does that
jurisdiction give to a minor's privacy interest; (2) what are the government's asserted
interests and what weight does that jurisdiction give them; and (3) what level of scrutiny
does the jurisdiction apply? If the jurisdiction does not afford minors the same
fundamental privacy right to reproductive choice as Alaska, or if the jurisdiction asserts
more compelling governmental interests in limiting minors' abortion rights than does
Alaska, then the weighing of interests - even under our own equal protection
framework - likely would render a different result. 117
The bare assertion that some other jurisdictions have parental consent or
notification laws conflates different constitutional interests and protections and lends
nothing to the required equal protection analysis under the Alaska Constitution. For
117 We reiterate that our decision today is based on the limited State interests
raised as the Notification Law's justification. The dissent criticizes that we have not
identified exactly what is wrong with the Notification Law's language and that our
decision means no notification law can ever be worded to pass equal protection muster
in Alaska. Our response - again - is that the Notification Law's problem is not with
wording, but rather with the lack of an acceptable justification for discriminating
between pregnant minors based on how they exercise their fundamental privacy right to
reproductive choice: The equal protection clause guarantees that the State may not
discriminatebetween individuals with respect to a fundamental right unless a compelling
governmental interest justifies the discrimination. See supra note 59 and accompanying
text.
-40- 7114
----------------------- Page 41-----------------------
118
example, relying on Planned Parenthood of Southeastern Pennsylvania v. Casey , the
dissent asserts that the United States Supreme Court "has clearly explained" that a state
may legitimately enact laws "designed to encourage a woman contemplating abortion to
be informed regarding the effects that abortion may have on her and regarding
119 The dissent therefore concludes that the State has a
alternatives to abortion."
legitimate interest in the Notification Law that today's decision "trivializes."120
We do not disagree with the dissent's characterization of Casey. But Casey
involved the balancing of a woman's liberty interest and a state interest in preserving
121 In the case before us: (1) the
unborn life under the United States Constitution.
fundamental right of privacy and the right of equal protection under the Alaska
Constitution are at issue; (2) the State expressly disavowed any governmental interest in
the ultimate reproductive choice made by pregnant minors, i.e., the State did not assert
a compelling interest in preserving unborn life;122 and (3)as discussed extensively above,
the compelling State interests justifying the Notification Law do not include requiring
pregnant minors to be informed of the "effects" of abortion or the alternatives to
abortion, but rather include aiding parents to fulfill their parental responsibilities and
118 505 U.S. 833 (1992).
119 Dissent at 65.
120 Dissent at 66.
121 505 U.S. at 869-79.
122 Any balancing - under the Alaska Constitution - of a woman's
fundamental privacy right of reproductive choice and a hypothetical government interest
in limiting abortions and preserving unborn life is not before us. To avoid any future
misunderstanding, we note that our Casey discussion here is not intended to be an
explicit or implicit approval or disapproval of any position on such an abstract question.
-41- 7114
----------------------- Page 42-----------------------
123
protecting minors fromrisks to mental and physical health and fromsexual abuse. The
parties did not cite Casey in their briefing, nor did they make the immaterial argument
the dissent advances.
B. Privacy
Part II of the concurring opinion, to which three justices agree, concludes
that a number of the Notification Law's provisions violate pregnant minors'
constitutional privacy rights. But because the Notification Law cannot stand in the face
of the Alaska Constitution's equal protection guarantee, it is unnecessary to decide -
and it is not decided - whether invalidation of those provisions on the constitutional
privacy ground renders the Notification Law unenforceable in its entirety.124 We
123 Given the dissent's viewpoint on the morality of abortion and its emphasis
on parents' constitutional rights to instill moral standards and religious beliefs in their
children, the dissent apparently presumes, without regard to any of the stated
justifications for theNotification Law, that parentswouldfollowthedissent'smoral code
and try to persuade their pregnant daughters not to have abortions. Some probably
would. Some probably would not. Casey itself is instructive in this regard:
Men and women of good conscience can disagree, and
we suppose some always shall disagree, about the profound
moral and spiritual implications of terminating a pregnancy,
even in its earliest stage. Some of us as individuals find
abortion offensive to our most basic principles of morality,
but that cannot control our decision. Our obligation is to
define the liberty of all, not to mandate our own moral code.
505 U.S. at 849.
124 Cf. Planned Parenthood II, 171 P.3d 577, 581 n.21 (Alaska 2007)
(declining to address equal protectionclaimafterholdinglawunconstitutionalon privacy
grounds); State, Dep't of Health & Soc. Servs. v. Valley Hosp. Ass'n, 116 P.3d 580, 584
(Alaska 2005) (noting court has a "practice of reaching constitutional issues only when
the case cannot be fairly decided on statutory or other grounds" (citing Kenai Peninsula
(continued...)
-42- 7114
----------------------- Page 43-----------------------
reiteratethat our Planned Parenthood II conclusion indicating aparental notification law
might satisfy Alaska's constitutionalprivacy standard does not necessarily mean that any
particular parental notification law will do so. We also reiterate that today's equal
protection decision is based on the limited State interests asserted to justify the
Notification Law's discrimination against minors seeking to terminate a pregnancy, and
that a similar law with different supporting justifications would require a new equal
protection analysis.
C. Cross-Appeal
In light of our ruling, we do not need to reach the issues raised in the State's
and the Sponsors' cross-appeals.
V. CONCLUSION
The Parental Notification Law violates the Alaska Constitution's equal
protection guarantee. We REVERSE the superior court's decision to the extent that it
upholds the Parental Notification Law, and we REMAND for further proceedings,
including entry of judgment consistent with our decision.
124 (...continued)
Fisherman's Coop. Ass'n v. State, 628 P.2d 897, 908 (Alaska 1981))).
-43- 7114
----------------------- Page 44-----------------------
FABE, Chief Justice, concurring; MAASSEN, Justice, and BOLGER, Justice, joining
only in Part II of the concurrence.
I disagree with the court's analysis and conclusion that the Parental
Notification Law violates the guarantee of equal protection. But because this parental
notification scheme violates the fundamental right to privacy, I concur with the court's
judgment. A law that burdens reproductive choice "must be subjected to strict scrutiny
and can only survive review if it advances a compelling state interest using the least
1 This law does not achieve its goals using
restrictive means of achieving that interest."
the least restrictive means; on the contrary, it is one of the most restrictive parental
notification laws in the country. I believe that the Alaska Constitution permits a parental
notification law, but not one that contains provisions that are among the most restrictive
of any state's notification laws. Thus, I agree with the court that this law violates the
Alaska Constitution.
I. RIGHT TO PRIVACY, RATHER THAN EQUAL PROTECTION, IS THE
APPROPRIATE CONSTITUTIONAL FRAMEWORK FOR THIS LAW.
We have held "that reproductive rights are fundamental, and that they are
encompassed within the right to privacy expressed in article I, section 22 of the Alaska
Constitution."2
Since our first decision on this issue, we have most often analyzed
challenges to laws that relate to a woman's right to reproductive choice as matters of the
3 I continue to view the right to privacy as the appropriate
constitutional right to privacy.
1 State v. Planned Parenthood of Alaska (Planned Parenthood II ), 171 P.3d
577, 582 (Alaska 2007).
2 Valley Hosp. Ass'n v. Mat-Su Coalition For Choice, 948 P.2d 963, 969
(Alaska 1997).
3 See Planned Parenthood II, 171 P.3d at 581 n.21 ("Because we conclude
(continued...)
-44- 7114
----------------------- Page 45-----------------------
lens through which to analyze such laws, including the parental notification statute at
issue in this case.
When fundamental rights are at issue, our right-to-privacy analysis closely
resembles our equal protection analysis. Both modes of analysis require identification
of a compelling governmental interest, advanced by the least restrictive means. 4 They
differ in what aspect of a law is subjected to this strict review: its infringement of the
fundamental right or its discriminatory treatment of the fundamental rights of two
different groups. In my view the notification law infringes on a minor's fundamental
right to reproductive choice in a manner that is not the least restrictive means of
accomplishing the government's compelling interests, but it does not treat similarly
situated groups dissimilarly.
As we have recognized, the State has compelling interests in "protecting
minors from their own immaturity and aiding parents in fulfilling their parental
3 (...continued)
that the [Parental Consent Act] 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."); State v. Planned Parenthood of Alaska (Planned
Parenthood I), 35 P.3d 30, 41, 45 (Alaska 2001) (holding that "[t]o justify the [Parental
Consent Act's] restriction of a minor's right to terminate a pregnancy, . . . the state must
establish a compelling interest in restricting the minor's right to privacy" and declining
to decide the equal protection question until further evidentiary hearings were held);
Valley Hosp., 948 P.2d at 969 (explaining that "reproductive rights are . . . encompassed
within the right to privacy expressed in . . . the Alaska Constitution"). But see State,
Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, 28 P.3d 904, 908-13
(Alaska 2001) (applying equal protection analysis in striking down a statute that denied
Medicaid funding for medically necessary abortions).
4 See, e.g., Planned Parenthood II, 171 P.3d at 581 (fundamental right to
privacy); Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1278
(Alaska 2013) (equal protection).
-45- 7114
----------------------- Page 46-----------------------
5
responsibilities." The court concludes that the State's interest in aiding parents in
fulfilling their parental responsibilities does not require different treatment of pregnant
minors seeking to carry their pregnancies to term and pregnant minors seeking to
terminate their pregnancies. I agree with the court's legal framework for analyzing this
question. But I believe that those groups are not similarly situated with regard to the
State's broad interest in protecting minors from their own immaturity.
"In order to determine whether differently treated groups are similarly
6 The State's
situated, we look to the [S]tate's reasons for treating the groups differently."
reasons arediscernablefromthefull contextofAlaska'smedicalnotification and consent
laws for minors. Under Alaska law, minors generally cannot consent to medical care.7
There is, however, an exception "for diagnosis, prevention or treatment of pregnancy,
8 This exception encourages minors
and for diagnosis and treatment of venereal disease."
not to delay or forgo medical assistance that they might hesitate to discuss with their
parents. The Parental Notification Law, then, is an exception to the exception: It
requires pregnant minors seeking to terminate their pregnancies to notify their parents
or seek a judicial bypass before doing so.
Pregnant minors seeking to carry their pregnancies to term and pregnant
minors seeking to terminate their pregnancies do not face the same choice about whether
to seek medical assistance. Although she would surely be wise to visit a doctor, the
pregnant minor who seeks to carry her pregnancy to term does not necessarily need
medical treatment to achieve her aims. The pregnant minor who seeks to terminate her
5 Planned Parenthood II , 171 P.3d at 582.
6
Pub. Emps. Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007).
7
See AS 25.20.025.
8
AS 25.20.025(a)(4).
-46- 7114
----------------------- Page 47-----------------------
9
pregnancy, in contrast, cannot do so without medical treatment. As the superior court
noted, "once a minor elects an imminent abortion, the core rationale underpinning
medical emancipation no longer applies to her; she no longer requires encouragement to
see a doctor to protect her own health or that of her fetus." Instead, she must seek
medical treatment, and the risk of delay or avoidance that animates the exception to the
general parental consent requirement for "diagnosis, prevention or treatment of
pregnancy, and for diagnosis and treatment ofvenerealdisease"is qualitatively different.
The State may not discriminate between women in order to influence their
10 And carrying a pregnancy to term may entail risks to a minor's
reproductive choices.
physical and mental health that are equal to the corresponding risks from terminating a
pregnancy. But pregnant minors seeking to carry their pregnancies to term and pregnant
minors seeking to terminate their pregnancies face significantly different incentives to
delay or avoid medical assistance and significantly different risks from that delay or
avoidance. Thus, an equal protection analysis of the Parental Notification Law should
not treat these groups as similarly situated.
Moreover, in Planned ParenthoodII "wedetermine[d]that theconstitution
permits a statutory scheme which ensures that parents are notified so that they can be
engaged in their daughters' important decisions" in matters related to pregnancy.11 By
holding up parental notification laws as a less restrictive alternative to the parental
consent law then at issue, we indicated that at least some such laws would pass
9 See AS 18.16.010(a) ("An abortion may not be performed in this state
unless . . . by a physician . . . in a hospital or other facility approved for the purpose.").
10 See State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska,
28 P.3d 904, 913 (Alaska 2001).
11 171 P.3d 577, 579 (Alaska 2007).
-47- 7114
----------------------- Page 48-----------------------
12
constitutional muster. But the court today calls that determination into question. In
order to give similar treatment to minors seeking to carry to term and minors seeking to
terminate their pregnancy - and thus to survive the court's equal protection analysis -
a notification statute would have to require parental notice of all pregnancy-related care.
Yet none of the notification statutes we cited as alternatives in Planned Parenthood II
require such universal notice for all pregnant minors, and thus they would likely fail
13 For these reasons, I respectfully disagree
under the court's equal protection analysis.
with the court's application of our equal protection doctrine here. Instead, I believe that
the appropriate lens through which to analyze the parental notification law at issue in this
case is the right to privacy, and I turn to that analysis next.
12 Although the parties raised the equal protection question in that case, we
determined that we did not need to reach it. See id. at 581 n.21. But by explaining that
"the constitution permits" a parental notification law, we strongly suggested that such a
law might pass constitutional muster more broadly, as long as it struck "the proper
constitutional balance between the State's compelling interests and a minor's
fundamental right to privacy." Id. at 579.
13 See id. at 583 n.40; DEL. C ODE ANN . tit. 24, § 1783 (2015); F LA. S TAT.
A. C ODE ANN . § 15-11-682 (2015); 750 I LL. C OMP. S TAT. 70/15
§ 390.01114 (2015); G
OWA CODE § 135L.3 (2015); MD. CODE ANN ., HEALTH-GEN. § 20-103 (West
(2015); I
INN. S TAT. § 144.343 (2015); N.H. R EV. S TAT. A NN . § 132:33 (2015); S.D.
2015); M
CODIFIED LAWS § 34-23A-7 (2015); W. V A. C ODE § 16-2F-3 (2015); see also COLO.
REV. S TAT. § 12-37.5-104 (2015), invalidated by Planned Parenthood of the Rocky
Mountains Servs., Corp. v. Owens , 287 F.3d 910 (10th Cir. 2002) (holding the statute
unconstitutional because it failed to include an exception for the health of the pregnant
minor).
-48- 7114
----------------------- Page 49-----------------------
II. THE LAW VIOLATES THE RIGHT TO PRIVACY.
14
The right to privacy, enshrined in the Alaska Constitution,
protects the
15
fundamental right to reproductive choice for minors as well as adults. A law that
burdens this interest "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
16
interest."
In Planned Parenthood II we held that a parental consent law failed strict
scrutiny by prohibiting a pregnant minor from terminating her pregnancy without first
17
obtaining the consent of her parents, unless she had been granted a judicial bypass.
That parental consent law was not the least restrictive means of achieving the State's
interests because "[t]here exists a less burdensome and widely used means of actively
18
involving parents in their minor children's abortion decisions: parental notification."
This does not mean, however, that any and all parental notification laws comport with
strict scrutiny; as we recognized, "parental notification statutes undoubtedly burden the
19 These laws must still achieve their aims without any
privacy rights of minors."
unnecessary burden on minors' privacy rights; that is, they must use the least restrictive
means of achieving the State's compelling interests. The parental notification law at
issue here does not achieve its goals using the least restrictive means: In fact, it is one
14 See Alaska Const. art. I, § 22 ("The right of the people to privacy is
recognized and shall not be infringed.").
15 See Planned Parenthood II, 171 P.3d at 581-82.
16 Id. at 582.
17 See id. at 583.
18 Id. at 579.
19 Id. at 584.
-49- 7114
----------------------- Page 50-----------------------
of the most restrictive laws of its type in the country. The fact that other states achieve
the same interests by significantly less restrictive means indicates that Alaska's Parental
Notification Law is not narrowly tailored.
When undertaking a review of this statute as a whole, it becomes evident
that the law's methods are not the least restrictive means available to advance the State's
recognized compelling interests. First, the standard of proof for a court exemption from
the notice requirement is clear and convincing evidence -the strictest standard of proof
in the country for any such law. Although the superior court enjoined this aspect of the
statute, the State and its co-appellants appeal that ruling, which requires us to address
whether the standard of proof survives strict scrutiny. The law recognizes three grounds
for judicial bypass: (1) sufficient maturity; (2) physical, sexual, or repeated emotional
20 is not in the minor's best
abuse by the parent or guardian; and (3) that parental consent
interest.21 Each of these must be proved by clear and convincing evidence.22 Only three
other notice states require a minor to prove her sufficient maturity by clear and
23 only two require her to prove that notice would not be in her best
convincing evidence;
interest by that standard.24 And not one of the six states that provide for bypass on
20 This reference to parental consent appears to be an anomaly in the statute,
in which parental notice otherwise replaced parental consent.
21 AS 18.16.030(b)(4)(A)-(B).
22 AS 18.16.030(e)-(f).
23 See FLA. STAT. § 390.01114(4)(c); S.D. CODIFIED LAWS § 34-23A-7; see
also COLO. REV. STAT. § 12-37.5-107(2)(a), invalidated by Planned Parenthood of the
Rocky Mountains Servs., Corp. v. Owens, 287 F.3d 910 (10th Cir. 2002).
24 See FLA. STAT. § 390.01114(4)(d); S.D. CODIFIED LAWS § 34-23A-7.
Florida has a separate abuse ground for bypass that need only be proved by a
(continued...)
-50- 7114
----------------------- Page 51-----------------------
grounds of abuse (rather than folding evidence of abuse into the best interest inquiry)
requires proof by clear and convincing evidence. 25
The standard of proof can have a real, significant impact on these cases:
As observed in the child custody context, "in close cases, a higher standard of proof will
place the risk of erroneous factfinding on the child."26 Here, that risk is acute. The
"clear and convincing" requirement in the Parental Notification Law would require that
a trial court deny a judicial bypass to some minors even if it finds that they are likely
(though not clearly and convincingly) sufficiently mature, or victims of abuse, or best
served by a bypass. The high standard of proof yields a particularly stark outcome in the
case of a minor who has been abused by a parent or guardian, where a trial judge would
be required to deny judicial bypass for a pregnant minor who was likely abused by her
own parent but cannot provide sufficient evidence to satisfy the clear and convincing
24 (...continued)
preponderance of the evidence, limiting the severity of this standard of proof for the best
LA. S TAT. § 390.01114(4)(d).
interest analysis. See F
25 See FLA. S TAT. § 390.01114(4)(d) (no notice required if court finds abuse
by preponderance of the evidence); 750 I LL. C OMP. S TAT. 70/20(4) (no notice required
if minor declares abuse or neglect to physician in writing); IOWA CODE
§ 135L.3(3)(m)(4)-(5) (no notice required if minor declares abuse to physician and it has
D. CODE ANN ., HEALTH-GEN.
been previously reported to authorities); M
§ 20-103(c)(1)(i) (no notice required if physician judges that notice may lead to abuse);
MINN. S TAT. § 144.343(4)(c) (no notice required if minor declares abuse or neglect to
physician, who must then report abuse); see also COLO. R EV. S TAT. § 12-37.5-105(1)(b)
(no notice required if minor declares abuse or neglect to physician), invalidated by
Planned Parenthood of the Rocky Mountains Servs. , 287 F.3d 910.
26 Evans v. McTaggart, 88 P.3d 1078, 1095 (Alaska 2004) (Fabe, C.J.,
dissenting).
-51- 7114
----------------------- Page 52-----------------------
27
standard. It may be especially hard for a minor to meet this standard of proof in such
familial abuse cases, where "a child's report of a parent's [abusive] conduct is often the
28 As in the child custody context where this issue has
primary source of evidence."
previously been discussed, "[e]ven if it is not debatable that the parent's actions are
[abusive], the lack of corroboration - particularly in light of a parent's denial - may
mean that the child's report, although providing a preponderance of the evidence, will
fail to satisfy the clear and convincing standard."29 In such a case, the trial court would
be required to deny judicial bypass. Given the balance of rights and interests involved,
this outcome can hardly be viewed as the least restrictive means of achieving a
compelling state interest. Thus the burden of proof for the judicial bypass procedure fails
strict scrutiny.
Second, the only other way for an abused minor to avoid the parental
notification requirement is for the abuse to be documented in a notarized statement
signed by a witness who has "personal knowledge of the abuse" and who is a law
enforcement officer, a Health and Social Services investigator, or a grandparent,
stepparent, or sibling over the age of 21.30 Here again, the requirements of the law clash
with the realities of a pregnant minor who has been abused by a parent yet must seek
corroborating evidence from her own family or from a government official to prove it.
Because much familial abuse is not susceptible to outside witness, or may only be
witnessed by another family member who is not willing to testify, in practice this option
27 AS 18.16.030(b)(4)(B), (f).
28
Evans, 88 P.3d at 1097 (Fabe, C.J., dissenting).
29 Id.
30
AS 18.16.020(a)(4).
-52- 7114
----------------------- Page 53-----------------------
31
will likely be foreclosed to many of the young women it is designed to protect.
Requiring a signed and notarized declaration from a witness, therefore, unduly restricts
these minors' rights. Nor does the judicial bypass -even if it were not overly restrictive
itself - cure the unreasonably restrictive nature of this provision. As we held in
Planned Parenthood II, "the inclusion of [a] judicial bypass procedure does not reduce
32 So for a daughter who was abused by
the restrictiveness" of the provision in question.
a parent or guardian - perhaps the very person she is required to notify under this
law - neither the judicial bypass nor the witnessed declaration provides a
constitutionally adequate alternative to the law's parental notification requirement.
Third, the Parental Notification Law burdens physicians and all involved
families by imposing verification requirements that have no analogue in the notification
laws of other states. Most of the 11 states other than Alaska that have notification laws
do not specify how the identity of a notice recipient is to be established, and those that
do simply require that the recipient produce government-issued identification33 or that
34 In
the physician record the number dialed and the date and time of the phone call.
31 As the superior court explained, witnesses at trial testified that the
opportunity for exemption by means ofawitnessed affidavit is "largelyillusory"because
it requires the minor to disclose her pregnancy to a family member who witnessed the
abuse but "who has to that moment remained silent." And as the superior court
recognized, "[i]t is unlikely that an adolescent would recall the name of an OCS worker
or a police officer who was involved with the family at a prior time, or will desire to
reveal her pregnancy to such a stranger." Therefore, the superior court concluded, "only
a small percentage of abuse victims will avail themselves of the [law's] affidavit-of-
abuse exception to notice."
32 171 P.3d 577, 584 (Alaska 2007).
33 See GA. CODE ANN . §§ 15-11-681(2); 15-11-682(a)(1)(A).
34 See FLA. STAT. § 390.01114(3)(a).
-53- 7114
----------------------- Page 54-----------------------
contrast, Alaska's Parental Notification Law imposes a burden that is not found in any
other state's statute by requiring that any in-person notice recipient "show
government-issued identification along with additional documentation of the person's
35 and that the physician delivering notice by phone "attempt[]
relationship to the minor,"
to verify through a review of published telephone directories that the number to be dialed
is that of the minor's parent, legal guardian, or custodian, and ask[] questions of the
person to verify that the person's relationship to the minor is that of parent, legal
guardian, or custodian."36 As the superior court recognized, the additional
documentation requirement for in-person notice "clashes with the realities of rural
Alaska." These documentation requirements also mean that a doctor has not fulfilled the
statute's notice requirement even after giving in-person notice to a parent who is fully
aware of a daughter's decision to terminate her pregnancy but has misplaced her birth
certificate. Furthermore, the law requires the physician to deliver notice himself or
37
herself rather than permitting delegation of this responsibility to medical office staff.
This is a far more burdensome approach than that selected by other states, the vast
majority of which statutorily allow someone other than the physician to deliver notice.38
35 AS 18.16.020(b)(1).
36
AS 18.16.020(b)(2).
37 AS 18.16.020(b). TheStateand its co-appellants do not appeal the superior
court's injunction against the law's requirement that the physician personally deliver
notice in all cases, but we nonetheless review this provision in reviewing the
constitutionality of the statute as a whole.
38 See DEL. C ODE ANN . tit. 24, § 1783(1) (notice may be provided by, among
others, an agent of the physician); G A. C ODE ANN . § 15-11-682(a)(1)(B) (notice may be
provided by the physician's qualified agent); 750 I LL. C OMP. S TAT. 70/15 (notice may
INN. S TAT. § 144.343(2)(a) (same); N.H. R EV.
be provided by the physician's agent); M
(continued...)
-54- 7114
----------------------- Page 55-----------------------
Thus, this parental notification scheme is not the least restrictive means of advancing the
State's compelling interests.
Fourth, the statute's imposition of civil liability for all violations of the
Parental Notification Law is more punitive and chilling than penalties in equivalent
notification laws in other states. Again, although the superior court enjoined the
operation of this portion of the statute, the State and its co-appellants argue that the
injunction against it should be lifted. Of the five states that make physicians civilly liable
39 Only
for failure to provide notice, two require that the physician's failure be "willful."
one of the remaining three discusses punitive damages, and then only to clarify that the
statute does not specifically prohibit such damages.40 In contrast, Alaska's Parental
Notification Lawexplicitly allows punitivedamagesagainstphysicianswithoutrequiring
41 This is yet another way in which this statute is an outlier,
any finding of willfulness.
at odds with our constitution's express recognition of the fundamental right to privacy
and its requirement that any burden on that right must be the least restrictive means of
achieving a compelling government interest.
38 (...continued)
STAT. A NN . § 132:33(II) (same); S.D.C ODIFIED LAWS § 34-23A-7 (same); W. V A. C ODE
§ 16-2F-3(a) (requirement met if "physician has given [notice] or caused [notice] to be
given"); see also COLO. R EV. S TAT. § 12-37.5-104(1)(a) (notice may be provided by,
among others, any person older than 18 who is not related to the minor), invalidated by
Planned Parenthood of the Rocky Mountains Servs., Corp. v. Owens , 287 F.3d 910 (10th
Cir. 2002).
39 See S.D. C ODIFIED LAWS § 34-23A-22; see also COLO. R EV. S TAT. § 12-
37.5-106(1), invalidated by Planned Parenthood of the Rocky Mountains Servs., 287
F.3d 910.
40 See DEL. C ODE ANN . tit. 24, § 1789B; see also MINN. S TAT. § 144.343(5)
(establishing civil liability but not damages); N.H. R EV. S TAT. A NN . § 132:35 (same).
41 See AS 18.16.010(e).
-55- 7114
----------------------- Page 56-----------------------
Fifth, I cannot conclude that the specter of a felony conviction and five
42
years imprisonment for any person who knowingly violates the notice requirement is
narrowly tailored to advance a compelling state interest. Four notification states have
43 Another six make violation a
no criminal penalty attached to their notification laws.
misdemeanor.44 Only one makes it a felony, and even there a violation of the notice
requirement is the lowest class of felony, with a maximum of two years imprisonment.45
The Parental Notification Law's criminal penalty is by far the most severe of any state,
demonstrating that it is not the least restrictive means of enforcing a notification law.
And although the Parental Notification Law fails the least-restrictive-means analysis
even without reference to its criminal penalties, these penalties are a further indication
that the law's provisions are not narrowly tailored.
Furthermore, the law as originally adopted contained still more elements
that fail the least-restrictive-means test. For example, the law as enacted allowed
constructive notice to be mailed only after 24 hours of failed attempts at telephonic
46
notice, and it applied even when medical conditions rendered fetal death inevitable.
42 See AS 18.16.010(c).
43
See FLA. S TAT. § 390.01114; 750 I LL. C OMP. S TAT. 70/40 (no criminal
penalty for physicians, misdemeanor for unauthorized signing of waiver of notice); M D.
ODE ANN ., H EALTH-GEN. § 20-103 (no criminal penalty for physicians); see also COLO.
C
REV. S TAT. § 12-37.5-106, invalidated by Planned Parenthood of the Rocky Mountains
Servs., 287 F.3d 910.
44 See DEL. C ODE ANN . tit. 24, § 1789; GA. C ODE ANN . § 15-11-688; I OWA
CODE § 135L.3(3)(n); M INN. S TAT. § 144.343(5); N.H. R EV. S TAT. A NN . § 132:35;
A. C ODE § 16-2F-8.
W. V
45 See S.D. CODIFIED LAWS §§ 22-17-5, 22-6-1.
46 See AS 18.16.020(c). Although the superior court construed the statute to
(continued...)
-56- 7114
----------------------- Page 57-----------------------
These aspects of the law further demonstrate that the statutory scheme as designed was
one of the most restrictive and burdensome in the country.
And not only does this law achieve its aims by overly restrictive methods,
it also adopts an overly expansive scope by sweeping in minors whose maturity in
reproductive choices the legislature has formerly recognized. The parental consent act
47 Both
we considered in Planned Parenthood II applied only to minors 16 and younger.
the court and the dissent in that case noted that this represented "a serious effort to
narrowly tailor the scope of the [Parental Consent Act]"48 by excluding "the population
of teenage girls most likely competent, by virtue of maturity and experience, to make the
decision regarding abortion without adult assistance."49 The notification law at issue in
this appeal does not demonstrate a serious effort at narrow tailoring. Indeed, while a 17-
year-old living independently from her parents may make her own, uninfluenced
decisions about all other medical questions,50 the Parental Notification Law would not
51 a decision
allow her the same independence with regard to her reproductive choice,
46 (...continued)
avoid these two particular problems, their inclusion in the original statutory text provides
yet another indication that the law as enacted did not use the least restrictive means
available.
47 See Planned Parenthood II, 171 P.3d 577, 583 (Alaska 2007).
48 Id.
49 Id. at 587 (Carpeneti, J., dissenting).
50 See AS 25.20.025(a)(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.").
51 AS 18.16.010(a)(3) (parental notification law applies to all "pregnant,
(continued...)
-57- 7114
----------------------- Page 58-----------------------
protected by her fundamental right to privacy. The fact that the law reaches the minors
least likely to need protection from their own immaturity again indicates that its scope
is not narrowly tailored. Although this list of the ways that the law's methods infringe
on a minor's constitutional right to privacy is not meant to be exhaustive, it is more than
adequate to establish that the Parental Notification Law cannot stand.
III. THE UNCONSTITUTIONAL PROVISIONS ARE NOT SEVERABLE.
The law's provisions that violate the right to privacy affect virtually every
aspect of the notification process. From the notification mechanism, to the law's scope,
to its civil and criminal penalties, to the judicial bypass procedure, and even to the
provision excusing notice in the case of an abused minor, these constitutionally intrusive
provisions reach the point where "their invalidation so undermines the structure of the
52 Our severability doctrine rests on the test
Act as a whole that the entire Act must fall."
set out in Lynden Transport, which "asks (1) whether 'legal effect can be given' to the
severed statute and (2) if 'the legislature intended the provision to stand' in the event
other provisions were struck down."53
We later explained that "Lynden Transport is the
test for severability of enacted measures, whatever their source" - including for laws
54 I believe that the
adopted by a ballot measure, like the Parental Notification Law.
remaining, constitutionally valid portions of the Parental Notification Law would not
satisfy this test.
51 (...continued)
unmarried, unemancipated wom[e]n under 18 years ofage"); AS09.55.590 (establishing
judicial process by which a minor can be emancipated).
52 State v. Alaska Civil Liberties Union, 978 P.2d 597, 633 (Alaska 1999).
53 Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 209 (Alaska
2007) (quoting Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975)).
54 Id. at 209-10.
-58- 7114
----------------------- Page 59-----------------------
The "legislative intent" prong of our severability test incorporates the
widely accepted principle that "the touchstone for any decision about remedy is
legislative intent, for a court cannot 'use its remedial powers to circumvent the intent of
55 In assessing legislative intent, our recent cases have considered
the legislature.' "
whether the act in question contained a severability clause, reading such a clause as the
primary "indicat[ion] that the legislature intended the remainder of the Act to stand if
part of it were invalidated."56 In both Alaskans for a Common Language v. Kritz and
State v. Alaska Civil Liberties Union, the presence of a severability clause was central
to our conclusion that the remaining portions of the acts could stand alone after severing
the constitutionally invalid portions. Other state high courts and the U.S. Supreme Court
have taken a similar approach to severability clauses, generally removing only the
challenged portions if a severability clause exists but striking the entire law in the
absence of such a clause.57
55 Ayotte v. Planned Parenthood of N. New England , 546 U.S. 320, 330
(2006) (quoting Califano v. Westcott , 443 U.S. 76, 94 (1979)) (Powell, J., concurring in
part and dissenting in part).
56 Alaskans for a Common Language , 170 P.3d at 209 (quoting Alaska Civil
Liberties Union, 978 P.2d at 633).
57 E.g., Ayotte , 546 U.S. at 331 (allowing certain portions of the challenged
law to stand in part because "the Act contains a severability clause"); Ruiz v. Hull, 957
P.2d 984, 1002 (Ariz. 1998) ("[W]e decline to sever the invalid portions of the
Amendment . . . because [it] does not contain a severability clause and . . . because the
record is devoid of evidence that the voters would have enacted such a rewritten and
essentially meaningless amendment."); Dallman v. Ritter, 225 P.3d 610, 638 (Colo.
2010) (holding that, when assessing "the autonomy of the portions remaining" and "the
intent oftheenacting legislativebody,"thecourt "must takeinto account any severability
clause, which demonstrates the lawmaking body's intent that the law remain largely in
force despite particular, limited infirmities").
-59- 7114
----------------------- Page 60-----------------------
The Parental Notification Law did not contain a severability clause. The
omission of a severability clause is particularly illuminating here, given that the
58 that the enacted
initiative's sponsors had reason to know, based on this law's history,
law might face a challenge on constitutional grounds. I do not suggest that a severability
clause is dispositive: Indeed, the presence of a severability clause does not necessarily
mean that a statute's constitutionally invalid provisions are severable fromthe remainder
of the statutory scheme.59 But here the absence of a severability clause weighs in favor
of finding that the invalid portions of the law are not severable and thus that the entire
act must fall.
Moreover, we have held that a law will fail the legislative intent prong if
the remainder of the law is not "independent and complete in itself" so that we may
presume the remaining, valid portions were intended to stand on their own in the event
that the other portions were struck down.60 Here, the constitutional infirmities described
above are pervasive - they touch nearly every aspect of the Parental Notification Law.
If the portions of the law that violate the right to privacy were removed, it would mean
eliminating key elements of the notification requirement, the civil and criminal penalties
for its violation, the judicial bypass procedure, and the alternative provision for
documented abuse of the pregnant minor. The law cannot be considered "independent
58 Planned Parenthood II, 171 P.3d 577 (Alaska 2007); Planned
Parenthood I , 35 P.3d 30 (Alaska 2001).
59 See, e.g., Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 139 (9th Cir.
1980), aff'd, 454 U.S. 1022 (1981) (holding that the entire statute must fall despite the
inclusion of a severability clause).
60 Alaskans for a Common Language, 170 P.3d at 212 (quoting Sonneman v.
Hickel, 836 P.2d 936, 941 (Alaska 1992)).
-60- 7114
----------------------- Page 61-----------------------
61
and complete in itself" in the absence of all these provisions. Thus, under our prior
case law, we cannot presume the remaining portions were intended to stand on their own.
The law therefore fails the legislative intent prong of the Lynden test.
Next, although the failure of one Lynden prong is sufficientto concludethat
the invalid portions cannot be severed, in this case the statute likely fails the "legal
effect" prong of the test as well. Specifically, I have serious doubt that "legal effect can
62 to this law once critical aspects of virtually all the core provisions are found
be given"
unconstitutional. As other courts engaging in similar severability analyses have noted,
the challenged portions of a statute may "represent a vital part of the statutory scheme,"
such that altering or removing them"would create a programquite different fromthe one
the people actually adopted."63 The Ninth Circuit, for instance, has held that
constitutionally flawed provisions of a law cannot be severed when doing so "would
essentially eviscerate the statute."64
The Supreme Court of Colorado undertook a similar analysis in a recent
case challenging an amendment to the state constitution, which limited certain types of
political campaign contributions, and which had been passed by voter initiative.65 After
striking the invalid provisions, the court explained, the entire law must fall "if what
remains is so incomplete or riddled with omissions that it cannot be salvaged as a
61 Id.
62 Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975).
63 Spokane Arcades, Inc., 631 F.2d at 139 (internal alterations omitted)
(quoting Sloan v. Lemon, 413 U.S. 825, 834 (1973)).
64 Id.
65 Dallman v. Ritter, 225 P.3d 610, 616-17, 638-40 (Colo. 2010).
-61- 7114
----------------------- Page 62-----------------------
66
meaningful legislativeenactment." Emphasizing that acourt"cannotrewriteor reshape
67
a law in order to maintain its constitutionality,"
the court ultimately explained that it
was required to "strike the entire law" because "its purpose [was] so eviscerated by
68
necessary nullifications that the original law cannot stand in any working order."
Similarly, the pervasive constitutional infirmities affect every core
provision of the Parental Notification Law. The unconstitutional provisions described
above include elements of the procedure that a doctor must follow under the notification
requirement, the age cutoff for the requirement, the civil and criminal penalties for
violating it, the burden of proof for the judicial bypass - which applies to all three
potential bypass options - and the requirements for the alternative process that an
abused minor may use. In short, the constitutional infirmities touch all four pillars of the
69
statutory framework under the "notice or consent" provision at issue in this case.
Without these pillars, the law cannot stand.
I therefore believe that the constitutionally impermissible provisions
"represent a vital part of the statutory scheme" and that severing them "would essentially
eviscerate the statute."70 Attempting to patch together a constitutional statute from the
remaining portions of the law would effectively be an exercise in rewriting the law. Our
66 Id. at 639 (alterations omitted) (quoting City of Lakewood v. Colfax
Unlimited Ass'n , 634 P.2d 52, 69 (Colo. 1981)).
67 Id. (citing Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,
329 (2006)).
68 Id. (citing City of Lakewood, 634 P.2d at 70).
69 AS 18.16.020(a)(1)-(4).
70 See Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 139 (9th Cir. 1980),
aff'd, 454 U.S. 1022 (1981).
-62- 7114
----------------------- Page 63-----------------------
71 72
own cases, as well as similar approaches used by other courts, caution against
wholesale revision of statutory language in this manner. Nor can we simply modify the
73 becausewemust refrain
constitutionally problematicprovisions asthedissentsuggests,
from this "quintessentially legislative work" of "rewriting [the] law to conform it to
constitutional requirements."74 Thus, at the point where we would be essentially
rewriting every major provision of a statute, the entire statute instead must be struck
down. Here, where the unconstitutional portions of the law affect every element of the
statutory scheme, the law reaches the point where it is so riddled with constitutional
holes that it cannot be salvaged.
Accordingly, becausetheParentalNotification Lawfails both prongs ofthe
Lynden test, I would conclude that the constitutionally invalid portions of the law are not
severable from the remaining provisions, and thus the entire law must fall. I therefore
would hold that the Parental Notification Law impermissibly violates a minor's
fundamental right to privacy because it does not advance the compelling state interest by
71 See, e.g. , State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v.
Alyeska Pipeline Serv. Co. , 262 P.3d 593, 598 (Alaska 2011) (declining to alter the
meaning of a statute even when it was likely misdrafted).
72 Ayotte , 546 U.S. at 329-30 (noting that, when deciding whether to sever a
portion of a statute, courts should refrain from rewriting the law in question); Ruiz v.
Hull, 957 P.2d 984, 1002 (Ariz. 1998) (declining to perform "judicial surgery" because
it would leave a "rewritten and essentially meaningless [law]"); Dallman, 225 P.3d at
638 ("[W]e cannot rewrite or actively reshape a law in order to maintain its
constitutionality." (citing Ayotte , 546 U.S. at 330)).
73 Dissent at 90.
74 Ayotte , 546 U.S. at 329 (quoting Virginia v. Am. Booksellers Ass'n, 484
U.S. 383, 397 (1988)).
-63- 7114
----------------------- Page 64-----------------------
the least restrictive means, and I concur with the court's judgment that the law must be
struck down as violating the Alaska Constitution.
-64- 7114
----------------------- Page 65-----------------------
STOWERS, Justice, dissenting.
I dissent from today's opinion because it unjustifiably departs from our
1 misapplies our equal
earlier approval of parental notification in Planned Parenthood II ,
protection case law by comparing two groups that are not similarly situated, and fails to
consider how other states have handled similar questions related to parental notification
laws. I also disagree with the concurring opinion that the Parental Notification Law
violates the Alaska Constitution's Privacy Clause. But, for argument's sake, even if it
does, I believe that any privacy concerns could be resolved by severing certain
provisions of the Parental Notification Law.
Moreover the majority and concurrence ignore in practical effect the
interests and rights of the State and parents in taking steps to assist a minor who is
seeking an abortion in receiving information and counseling concerning all aspects of
that decision. The United States Supreme Court has clearly explained that the State has
a legitimate right to enact laws designed to encourage a woman contemplating abortion
to be informed regarding the effects that abortion may have on her and regarding
alternatives to abortion. In Planned Parenthood v. Casey, Justice Sandra Day O'Connor
wrote for the Court and stated:
[I]t must be remembered that Roe v. Wade speaks with clarity
in establishing not only the woman's liberty but also the
State's "important and legitimate interest in potential life."
That portion of the decision in Roe has been given too little
acknowledgment and implementation by the Court in its
subsequent cases. Those cases decided that any regulation
touching upon the abortion decision must survive strict
scrutiny, to be sustained only if drawn in narrow terms to
further a compelling state interest. Not all of the cases
1
State v. Planned Parenthood of Alaska, 171 P.3d 577 (Alaska 2007)
(Planned Parenthood II).
-65- 7114
----------------------- Page 66-----------------------
decided under that formulation can be reconciled with the
holding in Roe itself that the State has legitimate interests in
the health of the woman and in protecting the potential life
within her.
. . . .
Though the woman has a right to choose to terminate
or continue her pregnancy before viability, it does not at all
follow that the State is prohibited from taking steps to ensure
that this choice is thoughtful and informed. Even in the
earliest stages of pregnancy, the State may enact rules and
regulations designed to encourage her to know that there are
philosophic and social arguments of great weight that can be
brought to bear in favor of continuing the pregnancy to full
term and that there are procedures and institutions to allow
adoption of unwanted children as well as a certain degree of
state assistance if the mother chooses to raise the child
herself.[2]
In the case before us, the Alaska Legislature enacted a law after Alaska
citizens passed the Parental Notification Act initiative3 requiring that parents be notified
if their minor daughter is seeking an abortion, with exceptions discussed below. One
obvious purpose of this law is to provide the minor's parents the opportunity to discuss
with their daughter the potential effects of and alternatives to abortion. This is beyond
doubt a legitimate interest and right that the State and the parents possess. Contrary to
the Supreme Court's clear statement in this regard, the Alaska Court today trivializes and
makes this right of no effect.
2 Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 871-72
(1992) (internal citations omitted).
3 AS 18.16.010-.040; Alaska Laws Initiative Meas. 2 (Bal. Meas. 2), 26th
Leg., 2d Sess. (2010). See also Planned Parenthood of Alaska v. Campbell, 232 P.3d
725, 727 (Alaska 2010) (discussing the initiative's procedural history).
-66- 7114
----------------------- Page 67-----------------------
I. INTRODUCTION
[T]he right to the care and custody of one's own child is a
fundamental right recognized by both the federal and state
constitutions. This right is one of the most basic of all civil
liberties.[4]
This appeal raises questions about the Parental Notification Law through
the lens of minors' equal protection and privacy rights, but it also raises questions about
parents' fundamental rights to be informed that their minor daughter is seeking an
abortion and parents' rights to discuss this potentially life-changing decision with their
daughter before she undergoes this procedure.5 In 1997 the Alaska Legislature enacted
a law that provided that minors could not obtain abortions without their parents' consent,
6 Planned Parenthood challenged this Alaska Parental
subject to certain exceptions.
4 Seth D. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
175 P.3d 1222, 1227-28 (Alaska 2008) (citations omitted). I acknowledge that this quote
is frequently found in the context of court decisions concerning the termination of
parental rights. But it seems reasonable to conclude that parents' fundamental rights to
provide care for their children include the right to know that their minor daughter is
planning to obtain an abortion and the right to counsel their daughter concerning the
"philosophic and social arguments of great weight" recognized by the Supreme Court in
Planned Parenthood v. Casey , quoted above.
5 The majority argues that the issue before this court has nothing to do with
parents' constitutional rights to parent their children and that this case instead involves
only the questions of whether the Notification Law violates minors' equal protection or
privacy rights. In my view, this case is more about the rights of parents to be informed
about and involved in their daughter's decision to have an abortion than anything else.
Nevertheless, the legal analysis in this dissent responds to the court's majority and
concurring opinions that rest upon equal protection and privacy grounds and conclude
that the Parental Notification Law does not violate either equal protection or the right to
privacy.
6 Ch. 14, §§ 1-10, SLA 1997.
-67- 7114
----------------------- Page 68-----------------------
7
Consent Act, arguing that it violated the minors' rights to privacy and equal protection.
In a 3-2 decision, the Alaska Supreme Court agreed with Planned Parenthood that the
Parental Consent Act violated the minors' rights to privacy and decided that it did not
8 But notably, the court majority gave its
need to reach the equal protection challenge.
repeated, unambiguous blessing to a law upholding parents' rights to be notified that
their minor daughter is seeking an abortion:
We decide today that the State has an undeniably compelling
interest in protecting the health of minors and in fostering
family involvement in a minor's decisions regarding her
pregnancy . . . . [ W]e 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.[9]
The court explained its rationale why a parental notification statute, as opposed to a
parental consent statute, is constitutionally permissible:
There exists a less burdensome and widely used means of
actively involving parents in their minor children's abortion
decisions: parental notification. 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 minor's abortion
7 Planned Parenthood II , 171 P.3d 577, 580 (Alaska 2007).
8 Id . at 581 n.21, 585. In my view, the dissenting opinion in Planned
Parenthood II, authored by Justice Carpeneti and joined in by Justice Matthews, is a far
more compelling resolution of the privacy argument raised in that case. See id. at 585-98
(Carpeneti, J., dissenting). I can only echo Justice Carpeneti's remarks in Planned
Parenthood II, which I find equally applicable to this appeal: "Because this court's
rejection of thelegislature's thoughtful balance is inconsistent with our own case law and
unnecessarily dismissive of the legislature's role in expressing the will of the people, I
respectfully dissent." Id . at 585.
9 Id . at 579 (emphasis added) (majority opinion).
-68- 7114
----------------------- Page 69-----------------------
decision." 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 State's interests and therefore cannot be
sustained.[10]
The court concluded by again lauding the benefits of a parental notification statute in
language that, given today's decision, can only be regarded as ironic:
These expressed legislative goals - increased parental
communication, involvement, and protection - are no less
likely to accompany parental notification than the parental
"veto power" [over a minor's decision to have an abortion].
. . . .
Notification statutes protect minors by enhancing the
potential for parental consultation concerning a [minor's]
decision. In fact, to the extent that parents who do not have
a "veto power" over their minor children's 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 notificationrequirementmayactually
better serve the State's compelling interests.[11]
In reasonable reliance on the court's approval of parents' rights to be
notified of their daughters' intent to have an abortion, the Alaska Legislature enacted the
Parental Notification Law in accordance with a voter initiative passed by Alaska
10 Id . (quoting Ohio v. Akron Ctr. for Reproductive Health , 497 U.S. 502, 511
(1990)) (emphasis added).
11 Id . at 585 (second alteration in original) (emphasis added) (citations
omitted).
-69- 7114
----------------------- Page 70-----------------------
12
citizens. Planned Parenthood again challenged this law, arguing that it violated the
minors' rights to privacy and equal protection. The superior court, mindful of the
supreme court's unqualified approval of a law recognizing parents' rights to be notified
that their minor daughter is seeking an abortion, held that the Parental Notification Law
did not violate minors' rights to equal protection. Superior Court Judge John Suddock
cogently explained:
It is hard to fathom the Alaska Supreme Court overturning
the [Parental Notification Law] on equal protection grounds
notwithstanding Planned Parenthood II 's privacy-clause
affirmance . . . . When a minor decides to opt out of
pregnancy, she is no longer similarly situated with other
pregnant minors with respect to the familial consultation
issue. Accordingly, this court holds that the [Parental
Notification Law] does not violate Alaska's equal protection
clause.
But today a majority of the supreme court inexplicably walks back on its
broad pronouncements in Planned Parenthood II and holds that theParentalNotification
Law unconstitutionally violates pregnant minors' rights to equal protection. The
majority does so by the expedient of finding that pregnant minors who seek abortions are
similarly situated to minors who wish to carry their pregnancies to term - an untenable
conclusion. The determination that two groups are similarly situated is a finding of
12 AS 18.16.010-.040; Alaska Laws Initiative Meas. 2 (Bal. Meas. 2), 26th
Leg., 2d Sess. (2010). See also Planned Parenthood of Alaska v. Campbell, 232 P.3d
725, 727 (Alaska 2010) (discussing the initiative's procedural history).
-70- 7114
----------------------- Page 71-----------------------
13
fact, subject to reversal by an appellate court only if the trial court that made that factual
finding clearly erred. 14
13 The majority today does not agree that whether two groups are similarly
situated is a question of fact. The majority acknowledges that this court has held in a
unanimous decision as recently as two years ago that "[w]hether two entities are
similarly situated is generally a question of fact." State v. Schmidt , 323 P.3d, 647, 655
(Alaska 2014). But today, being confronted with this inconvenient holding, the majority
now claims that this statement "may have created some ambiguity about the standard of
review for 'similarly situated' when examining an equal protection challenge under the
'shorthand analysis' - is it a question of fact or is it a mixed question of fact and law?"
Opinion at 26. The majority rationalizes that "rather than resolving the 'similarly
situated' issue purely as a factual matter" in Schmidt, "we considered the superior court's
factual findings . . . and held as a matter of law that same-sex couples who would marry
if allowed to do so were . . . similarly situated to married couples." Opinion at 26 n.82.
But the majority also claims that "[w]e do not need to address that question [raised by
Schmidt regarding the 'similarly situated' standard of review] here" because we are not
using a shorthand analysis. Opinion at 26-27.
The standard of review can be critical to the outcome of a case. If the issue
presented concerns a factual finding by the trial court, this court will review that finding
under a very deferential clear error standard: only if the trial court's finding is clearly
erroneous will we reverse that finding. Planned Parenthood II , 171 P.3d at 581. But if
the issue presented involves a question of law, this court will be free to substitute its own
judgment for that of the trial court. This court reviews such questions de novo, adopting
the rule of law "in light of precedent, reason, and policy." Id .
It is ironic, at the least, that themajoritytoday must disavow precedent even
with respect to the standard of review in order to also disavow its approval of a parental
notification law repeatedly championed in Planned Parenthood II . The law on the
standard of review had been settled and is straightforward: whether the two groups are
similarly situated has been traditionally understood to be a question of fact. Now the
majority unjustifiably uses its "independent judgment" to "clarify" the law to avoid
applying the clearly erroneous standard of review to the superior court's factual finding
that minors seeking abortions are not similarly situated to minors who want to carry their
pregnancies to term.
14 Schmidt, 323 P.3d at 655 (" 'Whether two entities are similarly situated is
(continued...)
-71- 7114
----------------------- Page 72-----------------------
In this case the superior court found, reasonably, that minors who seek
abortions are not similarly situated to minors who want to carry their pregnancies to
term. This determination, with which the concurrence agrees, is self-evident. What
similarity can there be between a decision to terminate life and a decision to preserve
life? Yet the majority concludes, erroneously and in sweeping language, that
"vindicating the State's compelling interest in encouraging parental involvement in
minors' pregnancy-related decisions does not support the Notification Law's disparate
treatment of the two [similar] classes of pregnant minors," that is to say, minors who
wish to abort their pregnancies and minors who wish to carry their pregnancies to term.
This court has previously proclaimed that "it is the right and duty, privilege
and burden, of all parents to involve themselves in their children's lives; to provide their
children with emotional, physical, and material support; and to instill in their children
15 The Parental
'moral standards, religious beliefs, and elements of good citizenship.' "
Notification Law focuses on the State's interest in "aiding parents in fulfilling their
16 by upholding the parents' rights to be notified of a significant
parental responsibilities"
medical decision involving their minor daughter, and to at least have the opportunity to
counsel their child regarding this important decision and its lasting consequences. The
court's decision today totally undermines the parents' rights and responsibilities in this
regard and makes a mockery of its earlier proclamations of the proper and fundamental
role parents have traditionally played in their children's lives.
14 (...continued)
generally a question of fact,' reviewed for clear error." (citing Alaska Inter-Tribal
Council v. State, 110 P.3d 947, 967 (Alaska 2005))).
15 Planned Parenthood II, 171 P.3d at 583 (quoting Wisconsin v. Yoder,
406 U.S. 205, 233 (1972)).
16 Id. at 582.
-72- 7114
----------------------- Page 73-----------------------
Under its ruling today, no parental notification law recognizing parents'
fundamental legal rights to notification of, much less meaningful involvement in, their
minor daughters' decisions to have abortions will be upheld by this court under its
strained jurisprudence defining minors' rights to equal protection. And notwithstanding
its broad approval in Planned Parenthood II of a parental notification law being an
acceptable lesser restrictive alternative to a parental consent law, the concurrence's
opinion today that the Parental Notification Law violates a minor's right to privacy
suggests that this court will always find a lesser restrictive alternative that will defeat the
legislature's effort to craft a constitutional parental notification law.
I cannot see how the court can reach these results under our standard of
review for constitutional questions: "adopting the most persuasive rule of law in light
17 I have explained above why the Parental
of precedent, reason, and policy."
Notification Law does not violate equal protection: the two classes of minors are not
similarly situated. Given the critical balance between a woman's right to decide to have
an abortion, the State's legitimate and compelling interests in the health of the minor who
is seeking an abortion, and the parents' fundamental rights to be informed of and
involved in their minor daughter's decision making, I conclude that so long as there is
an effective, reasonably simple way for asufficiently matureminor to bypass the parental
notification requirements under the statute, our precedent, reason, and policy compel
upholding the Parental Notification Law as a legitimate exercise of the people's power
to initiate law and of legislative power to enact law. In the balance, a mature minor's
right to privacy, whatever its contours, is protected by the judicial bypass mechanism
contained in the statute; an immature minor's right to privacy, if any, is not so protected
nor should it be - because she is immature.
17
Id . at 581.
-73- 7114
----------------------- Page 74-----------------------
II. THE PARENTAL NOTIFICATION LAW DOES NOT IN PRACTICE
INHIBIT A MATURE MINOR'S RIGHT TO OBTAIN AN ABORTION.
The Parental Notification Law does not require a minor to obtain parental
consent for an abortion. Furthermore, it neither bars a minor from obtaining an abortion
nor presents significant hurdles for a minor seeking an abortion. Instead, the Parental
Notification Law requires that one of the minor's parents receive 48 hours' notice before
the abortion occurs. And this requirement is not absolute; the law includes a
18
constitutionally necessary exception to protect the minor's life
as well as a judicial
19
bypass mechanism. This judicial bypass mechanism is available to minors who can
demonstrate "that one or both of the minor's parents or the minor's guardian or custodian
was engaged in physical abuse, sexual abuse, or a pattern of emotional abuse against the
minor, or that the consent of a parent, guardian, or custodian otherwise is not in the
20 The bypass is also available to minors who - regardless of the
minor's best interest."
reason - do not wish to have their parents notified and can demonstrate that they are
18 AS 18.16.010(g) (providing an affirmative defense for failing to notify a
minor's parent prior to the abortion when an "immediate threat of serious risk to the life
or physical health of the pregnant minor from the continuation of the pregnancy create[s]
a medical emergency necessitating the immediate performance or inducement of an
abortion"); Roe v. Wade , 410 U.S. 113, 163-64 (1973) ("If the State is interested in
protecting fetal life after viability, it may go so far as to proscribe abortion during that
period, except when it is necessary to preserve the life or health of the mother."
(emphasis added)).
19 See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 899
(1992) ("Our cases establish, and we reaffirm today, that a State may require a minor
seeking an abortion to obtain the consent of a parent or guardian, provided that there is
an adequate judicial bypass procedure." (emphasis added)).
20 AS 18.16.030(b)(4)(B) (emphasis added).
-74- 7114
----------------------- Page 75-----------------------
"sufficiently mature and well enough informed to decide intelligently whether to have
an abortion without notice to . . . a parent, guardian, or custodian."21
Even in the absence of abuse, the bypass process presents an almost
negligible hurdle to access to an abortion with the inclusion of the "mature and
well-informed" language in AS18.16.030(b)(4)(A). Thesuperior court found that under
this broad provision "[i]f an Alaskan minor invokes the sufficient-maturity prong in her
bypass petition, her petition will invariably be granted."22 While filing a petition and
appearing in court may seem to be a challenging experience for a minor, it is not difficult
for an appropriately mature and well-informed minor to obtain judicial bypass, not only
because of the broad scope of the language in AS 18.16.030(b)(4)(A), but also because
access and cost are not barriers in either theory or practice.
First, the statute itself ensures that access and cost are not barriers to
judicial bypass. The statute explicitly provides that an attorney will be appointed if the
23 and that there is no cost to obtain the necessary
minor does not retain one of her own
24 The statute also provides that the minor
forms, file these forms, or appear in court.
must be informed that she may request a telephonic hearing to avoid an in-person hearing
and that the court may excuse a minor from school to participate in her hearing.25
21 AS 18.16.030(b)(4)(A).
22
During the 14 months that this Parental Notification Law was in effect, 9
minors filed bypass petitions. Of those petitions, 8 were granted and 1 was withdrawn.
The superior court also noted that studies from Minnesota and Massachusetts indicated
their rates of denied petitions to be 0.25% and 0.013%, respectively.
23 AS 18.16.030(d).
24 AS 18.16.030(l), (m).
25 AS 18.16.030(n).
-75- 7114
----------------------- Page 76-----------------------
Second, access and cost are not barriers to judicial bypass in practice. The
bypass petition instructions list a toll-free number through which the minor can speak to
a magistrate judge, who may appoint counsel and help direct the minor to the correct
court. Minors may file their bypass petitions via email, fax, mail, or in person. An
Alaska attorney who handled judicial bypass petitions testified in the superior court that
she was able to prepare minors for these hearings by phone and that one of the minors
she represented successfully appeared at the hearing telephonically. She indicated that
all of the petitions she worked on were successful; that she "receives notice from the
court system within an hour or two of a petition's lodging"; that all of her conferences
with the minors occurred within 24 hours of the initial contact; and that all of her bypass
hearings were held within 48 hours of the filing of the petition.
Thus, the Parental Notification Law includes an easily navigable, broad
bypass process, which ensures that the Notification Law does not stand in the way of a
minor's access to abortion. However, even though all petitions under the Parental
Notification Law have been granted so far, this law is necessary for the State to ensure
that in those cases where a minor does not petition to bypass parental notification, the
people society holds responsible for her well-being - her parents - will be informed
of what is happening in her life.
III. EQUAL PROTECTION
A. Our Departure From Planned Parenthood II
In Planned Parenthood II, this court decided "that the State has an
undeniably compelling interest in protecting the health of minors and in fostering family
26 The court concluded,
involvement in a minor's decisions regarding her pregnancy."
however, that the Parental Consent Act burdened a minor's fundamental right to
26
Planned Parenthood II, 171 P.3d 577, 579 (Alaska 2007).
-76- 7114
----------------------- Page 77-----------------------
27
privacy and that even though the State's interests in "protecting minors from their own
immaturity and aiding parents in fulfilling their parental responsibilities" were
28
compelling, the Parental Consent Act could not stand because it failed to use the least
29
restrictive means available to advance the State's compelling interests.
While this court held that theParental ConsentAct improperly balanced the
minor's right to privacy and these compelling government interests, the court also
endorsed "a statutory scheme which ensures that parents are notified so that they can be
30
engaged in their daughters' important decisions in these matters." More specifically,
this court held that "[t]here exists a less burdensome and widely used means of actively
31
involving parents in their minor children's abortion decisions: parental notification."
The court identified the option of parental notification as a constitutionally acceptable
lesser restrictive means of achieving the State's compelling interests; the court claimed
that "[b]ecause 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
32
restrictive means of achieving the State's interests and therefore cannot be sustained."
That last holding was based on the idea that the legislature could have achieved the same
27 Id. at 581-82.
28 Id. at 582.
29
Id. at 583-85.
30 Id . at 579.
31 Id .
32 Id .
-77- 7114
----------------------- Page 78-----------------------
33
goals through less restrictive means: namely, a parental notification law. This was an
explicitendorsementofparental notification. By strikingdown the ParentalNotification
Law, today's decision departs - without any compelling reason - from the court's
decision and rationale in Planned Parenthood II .
Today's majority opinion recognizes this inconsistency and claims that
Planned Parenthood II did not "mean that every conceivable notification law will satisfy
34 The opinion
the separate and independent constitutional equal protection standard."
goes on to proclaim that "the Notification Law stands or falls on its own specific terms
and stated justifications."35 And its reasoning suggests that the legislature could amend
the Parental Notification Law or make further findings that might make a parental
notification statute constitutional under Alaska law.
But the majority's equal protection analysis does not rely on or even
mention the specific terms and shortcomings of this parental notification statute.36
Instead, it focuses on the fact that the statute requires notification when minors choose
to abort but not when they choose to carry to term. Most instructive is the following
statement:
We must conclude that the State's asserted interests do not
justify a distinction between pregnant minors seeking to
terminate and those seeking to carry to term. . . . The
33 Id .
34 Opinion at 17-18.
35 Opinion at 20.
36 Had there been something specific to this notification law that rendered it
unconstitutional the majority's analysis would be expected to look similar to the
concurrence's analysis of the privacy issue. That it does not is telling. Instead, the
majority engages in an unconvincing equal protection analysis, ultimately grounded on
a false similarity between two distinct classes of pregnant minors.
-78- 7114
----------------------- Page 79-----------------------
Notification Law's discriminatory barrier to those minors
seeking to exercise their fundamental privacy right to
terminate a pregnancy violates Alaska's equal protection
guarantee.[37]
But a law requiring parental notification of a minor's abortion necessarily differentiates
between minors seeking an abortion and minors who intend to carry to term. This is
because Alaska minors who intend to carry to term are able to consent to
pregnancy-related care without parental notification or consent.38 The legislature could
have required parental notification for any pregnancy-related treatment of a minor. But
the parties agreed in the superior court that "no useful purpose is served by withdrawing
medical emancipation and requiring parental consultation for carry-to-term decisions."
And the superior court found that medical emancipation for carry-to-term decisions
encouraged minors "to obtain prenatal care [that] advances important interests in
maternal and fetal health." This is all the more important in light of the superior court's
findings regarding the serious health risks pregnant minors face when carrying to term.
Furthermore, the majority of states whose laws we cited in Planned
Parenthood II make a similar distinction.39
37 Opinion at 37.
38 AS 25.20.025(a)(4).
39 Planned Parenthood II , 171 P.3d 577, 583 (Alaska 2007) ("Although the
precise details of [the parental notification statutes cited in note 40 of Planned
Parenthood II] 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 children's decision-making processes." (emphasis added)).
The following list sets forth the status of this distinction in the states we cited in Planned
Parenthood II, note 40: COLO. R EV. S TAT. §§ 12-37.5-101 to -108 (requiring parental
notification), § 13-22-103.5 (providing medical emancipation for care related to an
intended live birth); D EL. C ODE ANN . tit. 13, § 710 (providing medical emancipation for,
(continued...)
-79- 7114
----------------------- Page 80-----------------------
Instead ofexplaining what portionofAS18.16.030 justifies departing from
the court's unqualified approval of parental notification in Planned Parenthood II,
39 (...continued)
inter alia, pregnancy-related care other than abortion to minors age 12 and older),
LA. STAT. § 390.01114
tit. 24, §§ 1780-1789B (requiring parental notification); F
(requiring parental notification), § 743.065(a) (providing medical emancipation for a
minor for pregnancy-related care); G A. C ODE ANN . §§ 15-11-680 to -688 (requiring
parental notification), § 31-9-2(a)(5) (providing every woman with the ability to consent
to medical treatment when related to her pregnancy), § 31-9-5 (specifically excluding
abortion and sterilization from § 31-9-2); 410 ILL. C OMP. S TAT. 210/1 (granting a
pregnant minor the same capacity to act as a person of legal age with respect to medical
consent), 750 I LL. C OMP. S TAT. 70 (requiring parental notification); M D. C ODE ANN .,
EALTH-GEN. § 20-102(c)(4) (permitting a minor to consent to pregnancy-related
H
treatment), § 20-103 (requiring parental notification); MINN. STAT. § 144.343(1)
(permitting a minor to consent to pregnancy-related treatment), § 144.343(2) (requiring
parental notice of abortion); MONT. CODE ANN . § 41-1-402(2)(c) (emancipation
provision) §§ 50-20-501 to -511 (requiring parental consent). Montana enacted a notice
law in 2011 and a consent law in 2013. The 2013 consent statute replaced the 2011
notification statute, but the 2013 statute was enjoined, so the 2011 statute remains in
effect. Planned Parenthood of Mont. v. State , 342 P.3d 684, 687 n.2 (Mont. 2015).
Kansas allows a minor to consent to pregnancy-related care when no parent or guardian
is available. KAN. S TAT. A NN . § 38-123 (allowing a pregnant minor to consent to
pregnancy-related care "where no parent or guardian is available"), §§ 65-6704 to -6705
(requiring parental consent for minor's abortion). Iowa, Nevada, South Dakota, and
West Virginia do not have medical emancipation laws allowing minors to consent to
pregnancy-related medical care, but they do have parental notification laws. IOWA
CODE § 135L.3; NEV. R EV. S TAT. 442.255 (Nevada's parental notification statute is
permanently enjoined. Glick v. McKay , 937 F.2d 434 (9th Cir. 1991) (preliminary
injunction upheld); No. CV-N-85-331-ECR (D. Nev. Oct. 10, 1991) (permanent
ODIFIED LAWS § 34-23A-7; W. V A. C ODE §§ 16-2F-1 to -9.
injunction issued)); S.D. C
New Jersey has a medical emancipation law, but the state's parental notification law was
TAT. ANN . § 9:17A-1 (emancipation provision),
declared unconstitutional. N.J. S
§§ 9:17A-1.1 to -1.12 (requiring parental notification) declared unconstitutional under
state constitution in Planned Parenthood of Cent. N.J. v. Farmer , 762 A.2d 620, 622
(N.J. 2000). Nebraska now requires parental consent. N EB. R EV. S TAT. §§ 71-6901 to
-6908.
-80- 7114
----------------------- Page 81-----------------------
today's opinion suggests that there is something wrong with this notification statute and
that some other notification statute might survive an equal protection challenge. But it
is difficult to see how any parental notification law could survive unless there are
significant changes to Alaska's medical emancipation laws, such that minors intending
to carry to term are subject to parental notification as well. Neither party endorses such
changes.
B. The Two Groups Are Not Similarly Situated.
The Alaska Constitution provides equal protection only among those who
are similarly situated. 40
If the groups being compared are similarly situated "we apply
41
a sliding scale of scrutiny to the challenged practice." "[W]e first determine the
importance of the constitutional right . . . . We then examine the [S]tate's
42
interests . . . . Finally, we consider the means the [S]tate uses to advance its interests."
The majority concedes that there is a "factual difference between the two
classes of pregnant minors." However, the majority concludes that "the State's asserted
interests do not justify a distinction between pregnant minors seeking to terminate and
those seeking to carry to term."
As explained in the Introduction, the Parental Notification Law does not
violate Alaska's guarantee of equal protection because the two groups are not similarly
situated. I agree with the reasoning set forth in the superior court's decision on this
matter, with which the concurrence also agrees.
40 Shepherd v. State, Dep't of Fish & Game , 897 P.2d 33, 44 (Alaska 1995)
("The Equal Rights and Opportunities Clause of the Alaska Constitution requires equal
treatment only for those who are similarly situated ." (emphasis added)).
41 Alaska Inter-Tribal Council v. State , 110 P.3d 947, 966-67 (Alaska 2005).
42 Id. at 967 (footnotes omitted).
-81- 7114
----------------------- Page 82-----------------------
C. A Review Of Other States' Notification And Consent Laws
Today's opinion is also a significant departure from the majority approach
throughout the United States regarding parental rights to notice of or consent to their
43 44 or parental
daughter's abortion. A majority of states have enacted parental notice
43 Contra Opinion at 38 ("Our decision today is not novel.").
44 Twelve other states have active parental notification laws. COLO. R EV.
TAT. §§ 12-37.5-101 to -108; D EL. C ODE ANN . tit. 24, §§ 1780-1789B; F LA. S TAT.
S
A. C ODE ANN . §§ 15-11-680 to -688; 750 I LL. C OMP. S TAT. 70; I OWA
§ 390.01114; G
CODE §§ 135L.1 to L.8; MD. CODE ANN ., HEALTH-GEN. § 20-103; MINN. STAT.
EV. S TAT. A NN . §§ 132:32-36; S.D. C ODIFIED LAWS § 34-23A-7;
§ 144.343; N.H. R
A.C ODE §§ 16-2F-1 to -9; Planned Parenthood of Mont. v. State , 342 P.3d 684, 687
W.V
n.2 (Mont. 2015) (indicating parental consent law is currently enjoined, but parental
notice law is in effect).
-82- 7114
----------------------- Page 83-----------------------
45 46
consent laws that are currently in effect. The Supreme Court of the United States has
47
held that a law requiring parental notification is not unconstitutional under federal law.
Several of these state laws have been challenged and declared constitutional under their
48 including some that have survived equal protection
respective state constitutions,
45 Twenty-six states have active parental consent statutes. ALA. CODE
§§ 26-21-1 to -8; A RIZ. R EV. S TAT. A NN . § 36-2152; A RK. C ODE ANN . § 20-16-801 to
DAHO CODE ANN . § 18-609A (as amended by 2015 I DAHO SESS. L AWS 141); I ND .
-810; I
CODE § 16-34-2-4; K AN. S TAT. A NN . § 65-6705; K Y. R EV. S TAT. A NN . § 311.732; L A.
REV. S TAT. A NN . § 40:1299.35.5; M ASS . G EN. L AWS. ch. 112, § 12S; M ICH. C OMP.
LAWS §§ 722.901-.908; MISS. CODE ANN . §§ 41-41-51 to -63; MO. REV.
STAT. § 188.028; N EB. R EV. S TAT. §§ 71-6901 to -6911; N.C. G EN. S TAT. §§ 90-21.6
ENT. CODE § 14-02.1 to -03.1; OHIO REV. CODE ANN . § 2919.121
to .10; N.D. C
unconstitutional provisions severed in Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d
KLA.S TAT. tit. 63, §§ 1-740.1 to .6; 18 P A.C ONS. STAT. ANN .
361, 364 (6th Cir. 2006); O
EN. L AWS § 23-4.7-6; S.C. C ODE ANN . § 44-41-31; T ENN. C ODE ANN . 37-
§ 3206; R.I. G
10-301 to -308; T EX. O CC. C ODE ANN . § 164.052(a)(19); U TAH CODE ANN . § 76-7-
304.5; V A.C ODE ANN .§ 16.1-241(W) (creating a process whereby a minor may petition
a court for the ability to consent to an abortion), § 54.1-2969(J) (excluding abortion from
a list of procedures to which a minor may independently consent unless the minor
complies with § 16.1-241); W IS. S TAT. § 48.375; W YO. S TAT. A NN . § 35-6-118. But see
CAL. H EALTH & S AFETY CODE § 123450 (requiring parental consent) invalidated under
state constitution in Am. Acad. of Pediatrics v. Lungren , 940 P.2d 797, 800 (Cal. 1997).
46 The majority argues that I cite these jurisdictions without "[r]elevant
inquiries about each jurisdiction's laws." Opinion at 39. But in Planned Parenthood II
the dissent cited these jurisdictions for similar propositions, and I believe it is fair to cite
them for similar purposes here. Planned Parenthood II, 171 P.3d 577, 596
(Alaska 2007) (Carpeneti, J., dissenting).
47 H.L. v. Matheson, 450 U.S. 398, 409 (1981) (citing Bellotti v. Baird, 443
U.S. 622, 640, 649 (1979)).
48 Ex parte Anonymous, 531 So. 2d 901, 905 (Ala. 1988); Planned
Parenthood Ariz., Inc. v. Am. Ass'n of Pro-Life Obstetricians &Gynecologists, 257 P.3d
181, 186 (Ariz. App. 2011); Hope Clinic for Women, Ltd. v. Flores, 991 N.E.2d 745,
(continued...)
-83- 7114
----------------------- Page 84-----------------------
49
challenges. Only one state upholding parental notification or consent in the face of an
equal protection challenge has equal protection language so different from our own that
it would impact the analysis in this dissent. 50
Having previously stricken the Parental Consent Act and now holding the
Parental Notification Law unconstitutional places Alaska out of the mainstream of
48 (...continued)
765-69 (Ill. 2013); In re Doe, 407 So. 2d 1190 (La. 1981) (per curiam); Planned
Parenthood League of Mass., Inc. v. Att'y Gen., 677 N.E.2d 101, 106 n.10 (Mass. 1997);
Pro-Choice Miss. v. Fordice, 716 So. 2d 645, 656-60 (Miss. 1998); cf. Planned
Parenthood of Kan. v. Nixon, 220 S.W.3d 732 (Mo. 2007) (upholding related statute
providing civil penalties against providers of abortions who assist minors without
parental consent or judicial bypass of the consent requirement). Arkansas's statute also
seems likely to survive constitutional challenges because that state applies the federal
RK. C ONST. amend. 68, § 2 ("The policy of Arkansas is to
constitutional analysis. See A
protect the life of every unborn child from conception until birth, to the extent permitted
by the Federal Constitution.").
49 Planned Parenthood Ariz., Inc., 257 P.3d at 186; Hope Clinic for Women,
Ltd., 991 N.E.2d at 765-69; Planned Parenthood League of Mass., Inc., 677 N.E.2d at
106 n.10 (generally affirming parental consent statute in face of equal protection
challenge); Pro-Choice Miss., 716 So. 2d at 656-60.
50 Compare Alaska Const. Art. 1, § 1 ("This constitution is dedicated to the
principle[] . . . that all persons are equal and entitled to equal rights, opportunities, and
protection under the law . . . ."), with ARIZ. C ONST. art. 2, § 13 ("No law shall be enacted
granting to any citizen . . . privileges or immunities which, upon the same terms, shall
not equally belong to all citizens or corporations."); I LL. C ONST. art. 1, § 2 ("No person
shall be . . . denied the equal protection of the laws."); M ASS. C ONST. art. 1 ("All people
are born free and equal . . . . Equality under the law shall not be denied or abridged
because of sex, race, color, creed or national origin."). Mississippi's constitution does
not contain specific equal protection language. See generally MISS. C ONST.; Pro-Choice
Mississippi v. Fordice , 716 So. 2d 645 (Miss. 1998).
-84- 7114
----------------------- Page 85-----------------------
51
accepted limits on the right to privacy and equal protection and shows a marked
disrespect to the people's and the legislature's expression of the State's interests in both
the health and well-being of its minor citizens and the minors' parents' rights to be
informed and involved in their daughters' decision making.
IV. THE RIGHT TO PRIVACY
While I agree with that part of the concurrence's equal protection
discussion concluding that the two classes of pregnant minors are not similarly situated,
I disagree with the concurrence's conclusion that the Parental Notification Law violates
the Alaska Constitution's Privacy Clause. The plain language of the Privacy Clause does
not address this question, nor is there any suggestion in the history of the constitutional
amendment creating the right to privacy in Alaska that the amendment was intended to
overturn parents' rights to be informed that their minor daughters were intending to
52
obtain abortions.
As explained above, in Planned Parenthood II this court
determined -correctly - that the State's interests in "protecting minors fromtheir own
immaturity and aiding parents in fulfilling their parental responsibilities" are
53 It is only a misapplication of the "strict scrutiny/narrow tailoring of
compelling.
51 See Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 871-
72 (1992).
52 See Gray v. State, 525 P.2d 524, 528 (Alaska 1974) ("In 1972 Alaska
amended its constitution expressly providing that, 'The right of the people to privacy is
recognized and shall not be infringed.' There is no available recorded history of this
amendment . . . . But the right of privacy is not absolute. Where a compelling state
interest is shown, the right may be held to be subordinate to express constitutional
powers such as the authorization of the legislature to promote and protect public health
and provide for the general welfare." (emphasis added) (internal citations omitted)).
53 Planned Parenthood II, 171 P.3d 577, 582 (Alaska 2007).
-85- 7114
----------------------- Page 86-----------------------
means-to-end test" that justifies a conclusion that the Parental Notification Act violates
the Privacy Clause. This defies reason and common sense. 54
I disagree with the concurrence's statement that the Parental Notification
55 Whether a method
Law "does not achieve its goals using the least restrictive means."
is the least restrictive means of achieving the State's compelling interests is in the eye of
the beholder. What one judge or policymaker considers to be the least restrictive means
of achieving a given goal may not seem to be the least restrictive means to another judge
or policymaker. Based on their individual experiences, how they weigh the given
evidence, and their personal values, whether one policy is less restrictive than another
typically comes down to a value judgment.
The Alaska Supreme Court's persistent use of an ever-narrowing
means-to-endtest in theseparentalconsent and notification cases demonstrates that when
the test passes the limits of reason and common sense, the test loses whatever legitimacy
it (may have) once possessed. The quest to discover "lesser restrictive means" to achieve
the State's compelling interests at some point becomes self-fulfilling - there can always
be found some lesser alternative that might have been employed, and thus every
legislative enactment touching upon abortion can be held unconstitutional - whether
54 Cf. Planned Parenthood of Southeastern Pa. , 505 U.S. at 871 (" Roe v.
Wade speaks with clarity in establishing not only the woman's liberty but also the State's
'important and legitimate interest in potential life.' That portion of the decision in Roe
has been given too little acknowledgment and implementation by the Court in its
subsequent cases. Those cases decided that any regulation touching upon the abortion
decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to
further a compelling state interest. Not all of the cases decided under that formulation
can be reconciled with the holding in Roe itself that the State has legitimate interests in
the health of the woman and in protecting the potential life within her." (emphasis added)
(internal citations omitted)).
55 Concurring Opinion at 44.
-86- 7114
----------------------- Page 87-----------------------
under the rubric of right to privacy or equal protection. The court's "lesser restrictive
alternative" analysis today reminds me of Zeno's paradox of the race between the
Tortoise and Achilles (purporting to prove that the faster runner can never win the race
because, when one artificially divides the distance of the racecourse in half, then again
in half, and again and again ad infinitum, the runner can never cross the finish line
because there will always be some small incremental half-distance remaining).
In my view, once it is understood that the Parental Notification Law
contains an effective, reasonably simple judicial bypass mechanism that will permit
sufficiently mature minors to bypass parental notification, 56 and provides for bypass if
there is evidence of parental abuse,57 then the court should respect the people's and the
legislature's policy decisions and line drawing with respect to the remaining details of
the Notification Law. For example, the concurrence finds it objectionable that the
legislature drew a line at age 16 in the Parental Consent Act58 but drew the line at age 18
59 I do not find this difference to be of constitutional
in the Parental Notification Act.
magnitude. Though a minor aged 16 to 17 is brought within the Notification Act, if she
is sufficiently mature, or if there is evidence of parental abuse, then she will be able to
bypass parental notification. I find this entirely reasonable and do not think it is the
court's constitutional responsibility or prerogative to second guess this legislative policy
call.
Finally, assuming for the sake of argument that the Parental Notification
Law as written does violate the Privacy Clause, I also cannot join in the concurrence's
56 AS 18.16.030(b)(4)(A).
57
AS 18.16.030(b)(4)(B).
58
See Planned Parenthood II, 171 P.3d at 583.
59
AS 18.16.010(a)(3).
-87- 7114
----------------------- Page 88-----------------------
conclusion that the Notification Law cannot be modified to comply with the Alaska
Constitution's privacy guarantee by severing certain provisions.
Even if the legislature does not explicitly include a severability clause in
legislation, Alaska courts interpret legislation as though it includes a severability clause
60 "We have consistently severed laws rather than invalidating them
under AS 01.10.030.
when construing this general severability clause [in AS 01.10.030]."61
This court determines severability using a two-part test. "A provision will
not be deemed severable 'unless it appears both that, standing alone, legal effect can be
given to it and that the legislature intended the provision to stand, in case others included
in the act and held bad should fall.' "62 "The key question is whether the portion
remaining, once the offending portion of the statute is severed, is independent and
complete in itself so that it may be presumed that the legislature would have enacted the
valid parts without the invalid part."63
The concurrence identifies three major issues as being overbroad in
addition to those that the superior court has already enjoined that are not on appeal.
First, the concurrence states that the clear and convincing evidence standard of proof that
the Parental Notification Law requires a minor to meet before she may bypass the
60 AS 01.10.030 ("Any law heretofore or hereafter enacted by the Alaska
legislature which lacks a severability clause shall be construed as though it contained the
clause in the following language: 'If any provision of this Act, or the application thereof
to any person or circumstance is held invalid, the remainder of this Act and the
application to other persons or circumstances shall not be affected thereby.' ").
61 Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 214
(Alaska 2007).
62 Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975) (quoting
Dorchy v. Kansas, 264 U.S. 286, 290 (1924)).
63 Sonneman v. Hickel, 836 P.2d 936, 941 (Alaska 1992).
-88- 7114
----------------------- Page 89-----------------------
Notification Law is one of the strictest in the country. Second, the concurrence suggests
that the heavy burden the Notification Law places on physicians and families is
overbroad compared to similar laws in other jurisdictions. The concurrence notes that
a parent or guardian must show government identification and proof of their relationship
to the minor before receiving notice. The concurrence also argues that the Parental
Notification Law places physicians under a heavy burden, as they are required to both
verify that the phone number they use to provide notice is that of the parent or guardian
and to ask questions to verify the identity of the parent or guardian once the physician
reaches them. Finally, the concurrence suggests that the Parental Notification Law is too
expansive in scope because it applies to minors over the age of sixteen, while Planned
Parenthood II only considered a notification law applicable to minors aged sixteen and
younger.
I disagree with the concurrence's conclusions that this law "does not
demonstrate a serious effort at narrow tailoring" and that these aspects of the Parental
Notification Law are overbroad. As just one example, consider the clear and convincing
evidence standard, which requires a minor to make certain showings by clear and
convincing evidence before bypassing the Notification Law. Practically, this standard
is no more strict than similar laws in other states. When a minor seeking a judicial
bypass appears before the court alleging she is sufficiently mature to make her own
decision, she in all probability will be the only witness present. Her testimony will be
persuasive on the merits or it will not be. If it is persuasive to the court, it will be found
to be clear and convincing; if it is found unpersuasive, the testimony would not meet the
preponderance of the evidence standard.
Furthermore, the superior court has already enjoined certain portions of the
Parental Notification Law while upholding others. The superior court enjoined the civil
liability portion of the statute as well as the personal-notice-by-physician provision.
-89- 7114
----------------------- Page 90-----------------------
There is no reason to think that the clear and convincing evidence standard, the
provisions that place heavier burdens on physicians and families than similar provisions
in other states, and the age provisions of the Notification Law cannot also be severed if
they are constitutionally infirm. The provisions that the concurrence questions are no
more fundamental to the Parental Notification Law than those enjoined by the superior
court. It would be easy to remove the clear and convincing evidence standard, lessen the
burdens on families and physicians, and change the age restrictions in the Parental
Notification Law should the court find that these portions of the law are indeed
overbroad.
If these provisions are severed, the heart of this legislation remains - the
requirement that parents of a minor seeking an abortion be notified of their daughter's
choice. The other issues the concurrence raises are merely side issues.
The Alaska Legislature and the voters of this state have exerted substantial
64 I have little difficulty
efforts to pass some form of parental involvement law.
concluding that they would prefer this court save the Parental Notification Law by
severing certain non-integral provisions if at all possible, and I believe we could do so.
V. CONCLUSION
For all of these reasons, I dissent from the majority opinion's equal
protection analysis and I disagree with theconcurring opinion's right to privacy analysis.
64 See ch. 14, SLA 1997; ch. 178, SLA 2004; Ballot Measure No. 2 (Alaska
2010), http://www.elections.alaska.gov/doc/bmp/2010/2010_prim_bmp.pdf.
-90- 7114
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
