State v. Planned Parenthood of Alaska
State v. Planned Parenthood of Alaska
Opinion of the Court
OPINION
I. INTRODUCTION
From time to time, we are called upon to decide constitutional cases that touch upon the most contentious moral, ethical, and political issues of our day. In deciding such cases, we are ever mindful of the unique role we play in our democratic system of government. We are not legislators, policy makers, or pundits charged with making law or assessing the wisdom of legislative enactments. We are not philosophers, ethicists, or theologians, and "cannot aspire to answer" fundamental moral questions or resolve societal debates.
Today, we are once again called upon to decide a case that implicates the controversial issue of abortion; more specifically, we are called upon to decide whether the Parental Consent Act impermissibly infringes upon a minor's fundamental right to privacy when deciding whether to terminate a pregnancy. We decide today that the State has an undeniably compelling interest in protecting the health of minors and in fostering family involvement in a minor's decisions regarding her pregnancy. And contrary to the arguments of Planned Parenthood, we determine that the constitution permits a statutory scheme which ensures that parents are notified so that they can be engaged in their daughters' important decisions in these matters. But we ultimately conclude that the Act does not strike the proper constitutional balance between the State's compelling interests and a minor's fundamental right to privacy.
This is the second time that this case has been before us, and we earlier held that the privacy clause of the Alaska Constitution extends to minors as well as adults and that the State may restrict a minor's privacy right "only when necessary to further a compelling state interest and only if no less restrictive means exist to advance that interest."
II. FACTS AND PROCEEDINGS
In 1997 the Alaska Legislature passed the
On July 25, 1997, Planned Parenthood, Drs. Jan Whitefield and Robert Klem, and ten unidentified Jane Does filed a complaint in superior court seeking declaratory and injunctive relief. The complaint alleged that the PCA violates state constitutional rights to privacy, equal protection, and due process. On January 7, 1998, the plaintiffs filed a motion for summary judgment. The superi- or court granted that motion, concluding that the PCA violates the equal protection clause of the Alaska Constitution. The superior court also concluded that the privacy clause of the Alaska Constitution protects minors as well as adults. However, in light of its equal protection ruling, the superior court did not decide whether the PCA violates the Alaska Constitution's privacy clause.
The State appealed, and on November 16, 2001, we issued our decision in Planned Parenthood I.
On October 4, 2002, prior to the evidentia-ry hearing on remand, the plaintiffs again moved for summary judgment, this time arguing that the PCA violates the constitution by failing to exelude abortions performed in medical emergencies. On January 2, 2008, the superior court denied the motion for summary judgment.
From January 6 to January 24, 2008, the superior court held a bench trial to hear evidence regarding the constitutionality of the PCA. On October 13, 20083, the superior court issued a decision on remand holding that the PCA is unconstitutional because it fails to further compelling state interests using the least restrictive means available. On January 7, 2004, the superior court entered judgment declaring that the PCA was unconstitutional under the equal protection and
The State now appeals the superior court's judgment. The plaintiffs cross-appeal the superior court's denial of their motion seeking summary judgment based on the absence of a medical emergency exception.
III. STANDARD OF REVIEW
We review the superior court's factual determinations for clear error.
IV. DISCUSSION
Under our case law, we begin our analysis in cases such as the one at hand by measuring the weight and depth of the individual right at stake so as to determine the proper level of serutiny with which to review the challenged legislation.
A. The Individual Right at Stake Is Fundamental.
The plaintiffs assert that the PCA burdens minors' fundamental right to privacy under article I, section 22 of the Alaska Constitution.
Included within the broad scope of the Alaska Constitution's privacy clause is the fundamental right to reproductive choice. As we have stated in the past, "few things are more personal than a woman's control of her body, including the choice of whether and when to have children," and that choice is therefore necessarily protected by the right
In the case at hand, the PCA requires minors to secure either the consent of their parent or judicial authorization before they may exercise their uniquely personal reproductive freedoms. This requirement no doubt places a burden on minors' fundamental right to privacy. As such, the PCA must be subjected to strict serutiny and can only survive review if it advances a compelling state interest using the least restrictive means of achieving that interest.
B. The State's Asserted Interests Are Compelling.
The State asserts that the PCA works, on the most generalized level, to advance two interrelated interests: protecting minors from their own immaturity and aiding parents in fulfilling their parental responsibilities.
Although the Alaska Constitution extends the right to privacy in equal measure to both minors and adults, it is not blind to the unique vulnerabilities and needs that accompany minority. As we noted in Planned Parenthood I, state interests that are inapplicable to adults may sometimes be compelling with regard to minors.
Insofar as and to the same extent that the State has an interest in protecting minors, so too does it have an interest in aiding parents to fulfill their parental respon-
C. The PCA Is Not the Least Restrictive Means of Achieving the State's Compelling Interests.
Having identified and weighed the rights and interests at stake, we now turn to the task of assessing whether the PCA advances the State's compelling interests using the least restrictive means available.
We recognize that the legislature has made a serious effort to narrowly tailor the scope of the PCA by exempting seventeen-year-olds and other categories of pregnant minors from the Act's ban. It is true that the PCA is less restrictive than many other state statutes in terms of the seope of its coverage. But seope is only one of the important criteria that determine the extent to which a parental involvement law restricts minors' privacy rights. The method by which the statute involves parents is also central to determining whether the Act's provisions constitute the least restrictive means of pursuing the State's ends.
By prohibiting minors from terminating a pregnancy without the consent of their parents, the PCA bestows upon parents what has been described as a "veto power" over their minor children's abortion decisions.
Currently, fifteen states have parental notification statutes in place.
Of course, as the dissent emphasizes, the PCA does include a judicial bypass procedure through which some minors may effectively regain the right to reproductive choice by obtaining judicial authorization to forgo parental consent.
Moreover, the inclusion of this judicial bypass procedure does not reduce the restrictiveness of the PCA relative to a parental notification statute. Every state to enact a parental notification regime has opted to include either a judicial bypass procedure similar to the PCA's procedure or an even more permissive bypass procedure.
Ultimately, because the PCA shifts the right to reproductive choice to minors' parents, we must conclude that the PCA is, all else being held equal, more restrictive than a parental notification statute. The State has failed to establish that the "greater intrusive, ness of consent statutes" is in any way necessary to advance its compelling interests. In fact, in its briefing before us, the State has not focused on the PCA's benefits as flowing directly from the parental "veto power"; instead, it has consistently suggested that the PCA's benefits flow from increased parental communication and involvement in the decision-making process. According to the State, the PCA protects minors from their own immaturity by increasing "adult supervision"; it protects the physical, emotional, and psychological health of minors, "[plarticularly in the post-abortion context, [by increasing] parental participation ... for the purposes of monitoring ... risks"; it ensures that minors give informed consent to the abortion procedure by making it more likely that they will receive "counsel that a doctor cannot give, advice, adapted to her unique family situation, that covers the moral, social and religious aspects of the abortion decision"; it
These expressed legislative goals-increased parental communication, involvement, and protection-are no less likely to accompany parental notification than the parental "veto power." The dissent suggests that where a minor forgoes judicial bypass, parental consent guarantees "a conversation." But it guarantees no more than a one-way conversation and "allows parents to refuse to consent not only where their judgment is better informed and considered than that of their daughter, but also where it is colored by personal religious belief, whim, or even hostility to her best interests."
Notification statutes protect minors "by enhancing the potential for parental consultation concerning a [minor's] decision."
In sum then, the PCA does not represent the least restrictive means of achieving the State's asserted interests and therefore cannot be sustained. In reaching this decision, we go no further than the Alaska Constitution demands, and merely reaffirm that the State does not strike the proper constitutional balance between its own compelling interests and the fundamental rights of its citizens by adopting an unnecessarily restrictive statute.
v. CONCLUSION
For the reasons detailed above, we AP-FIRM the superior court's decision striking down the Parental Consent Act as a violation of the Alaska Constitution's right to privacy.
. State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, 28 P.3d 904, 906 (Alaska 2001) (noting that we do not decide "philosophical questions about abortion which we, as a court of law, cannot aspire to answer").
. State v. Planned Parenthood of Alaska, 35 P.3d 30, 41 (Alaska 2001) (Planned Parenthood I).
. Ohio v. Akron Cir. for Reproductive Health, 497 U.S. 502, 511, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (citing H.L. v. Matheson, 450 U.S. 398, 411 n. 17, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981)).
. Id.
. Ch.14, §§ 1-10, SLA 1997.
. AS 18.16.010(a)(3); AS 18.16.020.
. AS 18.16.010(c). The Act provides the doctor with an affirmative defense to prosecution and civil liability where compliance with the Act was not possible "because an immediate threat of serious risk to the life or physical health of the pregnant minor from the continuation of the pregnancy created a medical emergency necessitating the immediate performance or inducement of an abortion." AS 18.16.010(g). We note that the superior court interpreted this statutory language as "broad enough" to "contain[ ] an appropriate medical emergency exception."
. AS 18.16.020(1).
. AS 18.16.030.
. AS 18.16.030(c). Similar time limits apply to this court's consideration of a minor's appeal from a denied petition. AS 18.16.030(G).
. 35 P.3d 30 (Alaska 2001).
. Id. at 41.
. Id. at 46.
. Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003).
. Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004).
. Id. at 260 n. 14.
. Ravin v. State, 537 P.2d 494, 497 (Alaska 1975).
. Planned Parenthood I, 35 P.3d at 41.
. Cf. Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).
. Id.
. Because we conclude that the PCA violates the right to privacy under the Alaska Constitution, we need not address the plaintiffs' arguments that the Act also violates the equal protection clause or that the superior court erred in interpreting the Act to include a medical emergency exception.
. Luedtke v. Nabors Alaska Drilling Inc., 768 P.2d 1123, 1129 (Alaska 1989) (quoting Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 148 (Alaska 1977)).
. See Ravin, 537 P.2d at 514-15 (Boochever, J., concurring) (reasoning that "[slince the citizens of Alaska ... enacted an amendment to the Alaska Constitution expressly providing for a right to privacy not found in the United States Constitution, it can only be concluded that that right is broader in scope than that of the Federal Constitution").
. Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963, 968 (Alaska 1997) (internal quotations omitted).
. Planned Parenthood I, 35 P.3d at 40 (internal quotations omitted).
. Id. (noting that "[dJeciding 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").
. Id.
. The dissent appears to liken a minor's decision of whether to terminate a pregnancy to decisions about attending school field trips, joining sports teams, viewing "R"-rated movies, and lifting weights at the gym. But this analogy overlooks the fundamental autonomy at stake in an adolescent's control over her own body. And in other important ways, a minor's decision to terminate a pregnancy is wholly unlike these decisions-the immediacy of the need to address the situation, coupled with the lasting and profound consequences of the decision, make it utterly unlike the day-to-day decisions mentioned by the dissent.
. More specifically, the State asserts that the PCA aims to (1) ensure that minors make an informed decision on whether to terminate a pregnancy; (2) protect minors from their own immaturity; (3) protect minors' physical and psychological health; (4) protect minors from sexual abuse; and (5) strengthen the parent-child relationship.
. 35 P.3d at 41 (quoting Am. Acad. of Pediatrics v. Lungren, 16 Cal.4th 307, 66 Cal.Rptr.2d 210, 940 P.2d 797, 819 (1997)) (stating that a "statute's relationship to minors properly is employed in the constitutional calculus in determining whether an asserted state purpose or interest is 'compelling' ").
. Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).
. See, eg., Planned Parenthood I, 35 P.3d at 40 (noting that "we have long emphasized the State's special interest in protecting the health and welfare of children").
. Bellotti, 443 U.S. at 637, 99 S.Ct. 3035 (quoting Pierce v. Soc'y of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)).
. Id. at 638, 99 S.Ct. 3035.
. Id.
. H.L. v. Matheson, 450 U.S. 398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981).
. Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
. Bellotti, 443 U.S. at 639, 99 S.Ct. 3035 (quoting Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)).
. Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511, 110 S.Ct. 2972, 111 LEd.2d . 405 (1990) (citing Matheson, 450 U.S. at 411 n. 17, 101 S.Ct. 1164).
. Coto Rev. Stat Amn. § 12-37.5-101 to 107; Dzr.Cops Anx. tit. 24, §§ 1780-1789(B); Fra. Star. § 390.01114; Ga.Code Ann. § 15-11-110 to 114; ILt Comp. Stat. 70/1-99; Iowa Cope § 1351.3; Kan. Stat. Ann. §§ 65-6701 to 6709; M»p.Cope Ann, § 20-103; MinnSm: § 144.343; Moxt.Cope §§ 50-20-201 to 215; Nes Rev. Stat. §§ 71-6901 to 6908; Nev Rev.Stat. 442.255; NJ Smat. Ann § 9:17A-1.1 to 1.12; S.D. Copirien Laws § 34-23A-7; W. Va Copg §§ 16-2F-1 to 9.
. See, eg., Ga.Coo® Ann. § 15-11-112(a) (prohibiting physicians from performing an abortion on a minor unless the physicians give either "24 hours' actual notice, in person or by telephone,
. AS 18.16.030(e)-(f) provides that a minor may bypass the PCA's parental consent requirement if a court determines by clear and convincing evidence that she is sufficiently mature and well enough informed to decide whether to have an abortion or that parental consent would not be in her best interests.
. See, eg., Mo.Copr Ann, Hearre-Grn § 20-103(c)(1) (providing that a physician may perform an abortion without notice to a parent or guardian if, "in the professional judgment of the physician{,] ... [nlotification would not be in the best interest of the minor"); W. Va.Cops § 16-2F-3(c) (providing that parental notification may be "waived by a physician, other than the physician who is to perform the abortion, if such other physician finds that the minor is mature enough to make the abortion decision independently or that notification would not be in the minor's best interest").
. State v. Koome, 84 Wash.2d 901, 530 P.2d 260, 265 (1975) (holding that parental consent statute violates state constitutional right to privacy); see also Am. Acad. of Pediatrics v. Lundgren, 16 Cal.4th 307, 66 Cal.Rptr.2d 210, 940 P.2d 797, $16 (1997) (holding that parental consent law "intrude[s] upon" a pregnant minor's "protected privacy interest under the California Constitution").
. Matheson, 450 U.S. at 412, 101 S.Ct. 1164; see also Planned Parenthood Ass'n of the Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1472-74 (11th Cir. 1991) (holding that Georgia's notification statute furthered the state's interest in "protecting immature minors" and promoting parental input).
Dissenting Opinion
In 1997, faced with competing interests of the highest constitutional level-an underage pregnant girl's constitutional right to privacy in deciding whether to terminate her pregnancy, her parents' constitutional right (and duty) to protect her best interests, and the state's compelling interests in protecting children against their own immaturity-the Alaska Legislature carefully crafted the Alaska Parental Consent Act in an effort to recognize and protect all of these interests. That law is fully consistent with United States Supreme Court precedent, yet today's opinion strikes it down. Because this court's rejection of the legislature'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.
I. The Constitutional Framework
Before looking at the Parental Consent Act in detail to determine how it balances the strong competing interests involved, it is helpful to consider the analytical framework used by courts in deciding constitutional challenges of the kind involved in this case. In a series of cases, we have established a three-step process. We have first looked to the nature and extent of the individual right that is claimed. If we determine that the right is fundamental, we then examine whether the state's interest in burdening the
The individual right claimed in this case is the fundamental right of an unmarried pregnant minor to privacy in her decision whether to terminate her pregnancy. The compelling interest claimed by the state is multifaceted, including protecting minors from their own immaturity (by recognizing the parents' right (and duty) to guide their children's upbringing) and protecting the health of minors. If both the individual right is fundamental and the state's interest is compelling, the court must decide whether the law is tailored closely enough to achieve its intended purpose.
II. The Alaska Parental Consent Act
The hallmark of the Alaska Parental Consent Act (PCA or the Act) is the remarkable length to which the legislature went in order to accommodate all of the various, and at times competing, interests that are involved when an unmarried teenage (or pre-teen) girl is faced with pregnancy.
The legislature engrafted multiple exceptions to the scope of the Act in an effort to create a law that was specifically targeted, to the greatest extent possible, at the population of underage pregnant girls who would be in greatest need of adult guidance in reaching the decision whether to terminate pregnancy. First, the legislature exempted from the scope of the Act all seventeen-year-old girls.
Second, the legislature exempted from the seope of the Act four additional classes of minors. Each exemption shows that the legislature was attempting to shape a law that would be applied only to those pregnant girls who would most be in need of adult help. Accordingly, the law does not apply to married minors,
Third, in an apparent effort to make certain that the Act would not have coverage over any other underage pregnant girls who were capable of making the decision on their own, the legislature included a catch-all exception to the Act: any who had "otherwise become independent from the care and control of [her] parent, guardian, or eustodi-an."
The legislature next created a judicial bypass procedure to cover those cases of underage pregnancy not covered by these exceptions. The judicial bypass procedure is designed to be confidential, speedy, cost-free to the child, and easy to use. The court system is directed to prepare forms for use by the child
The proceedings surrounding judicial bypass are strictly confidential: Courts are instructed to conduct all proceedings so as to preserve the anonymity of the child.
In deference to the need for speedy resolution of the consent question in cases where an abortion is sought, the Act provides for extremely short timelines. The court is directed to set the hearing "at the earliest possible time" and in any event not more than five business days after the complaint is filed."
In sum, the Alaska Parental Consent Act appears to be the product of a concerted effort to make certain that those pregnant girls who are sufficiently mature to make the decision to obtain an abortion on their own are allowed to do so while those who are not sufficiently mature either obtain a parent's consent or, in the case of parental abuse, a judicial determination that the procedure is in their best interest.
III Analysis
Application of the three-part test for constitutionality (set out above in the discussion of the constitutional framework) has tended in this case to focus on the third part of the test: whether the means chosen by the legislature are sufficiently narrowly tailored to the goals of the legislation. I agree that this inquiry is the most difficult in this case. But I also believe that failure to focus carefully on the nature of the interests involved can lead to a failure to assess correctly the sue-cess of the legislature's effort to tailor the legislation to meet its goals. For this reason, I turn now to each step of the test for constitutionality.
A. The Individual Right-To Exercise Autonomy in the Control of One's Body, and in the Choice to Bear a Child-Is Fundamental.
The individual right involved in this case is the right to privacy. While that right is often associated with the maintenance of secrecy or confidentiality with regard to one's affairs (and that is present to some extent in this case), the gravamen of the individual's concerns in this case is the right to exercise autonomy in the control of one's body. In Valley Hospital Association v. Mat-Su Coalition for Choice,
But it is important to remember that Valley Hospital concerned the rights of adult women. Today's opinion relies on the court's statement in its earlier decision in this case that "minors and adults start from the same constitutional footing,"
Of course this does not mean that evidence of the "peculiar vulnerability of children [and] their inability to make critical decisions in an informed, mature manner" has no place in determining whether the parental consent or judicial authorization act is constitutional. To the contrary, we have long emphasized the state's special*589 interest in protecting the health and welfare of children.[35]
The opinion then explained how this "peculiar vulnerability" of children was to be taken into account in the constitutional analysis: "[A) statute's relationship to minors properly is employed in the constitutional caleulus in determining whether an asserted state purpose or interest is 'compelling.'"
B. The State's Interests-To Protect Children from Their Own Immaturity and To Protect Parents' Rights and Duties To Raise Their Children-Are Compelling.
Despite the promise of Planned Parenthood I to take into account the fact that children are involved during step two of the constitutional analysis-the step that asks "whether an asserted state purpose or interest is 'compelling' "-the court today quickly passes over this step.
The court's cursory discussion of the nature of the state's compelling interests at stake in this case is inconsistent with our case law on the right to privacy; moreover, it deprives the court's later means-to-ends analysis of any context. Let us consider each of these failings in turn.
In Sampson v. State,
This court has often emphasized the importance of personal autonomy under our constitution. Yet we have also recognized that the rights to privacy and liberty are neither absolute nor comprehensive-that their limits depend on a balance of interests. The nature of the balance varies with the importance of the rights actually infringed.[40]
Because the nature of the balance varies with the importance of the rights involved and because in the context of the case before us now-pregnant children who are considering abortion-there are important rights on both sides of the equation, including the rights of parents to guide their children, it is particularly important that the court look closely at the nature of the state's interests in the legislation.
The court's failure to look closely at the nature of the state's and parents' interests leaves its constitutional "balance" one-sided. Because the court has not fully and accurately set out the nature of society's compelling interest in the protection of children and of parents' right and duty to raise their children, it is impossible to accurately gauge how cloge the law comes to meeting its objectives. As a detailed look at the state's interest shows, it is multifaceted and is served in many ways by Alaska's Parental Consent Law. It consists of at least two
[MJinors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life.
... Adolescents "are more vulnerable, more impulsive, and less self-disciplined than adults," and are without the same "capacity to control their conduct and to think in long-range terms."[46]
State courts too have long recognized that children require protection from their own immaturity. Pennsylvania, for example, has noted that the state's strong interest in protecting younger minors from the sexual aggressiveness of minors over sixteen is based on the immaturity and poor judgment of younger minors.
As Justice Matthews set out in his dissent in our earlier consideration of this case, Planned Parenthood I:
Children's freedoms have long been constrained in ways that would not be permissible for adults. Constraints on children are imposed in order to protect them, and sometimes society as a whole, from the consequences of their immaturity. Thus children may not exercise the fundamental right to vote. They generally may not make contracts or smoke cigarettes or drink alcoholic beverages or consent to*591 sexual intercourse. Without a parent's consent they may not become licensed drivers or get married or obtain general medical or dental treatment. Alaska's parental consent/judicial bypass act is in the tradition of these constraints on children's freedoms.... The act is designed to ensure that each child makes a decision that is best for her.[49]
The notion that parental consent laws further the state interest of protecting minors from their immaturity is neither novel nor surprising. As a matter of law society demands much of parents; it is expected that they will assist their children in making proper decisions until those children reach adulthood. Parents of teenagers and younger children are familiar with the ubiquitous "permission slips" which must be signed before their children may go on a school field trip; and parental permission is routinely required before minors may join a sports team, before an under-seventeen minor may view an "R"-rated movie, and before a minor may even lift weights at the local gym.
For an immature pregnant minor, parental involvement is at least as important in the difficult decision concerning abortion as it is in the "permission slip" activities mentioned in the last paragraph. In Ohio v. Akron Center for Reproductive Health (Akron II ),
The PCA seeks to protect a second compelling interest in abortion cases involving children. In addition to society's interest in protecting children from their own immaturity, we have long held that parents have a fundamental right in the raising of their children. In 8.0. v. W.S.,
In sum, the norm in American, and Alaskan, life and law is that parents are a child's first and most important resource for assistance in decision-making. For that reason, the state's interest in protecting children from the consequences of their own immaturity, and in so doing protecting the health of its children, and its interest in supporting parents' right and duty to guide the upbringing of their children is particularly compelling.
C. The Fit Between the State's Interests and the Means Adopted To Reach Them Are Sufficiently Close To Pass Constitutional Muster.
We now reach the third part of the constitutional analysis. In order to survive constitutional serutiny, the PCA must be narrowly tailored in meeting the state's interests. Because the child's privacy interests are fundamental, there must be no less restrictive alternative available to the state.
1. The PCA is narrowly tailored.
Before embarking on this analysis, however, it is important to address the majority's assertion that "the PCA bestows upon parents what has been described as a 'veto power' over their minor children's abortion decisions."
The Parental Consent Act is very narrowly drawn to achieve its compelling state interests. To begin, as noted above, the PCA excludes all seventeen-year-olds.
The use of age as a proxy for maturity is fundamental to our legal system and social culture. As the Supreme Court recently noted in Roper v. Simmons,
[Als any parent knows and as the scientific and sociological studies ... tend to confirm, a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.... Even the normal 16-year-old customarily lacks the maturity of an adult. ... [Aldolescents are overrepresented statistically in virtually every category of reckless behavior. In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.[70]
Age distinctions are not made with an expectation that they perfectly track maturity.
When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the Legislature must be accepted unless we can say that it is very wide of any reasonable mark.[72]
The Alaska Court of Appeals similarly noted in Allam v. State
Significantly, this narrowing of the PCA based on age also makes it less restrictive than every other parental consent law but one
As noted, the legislature further tailored the PCA by excluding four additional categories of minors: legally emancipated minors,
The final narrowing of the PCA is derived from the judicial bypass procedure. Although neither the superior court nor this court's majority analyze the bypass procedure under the least restrictive means test, the judicial bypass significantly narrows the effect of the law because it provides a way for mature minors who are not otherwise statutorily exempted to obtain an abortion without parental consent. As Justice Matthews recognized in Planned Parenthood I, the judicial bypass procedure satisfies all the criteria established by the United States Supreme Court in Bellotti v. Baird.
constructive order must issue authorizing the minor to undergo the abortion.
2. The PCA is the least restrictive means to achieve the state's compelling interests.
The PCA not only furthers a compelling state interest in a manner narrowly tailored and in compliance with the federal constitution, but it is also the least restrictive means of doing so. The least restrictive means test is properly a difficult burden for the state to meet, as it protects fundamental rights against unnecessary state intrusion. However, it is not an impossible standard for the state to meet. A mere showing that the state might have taken less restrictive action, say, by enacting a notification statute instead, is not sufficient to defeat legislation absent a determination that the less restrictive action would effectively achieve the state's compelling interests. Indeed, the least restrictive action that a state may take in every case is not to legislate at all.
In Treacy v. Municipality of Anchorage,
But every one of these parental notification statutes that lacks exceptions for seventeen-year-olds and other mature minors is more restrictive than Alaska's PCA.
The majority enthusiastically adopts the notion that a notice statute is less restrictive than the PCA because it does not give parents a "veto power." But as shown above, the PCA does not create a veto power because it includes a judicial bypass provision. Moreover, the United States Supreme Court has upheld a parental consent statute containing a judicial bypass procedure but fewer statutory exceptions than those included in Alaska's PCA.
Indeed, notification laws may present the worst case scenario by posing all the risks of privacy infringements of a consent/bypass statute with fewer of its mitigating effects. What could be further from the productive and supportive conversation that a consent statute aims to produce than the cold reality of parents receiving (perhaps after the abortion) a note in the mail informing them of their daughter's pregnancy and decision to abort? It is certainly reasonable for a legis
3. The legislature could reasonably conclude that "parental notification" statutes are not effective in protecting a pregnant girl against her own immaturity or in protecting her parents' right and duty to aid in her upbringing.
Despite today's Opinion's rosy assertion that "all [notification statutes] prohibit minors from terminating a pregnancy until their parents have been notified and afforded an appropriate period of time to actively involve themselves in their minor children's decision-making processes,"
Thus, Delaware, identified by the majority opinion as a "notification" state, allows notification of a licensed mental health professional to substitute for parental notification.
The court asserts that the state's compelling interests (it refers to them only as "legislative goals") "are no less likely to accompany parental notification than parental 'veto power'"
We should heed our admonition in Treacy: In analyzing the argument that a legislative solution is not the "least restrictive" one, courts must take care to require the challenger to demonstrate that the supposedly less restrictive alternative is actually effective in protecting the state's (and parents') compelling interests. The court today fails to show that a notification statute "will achieve the State's compelling interests." This is because, as we have seen, notification laws are ineffective in so many ways in protecting children from their immaturity and in protecting parents' rights and obligations to guide their children's upbringing. And today's opinion declines even to say whether a parental notification approach would be constitutional. ©
IV. Conclusion
The Alaska Legislature carefully balanced the constitutional right of an underage pregnant girl to privacy and the state's compelling interests in protecting children against their own immaturity and protecting parents' constitutional right (and duty) to guide their children to maturity. Because the PCA is the least restrictive alternative which will effectively advance the state's compelling interests while protecting the child's constitutional right, we should hold that the superior court erred in invalidating it. I respectfully dissent.
. In drafting the Alaska Parental Consent Act, the legislature appears to have tracked carefully the requirements for parental consent and parental notification laws set out by the United States Supreme Court in City of Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981); Planned Parenthood Ass'n. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), partially overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S.Ct 2791, 120 L.Ed.2d 674 (1992).
. AS 18.16.020(1).
. AS 18.16.020(2). In the event that the court fails to act, such failure will be considered to be judicial authorization for the abortion. AS 18.16.020(3).
. AS 18.16.020.
. Stanley K. Henshaw & Kathryn Kost, Parental Involvement in Minors' Abortion Decisions, 24 Family Planning Perspectives, Sept/Oct 1992 at Table 1. See also Letier from Susan K. Steeg, General Counsel, Texas Department of Health (May 26, 2004) (stating that of the 3654 minor women who obtained an abortion in Texas in 2002, 1694 or forty-six percent of them were age seventeen); Aida Torres, Jacqueline Darroch Forrest & Susan Eisman, Telling Parents: Clinic Policies and Adolescent's Use of Family Planning and Abortion Services, 12 Family Planning Perspectives, Nov/Dec 1980, 284, 287 (forty-four percent of the 1170 unmarried minor abortion patients surveyed were seventeen years old).
. S.C.Cope Ann. § 44-41-10(m) (2006).
. Der.Cope Ann. tit. 24 § 1782(6) (2007).
. AS 18.16.020.
. Id. and AS 18.16.090(2)(C).
. AS 18.16.020,.090(2)(A).
. AS 18.16.020,.090(2)(B).
. AS 18.16.020,.090(2)(D).
. AS
. Id.
. AS 18.16.030(n).
. AS 18.16.030(d). The only exception is that if the child already has counsel. Id.
. AS 18.16.030(n)(3).
. AS 18.16.030(n)(1).
. AS 18.16.030(a)(2).
. AS 18.16.030(K).
. AS 18.16.030(b).
. AS 18.16.030(K).
. AS 18.16.030(c).
. Id.
. Id.
. AS 18.16.030(). 220. See also Alaska R.App. P.
. AS 18.16.030(e).
. AS 18.16.030({).
. AS 18.16.030(e), (F).
. 948 P.2d 963 (Alaska 1997).
. Id. at 968.
. Id. at 969.
. Opinion at 581; State v. Planned Parenthood of Alaska, 35 P.3d 30, 41 (Alaska 2001) (Planned Parenthood I).
. 35 P.3d at 40 (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976)).
35. 35 P.3d at 40 (footnote omitted).
. Id. at 41 (quoting American Acad. of Pediatrics v. Lungren, 16 Cal 4th 307, 66 Cal.Rptr.2d 210, 940 P.2d 797, 819 (1997).
. 450 U.S. 398, 101 S.Ct. 1164, 67 LEd.2d 388 (1981).
. Id. at 441 n. 32, 101 S.Ct. 1164.
. 31 P.3d 88 (Alaska 2001).
40. 31 P.3d at 91 (footnotes omitted).
. The superior court actually identified six compelling state interests in its opinion. They were as follows: (1) "State has a compelling interest in protecting minors from their own fmmatu-rity." (2) "State has a compelling interest in protecting the physical, emotional, and psychological health of minors." (3) "State has a compelling interest in ensuring that doctors obtain informed consent from their minor patients contemplating pregnancy related decisions." (4) "State has a compelling interest in protecting minors from sexual abuse...." (5) "The court finds that the state does have many interests, some of them compelling, in fostering and protecting the family structure...." (6) "This court
. 497 U.S. 417, 110 S.Ct. 2926, 111 LEBd.2d 344 (1990).
. Id. at 444-45, 110 S.Ct. 2926. See also Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 490-91, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) ("A State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial."); Parham v. J. R., 442 U.S. 584, 603, 99 S.CL 2493, 61 L.Ed.2d 101 (1979) ('Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments."); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 102-04, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (Stevens, J., concurring and dissenting) (minors may not make enforceable bargains, work, or travel where they please, attend exhibitions of constitutionally-protected adult motion pictures, marry, etc.); Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) (holding that fourteen-year-old's criminal confession made without advice of adult violated due process because of child's inherent lack of maturity).
. 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), overruled by Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 LEd.2d 1 (2005).
46. Id. at 395, 109 S.Ct. 2969 (Brennan, J., dissenting) (quoting Twentierg Century Fump Task Force on Sentencine Porrcy Towarp Younes Orrenp-ERs, Conrrontinc Yours CrmeE 7 (1978)).
. Commonwealth v. Albert, 563 Pa. 133, 758 A.2d 1149, 1154 (2000).
. J.A.S. v. State, 705 So.2d 1381, 1386 (Fla. 1998). See also In re E.G., 133 Ill.2d 98, 139 Ill.Dec. 810, 549 N.E.2d 322, 327 (1989) (holding that court should distinguish mature minors from immature minors for purpose of determining right to refuse medical treatment because "the State has a parens patriae power to protect those incompetent to protect themselves").
49. 35 P.3d at 46-47.
. Today's Opinion mistakenly asserts that the dissent "appears to liken a minor's decision of whether to terminate a pregnancy to decisions about attending school field trips, joining sports teams, viewing "R"-rated movies, and lifting weights at the gym" and argues that the decision to terminate a pregnancy is wholly unlike these decisions. (Opinion 582, n. 28) The Opinion misses the point entirely: Of course permission-slip decisions do not have the "lasting and profound consequences" (Opinion 582, n. 28) of the abortion decision, and yet the law imposes the necessity of parental consent upon them. If society deems parental consent critical in such lesser matters, should not the parents play a similar role when the consequence to the child are so vastly greater? And in arguing that "fundamental autonomy [is] at stake in an adolescent's control over her own body," (Opinion 582, n. 28) the Opinion ignores that parental consent is required for virtually every other medical procedure involving a child. See Hodgson v. Minnesota, 497 U.S. 417, 423, 110 S.Ct 2926, 111 L.Ed.2d 344 (1990) (recognizing "the common-law requirement of parental consent for any medical procedure performed on minors.").
. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944).
. 497 U.S. 502, 110 S.Ct. 2972, 111 LEd.2d 405 (1990).
. Id.
. Planned Parenthood v. Danforth, 428 U.S. 52, 104, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (Stevens, J., concurring).
. 643 P.2d 997 (Alaska 1982).
. Id. at 1006.
. 540 P.2d 1051 (Alaska 1975).
. Id. at 1055 (Dimond, J., concurring).
. Planned Parenthood I, 35 P.3d 30, 41 (Alaska 2001).
. Opinion at 583, quoting Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990).
. See, eg., Opinion at 579 ("the Act effectively shifts that minor's fundamental right to choose if and when to have a child from the minor to the parents"); 4 ("veto power"); 12 (same); 13 (same); 15 ("the PCA shifts the right to reproductive choice to minors' parents"); 16 ("veto power").
. See AS 18.16.030. The judge in a bypass case must decide whether the child is "sufficiently mature-and well enough informed to decide intelligently whether to have an abortion." If she is, the court issues an order authorizing her to consent to the procedure "without the consent of a parent, guardian, or custodian." AS 18.16.030(e). (If she is not, the court dismisses the case. Id. Presumably, a child found to be insufficiently mature to make such a decision should not make it.)
. 497 U.S. at 510-11, 110 S.Ct. 2972 (emphasis added). Moreover, although the reference in today's Opinion to the use of "veto power" in the United States Supreme Court's opinions in HL. v. Matheson and Ohio v. Akron Center is technically accurate (in the sense that the term appears in both opinions), it is also misleading. Ohio v. Akron Center, when it referred to Matheson, simply established that notice statutes are not equivalent to consent statutes for the purpose of constitutional analysis. Neither Matheson nor Akron Center directly addressed what types of bypass procedures are capable of curing the constitutionally fatal "veto power"" found in consent statutes without bypass procedures. Instead, both Matheson and Akron Center dealt solely with the constitutionality of parental notification statutes.
. AS 18.16.020.
. See supra note 5.
. 543 U.S. 551, 125 S.Ct. 1183, 161 LEd.2d 1 (2005).
70. Id. at 569, 125 S.Ct. 1183 (internal quotations and citations omitted).
. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 104-05, 96 S.Ct. 2831, 49 LEd.2d 788 (1976) (Stevens, J., concurring and dissenting) ("In all ... situations [where state legislation seeks to protect minors from the consequences of decisions they are not prepared to make] chronological age has been the basis for imposition of a restraint on the minor's freedom of choice even though it is perfectly obvious that such a yardstick is imprecise and perhaps even unjust in particular cases.").
72. 277 U.S. 32, 41, 48 S.Ct. 423, 72 L.Ed. 770 (1928) (Holmes, J., dissenting).
. 830 P.2d 435 (Alaska App. 1992).
. Id. at 438.
. See $.C.Coor Amn. § 44-41-10(m) (also defining minors as "under the age of seventeen").
. Delaware appears to be the only exception among "notification" states. Drr.Cope Aww. tit. 24, § 1782(6) (requiring notification for those under age sixteen). But of. Kan Star Ann. § 65-6701(f) (2006); M».Cope Ann., Hearra-Gen. § 20-103 (2005); § 144.343 (2005); Mont. Cope Ann. § 50-20-203(6) (2005); Nes Rev.Srar. § 71-6901(5) (2006); Nev.Rev.Smm § 442.255 (2005); S.D. Laws § 34-23A-7 (2006); Tex. Fam.Cope Aww. § 33.002 (2007); W. Va.Cope § (2007).
. AS 18.16.020 (applying the statute only to minors known to be "unmarried ... and un-emancipated"). The majority opinion notes that a minor must prove by clear and convincing evidence that she is sufficiently mature in order to obtain a judicial bypass, while the standard of proof for legal emancipation is a preponderance of the evidence. Because any minor who has established legal emancipation is already exempted from the scope of the PCA, however, the PCA is not over-broad on this account. Furthermore, it is logical that a minor who cannot prove that she is globally ready to be free from parental supervision may nonetheless be mature on the specific issue of the decision to terminate her pregnancy. This discrepancy in what must be proven negates an easy comparison regarding the burden of proof that a minor must satisfy.
. Id.
. AS 18.16.090(2)(B). By its express terms the PCA provides a much broader interpretation of the term "unemancipated" than Alaska's formal emancipation statute, AS 09.55.590. The term is defined in AS 18.16.090(2):
"unemancipated" means that a woman who is unmarried and under 17 years of age has not done any of the following:
*595 (A) entered the armed services of the United States;
(B) become employed and self-subsisting;
(C) been emancipated under AS 09.55.590; or
(D) otherwise become independent from the care and control of the woman's parent, guardian, or custodian.
. AS 18.16.090(2)(A).
. Mp.Cope Ann, Heartm-GEen. § 20-103 (no exception for emancipated minors); Kan. Stat. Ann. § 65-6705 (2006) (no exception for unemanci-pated minors living independently); Mmm.Stat. § 144.343 (same); Mont.Cope Anx. §§ 50-20-201 to 215 (same); Nzs.Rev Stat. §§ 71-6901 to 6908 (same); S.D. CoptriEp Laws § 34-23A-7 (same); TEx. Fam.Copg Ann. §§ 33.001 to 011 (same); W. Va.Cope §§ 16-2F-1 to 9 (same).
. 35 P.3d at 51-52 (Matthews, C.J., dissenting) (citing to Bellotti, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979)) (noting that (1) proceedings must except minor from any parental consent requirements if minor can establish she is mature enough to make abortion decision, or that requiring consent is not in her best interests and (2) proceedings must be completed with anonymity and sufficient expedition).
. AS 18.16. 0300).
. 91 P.3d 252 (Alaska 2004).
. Id. at 267.
. CoroRevStatr. Amn. §§ 12-37.5-101 to 107 (West 2007); Der.Cope Amn. tit. 24, §§ 1780 to 1789B; Fra. Stat. § 390.01114 (West 2007); Ga. Cope Ann. §§ 15-11-110 to 118 (West 2007); 750 Ir. Comp. Stat 70/1 to 99 (West 2007); Iowa Cope Ann. § 1351.3 (West 2007); Kan. Stat. Anw. §§ 65-6701 to 6709; Mv.Cope Ann., § 20-103; Mmmw.Star § 144.343; Mowt.Cope Ann. §§ 50-20-201 to 215; Nes.Rev.Star §§ 71-6901 to 6908; Nrev.Rev.Star. 442.255; N.J. Stat. Ann. § 9:17A-1.1 to 1.12 (West 2007); S.D. Coptrep Laws § 34-23A-7; W. Va.Cope §§ 16-2F-1 to 9 (2006). Oklahoma, Texas, and Utah, not counted here, require both notification and consent. Oxta. Stat. Ann. tit. 63, § 1-740.2 (West 2006); TEx. Fam.Cope Aww. §§ 33.001 to .O11; Tex. Occ. Cope Ann. § 164.052(a)(19); Urax Cope Axx. §§ 76-7-304, 76-7-304.5 (West 2006).
. AmaCopne §§ 26-21-1 to 8 (1992); ArizRev Stat. Amn. § 36-2152 (2006); Arx.Conr Axx. §§ 20-16-801 to 810 (West 2006); Car. Hearth & Sarery Cope § 123450 (West 2007); Inago Cope Ann. § 18-609A (West 2007); § 16-34-2-4 (West 2006); Ky.Rev.Srar. Amn. §§ 311.720, 311.732 (West 2006); La Smarr Aww. § 40:1299.35.5 (2006); Mz.RevSrar. Ann. tit. 22, § 1597-A (2006); Mass. Grew. Laws ch. 112, § 128 (2004); Mic. Comp. Laws Amn. §§ 722.901 to 722.909 (West 2006); Miss Copr Aww. § 41-41-53 (West 2006); Mo. Amn. Star § 188.028 (West 2006); N.C. Gen.Srar. Ann. §§ 90-21.6 to 90.21.10 (West 2006); N.D. § 14-02.1 to 03.1 (2005); RevCon Amn § 2919.121 (West 2006); Oxa. Star Ann. tit. 63, § 1-740.2 (West 2006); 18 Pa. Cons Stat. Anw. § 3206 (West 2006); RI. Gen. Laws § 23-4.7-6 (2006); S.C. Cope Anx. § 44-41-31 (2006); Texw.Cope Ann. §§ 37-10-301 to 308 (2005); Tex. Ann. §§ 33.001 to 011; Tex. Occ.Copz Aww. § 164.052(a)(19); Urax Cope Ann. §§ 76-7-304, 76-7-304.5; Va.Coong Anx. § 16.1-241(V) (West 2006); Wis. Stat Aww. § 48.375 (West 2005); Wyo. Stat. Ann. § 35-6-118 (2006).
. Three states, Oklahoma, Texas, and Utah, have adopted both consent and notification statutes.
. See Treacy, 91 P.3d at 267.
. See Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 493-94, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983).
. 35 P.3d at 51 (Matthews, J., dissenting). It should be noted that since those words were written, Chief Justice John Roberts and Justice Samuel Alito have replaced Chief Justice William Rehnquist and Justice Sandra Day O'Connor.
. 497 U.S. 502, 510-11, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990).
. Opinion at 583.
. Ann. tit. 24 § 1783(a).
. Mp.Cope Axx, Heatm-Gen. § 20-103(c)(1)(@), (ii).
. W. Va Cope § 16-2F-3(c).
. The waiting periods range between twenty-four hours (Delaware, West Virginia (twenty-{our hours after actual notice), Georgia, Kansas, and Utah) and forty-eight hours (West Virginia (forty-eight hours after mailing notice), Iowa, Colorado, Ilinois, Minnesota, Nebraska, South Dakota, Texas, Montana).
. Mp.Cope. Ann., Hearta-Gen. § 20-103.
. W, Va Cope. § 16-2F-3(a).
. Id.
. Opinion at 585.
. Id. at 584.
. See Ga.CopE Anx. § 15-11-112(a) (written notice deemed delivered forty-eight hours after mailing; abortion may be performed twenty-fours hours after).
. See, eg., Der.Cope til. 24 § 1783; Ga. Cope Aww. § 15-11-112(a)(1)(B); Urax Cong Ann. § 76-7-304(3); W. Va.Cons Ann. § 16-25-3(a) (all requiring a waiting period of only twenty-four hours).
. Opinion at 585.
Reference
- Full Case Name
- STATE of Alaska, Appellant/Cross-Appellee, v. PLANNED PARENTHOOD OF ALASKA and Jan Whitefield, M.D., Appellees/Cross-Appellants
- Cited By
- 35 cases
- Status
- Published