State v. Planned Parenthood of Alaska

171 P.3d 577, 2007 Alas. LEXIS 141, 2007 WL 3227577

• Court: Alaska Supreme Court
• Decided: November 2, 2007
• Docket: S-11365, S-11386
• Status: Published

Opinions

OPINION

FABE, Justice.

I. INTRODUCTION

From time to time, we are called upon to decide constitutional cases that touch upon the most contentious moral, ethical, and political issues of our day. In deciding such cases, we are ever mindful of the unique role we play in our democratic system of government. We are not legislators, policy makers, or pundits charged with making law or assessing the wisdom of legislative enactments. We are not philosophers, ethicists, or theologians, and "cannot aspire to answer" fundamental moral questions or resolve societal debates.¹ We are focused only on upholding the constitution and laws of the State of Alaska.

Today, we are once again called upon to decide a case that implicates the controversial issue of abortion; more specifically, we are called upon to decide whether the Parental Consent Act impermissibly infringes upon a 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."² The State's asserted interest in protecting a minor from her own immaturity by encouraging parental involvement in her decision-making process is undoubtedly compelling. But by prohibiting a minor from obtaining an abortion without parental consent, the Act effectively shifts that minor's fundamental right to choose if and when to have a child from the minor to her parents. There exists a less burdensome and widely used means of actively involving parents in their minor children's abortion decisions: parental notifications.³ The United States Supreme Court has recognized, in a different context, that "notice statutes are not equivalent to consent statutes because they do not give anyone a veto power over a minor's abortion decision." ⁴ And many states currently employ this less restrictive approach. Because the State has failed to establish that the greater intrusiveness of a statutory scheme that requires parental consent, rather than parental notification, is necessary to achieve its compelling interests, the Parental Consent Act does not represent the least restrictive means of achieving the State's interests and therefore cannot be sustained.

II. FACTS AND PROCEEDINGS

In 1997 the Alaska Legislature passed the

Alaska Parental Consent Act (PCA).⁵ The PCA prohibits doctors from performing an abortion on an "unmarried, unemancipated woman under 17 years of age" without parental consent or judicial authorization.⁶ The Act subjects doctors who knowingly perform abortions on minors without the required consent or judicial authorization to criminal prosecution.⁷ The parental consent requirement can be met through written consent from a parent, guardian, or custodian of the minor.⁸ The Act also includes a judicial bypass procedure whereby a minor may file a complaint in superior court and obtain judicial authorization to terminate a pregnancy if she can establish by clear and convincing evidence either that she is "sufficiently mature and well enough informed to decide intelligently whether to have an abortion" or that being required to obtain parental consent would not be in her best interests.⁹ If the court fails to hold a hearing within five business days after the complaint is filed, the court's inaction is considered a constructive order authorizing the minor to consent to terminate the pregnancy.¹⁰

On July 25, 1997, Planned Parenthood, Drs. Jan Whitefield and Robert Klem, and ten unidentified Jane Does filed a complaint in superior court seeking declaratory and injunctive relief. The complaint alleged that the PCA violates state constitutional rights to privacy, equal protection, and due process. On January 7, 1998, the plaintiffs filed a motion for summary judgment. The 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.¹¹ In that case, we concluded that the privacy clause of the Alaska Constitution extends to minors as well as adults and that the State may constrain a pregnant 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."¹² We also reversed the grant of summary judgment and remanded the case for an evidentiary hearing to determine whether the PCA actually furthers compelling state interests using the least restrictive means available.¹³

On October 4, 2002, prior to the 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 privacy clauses of the Alaska Constitution and enjoining the State from enforcing the Act.

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.¹⁴ We review constitutional questions de novo, adopting the most persuasive rule of law in light of precedent, reason, and policy.¹⁵ We uphold a statute against a facial constitutional challenge if "despite any occasional problems it might create in its application to specific cases, [the statute] has a plainly legitimate sweep." ¹⁶

IV. DISCUSSION

Under our case law, we begin our analysis in cases such as the one at hand by measuring the weight and depth of the individual right at stake so as to determine the proper level of serutiny with which to review the challenged legislation.¹⁷ If this individual right proves to be fundamental, we must then review the challenged legislation strictly, allowing the law to survive only if the State can establish that it advances a compelling state interest using the least restrictive means available.¹⁸ In cases involving the right to privacy, the precise degree to which the challenged legislation must actually further a compelling state interest and represent the least restrictive alternative is determined, at least in part, by the relative weight of the competing rights and interests.¹⁹ As we have previously explained, "the rights to privacy and liberty are neither absolute nor comprehensive ... [and] their limits depend on a balance of interests." ²⁰

A. The Individual Right at Stake Is Fundamental.

The plaintiffs assert that the PCA burdens minors' fundamental right to privacy under article I, section 22 of the Alaska Constitution.²¹ This section of the constitution maintains that "[the right of the people to privacy is recognized and shall not be infringed." As we have previously explained, the primary purpose of this section is to protect Alaskans' "personal privacy and dignity against unwarranted intrusions by the State." ²² Because this right to privacy is explicit, its protections are necessarily more robust and "broader in scope" than those of the implied federal right to privacy.²³

Included within the broad scope of the Alaska 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 to privacy.²⁴ Of course, our original decision concerning the fundamental right to reproductive choice specifically addressed only the privacy interests of adult women, but because the "uniquely personal physical, psychological, and economic implications of the abortion decision ... are in no way peculiar to adult women," ²⁵ its reasoning was and continues to be as applicable to minors as it is to adults.²⁶ Thus, in Planned Parenthood I, we explicitly extended the fundamental reproductive rights guaranteed by the privacy clause to minors.²⁷

In the case at hand, the PCA requires minors to secure either the consent of their parent or judicial authorization before they may exercise their uniquely personal reproductive freedoms. This requirement no doubt places a burden on minors' fundamental right to privacy. As such, the PCA must be subjected to strict serutiny and can only survive review if it advances a compelling state interest using the least restrictive means of achieving that interest.²⁸

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.²⁹ We agree with the State that these are compelling interests.

Although the Alaska Constitution extends the right to privacy in equal measure to both minors and adults, it is not blind to the unique vulnerabilities and needs that accompany minority. As we noted in Planned Parenthood I, state interests that are inapplicable to adults may sometimes be compelling with regard to minors.³⁰ And this is certainly the case with regard to the State's asserted interest in protecting minors from their own immaturity. Lacking in "experience, perspective, and judgment," minors often do not possess the capacity to make informed, mature decisions, and are therefore susceptible to a host of pitfalls and dangers unknown in adult life.³¹ As we have recognized in the past, the State has a special, indeed compelling, interest in the health, safety, and welfare of its minor citizens and may properly take affirmative steps to safeguard minors from their own immaturity.³²

Insofar as and to the same extent that the State has an interest in protecting minors, so too does it have an interest in aiding parents to fulfill their parental respon-

sibilities. A minor child "is not [a] mere creature of the state," ³³ and the "affirmative process of teaching, guiding, and inspiring" ³⁴ a minor child is, in large part, "beyond the competence of impersonal political institutions." ³⁵ Parents, therefore, have an "important 'guiding role' to play in the upbringing of their children."³⁶ Indeed, it is the right and duty, privilege and burden, of all parents to involve themselves in their children's lives; to provide their children with emotional, physical, and material support; and to instill in their children "moral standards, religious beliefs, and elements of good citizenship." ³⁷ We thus echo the United States Supreme Court's statement that, "IuJnder the Constitution, the State can 'properly conclude that parents ... who have [the] primary responsibility for children's well-being are entitled to the support of laws designed to aid [in the} discharge of that responsibility' "³⁸

C. The PCA Is Not the Least Restrictive Means of Achieving the 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.³⁹ This "veto power" does not merely restrict minors' right to choose whether and when to have children, but effectively shifts a portion of that right from minors to parents. In practice, under the PCA, it is no longer the pregnant minor who ultimately chooses to exercise her right to terminate her pregnancy, but that minor's parents. And it is this shifting of the locus of choiee-this relocation of a fundamental right from minors to parents-that is constitutionally suspect. For a review of statutory schemes enacted around the nation reveals a widely used legislative alternative that does not shift a minor's right to choose: parental notification.

Currently, fifteen states have parental notification statutes in place.⁴⁰ Although the precise details of these statutes vary, they all prohibit minors from terminating a pregnancy until their parents have been notified and afforded an appropriate period of time to actively involve themselves in their minor children's decision-making processes.⁴¹ Stated another way, these statutes seek to involve parents, not by giving them "veto power," but by giving them notice and time to consult with and guide their daughters through this important decision. As such, although parental notification statutes undoubtedly burden the privacy rights of minors, they do not go so far as to shift a portion of those rights to parents.

Of course, as the dissent emphasizes, the PCA does include a judicial bypass procedure through which some minors may effectively regain the right to reproductive choice by obtaining judicial authorization to forgo parental consent.⁴² The State argues that "Jju-dicial bypass is the means by which a girl can relieve herself of the burden of parental consent." (Emphasis in original.) But the State and its supporting amici fail to effectively rebut the trial court's express findings to the contrary. According to the superior court's findings, the PCA's bypass procedures build in delay that may prove "detrimental to the physical health of the minor," particularly for minors in rural Alaska who "already face logistical obstacles to obtaining an abortion." The trial court found that judicial bypass procedures "will increase these problems, delay the abortion, and increase the probability that the minor may not be able to receive a safe and legal abortion." The State has not expressly challenged as "clearly erroneous" the superior court's findings on this point but dismisses these concerns, arguing that "[rlu-ral Alaskan girls will pursue bypass on the same trip to the same urban location where they must go to obtain their procedures." But not all minors possess the wherewithal to embark upon a formal legal adjudication during a time of crisis.

Moreover, the inclusion of this judicial bypass procedure does not reduce the restrictiveness of the PCA relative to a parental notification statute. Every state to enact a parental notification regime has opted to include either a judicial bypass procedure similar to the PCA's procedure or an even more permissive bypass procedure.⁴³ As such, the PCA's inclusion of a judicial bypass procedure does not set the PCA apart from or reduce its intrusiveness relative to parental notification statutes.

Ultimately, because the PCA shifts the right to reproductive choice to minors' parents, we must conclude that the PCA is, all else being held equal, more restrictive than a parental notification statute. The State has failed to establish that the "greater 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 protects minors from sexual abuse since "onee appr[ lised of a young girl's pregnancy, parents ... will ask who impregnated her and will report any sexual abuse"; and it strengthens the parent-child relationship by "increas[ing] parental involvement," "parental consultation," and open and honest communication.

These expressed legislative goals-increased parental communication, involvement, and protection-are no less likely to accompany parental notification than the parental "veto power." The dissent suggests that where a minor forgoes judicial bypass, parental consent guarantees "a conversation." But it guarantees no more than a one-way conversation and "allows parents to refuse to consent not only where their judgment is better informed and considered than that of their daughter, but also where it is colored by personal religious belief, whim, or even hostility to her best interests." ⁴⁴

Notification statutes protect minors "by enhancing the potential for parental consultation concerning a [minor's] decision." ⁴⁵ In fact, to the extent that parents who do not possess 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 notification requirement may actually better serve the State's compelling interests.

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.

1 . 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").

2 . State v. Planned Parenthood of Alaska, 35 P.3d 30, 41 (Alaska 2001) (Planned Parenthood I).

3 . 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)).

4 . Id.

5 . Ch.14, §§ 1-10, SLA 1997.

6 . AS 18.16.010(a)(3); AS 18.16.020.

7 . AS 18.16.010(c). The Act provides the doctor with an affirmative defense to prosecution and civil liability where compliance with the Act was not possible "because an immediate threat of serious risk to the life or physical health of the pregnant minor from the continuation of the pregnancy created a medical emergency necessitating the immediate performance or inducement of an abortion." AS 18.16.010(g). We note that the superior court interpreted this statutory language as "broad enough" to "contain[ ] an appropriate medical emergency exception."

8 . AS 18.16.020(1).

9 . AS 18.16.030.

10 . AS 18.16.030(c). Similar time limits apply to this court's consideration of a minor's appeal from a denied petition. AS 18.16.030(G).

11 . 35 P.3d 30 (Alaska 2001).

12 . Id. at 41.

13 . Id. at 46.

14 . Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003).

15 . Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004).

16 . Id. at 260 n. 14.

17 . Ravin v. State, 537 P.2d 494, 497 (Alaska 1975).

18 . Planned Parenthood I, 35 P.3d at 41.

19 . Cf. Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).

²⁰

21 . Because we conclude that the PCA violates the right to privacy under the Alaska Constitution, we need not address the plaintiffs' arguments that the Act also violates the equal protection clause or that the superior court erred in interpreting the Act to include a medical emergency exception.

22 . Luedtke v. Nabors Alaska Drilling Inc., 768 P.2d 1123, 1129 (Alaska 1989) (quoting Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 148 (Alaska 1977)).

23 . 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").

24 . Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963, 968 (Alaska 1997) (internal quotations omitted).

25 . Planned Parenthood I, 35 P.3d at 40 (internal quotations omitted).

26 . Id. (noting that "[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").

²⁷

28 . 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.

29 . More specifically, the State asserts that the PCA aims to (1) ensure that minors make an informed decision on whether to terminate a pregnancy; (2) protect minors from their own immaturity; (3) protect minors' physical and psychological health; (4) protect minors from sexual abuse; and (5) strengthen the parent-child relationship.

30 . 35 P.3d at 41 (quoting Am. Acad. of Pediatrics v. Lungren, 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' ").

31 . Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).

32 . 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").

33 . 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)).

34 . Id. at 638, 99 S.Ct. 3035.

³⁵

36 . H.L. v. Matheson, 450 U.S. 398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981).

37 . Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

38 . 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)).

39 . 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).

40 . 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.

41 . 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, to a parent or guardian" or twenty-four hours' written notice, which is deemed delivered forty-eight hours after mailing); Iowa Cope § 135L.3(1) (prohibiting physicians from performing an abortion on a minor "until at least forty-eight hours' prior notification is provided to a parent of the pregnant minor").

42 . AS 18.16.030(e)-(f) provides that a minor may bypass the 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.

43 . 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").

44 . 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").

45 . 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).