PLANNED PARENTHOOD OF THE GREAT NORTHWEST, JAN WHITEFIELD, M.D., and SUSAN LEMAGIE, M.D., Appellants and Cross-Appellees,
v.
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, No.
3AN-10-12279 CI Third Judicial District, Anchorage, John
Suddock, Judge.
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 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, Juvenile Law Center, 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.
OPINION
WINFREE, Justice.
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.
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. The 2010
voter-enacted Parental Notification Law-generally requiring
48-hour advance parental notice before a physician may
terminate a minor's pregnancy - revived the exception in
the existing 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
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" without
parental consent.[1] But at that time a carry-over
territorial criminal statute made 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]
In
1976, presumably in reaction to then-recent United States
Supreme Court decisions, the Alaska Attorney General issued
an informal opinion on the validity of 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 asAS18.16.010(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 reference
to AS 11.15.060(a)(3) with a reference to AS 18.16.011
(a)(3)[10] - although it 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
we examined this express privacy provision in the context of
pregnancy-related decisions and held that a woman's
fundamental privacy right to reproductive choice is more
broadly protected by the Alaska Constitution than the United
States Constitution.[13] And 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
concerns the Supreme Court and the Alaska Attorney General
raised in the mid-1970s.[16] The Consent Act's
constitutionality soon was challenged.[17] The superior
court enjoined the State from enforcing the Consent Act,
summarily concluding that it violated the Alaska
Constitution's equal protection guarantee.[18] The State
appealed, and in Planned-Parenthood I we remanded
for a full trial.[19] But we acknowledged that under the
Alaska 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 furthering those
interests.[22] We explained that requiring parental
notification before terminating a minor's pregnancy could
effectively meet the State's interests while imposing a
lower burden on the minor's constitutional privacy
right.[23] Because we 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, Mia
Costello, and Kim Hummer-Minnery (the Sponsors) sponsored a
parental notification voter initiative.[26]In August 2010
voters approved the initiative, titled the Parental
Notification Law, [27]constructed by amending the existing
but unenforceable Consent Act.[28] A parental
notification component was placed in AS 18.16.010(a)(3),
[29] thus reviving the medical
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 age 18 seeking to terminate a pregnancy.[31] It
includes specific requirements for parental notification,
[32] a 48-hour mandatory waiting period
between parental notification and the termination of a
minor's pregnancy (absent a parent's earlier written
consent), [33] 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
emergencies.[35] It also includes two provisions for
bypassing parental notification.[36] First, with the
assistance of a court-appointed attorney, [37] a minor
may seek a judge's permission to bypass the notification
requirement.[38] Permission will be granted if the
minor proves by clear and convincing evidence[39] that she
is mature enough to make the decision without parental notice
or consent or that her parents are abusive.[40] Second,
an 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 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 Law on the 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 preliminarily enjoined several "peripheral
features": 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 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 of
the Notification Law's provisions, arguing that those
provisions do not violate minors' constitutional privacy
rights; they also appeal the costs ruling.
III.
STANDARD OF REVIEW
We
apply our independent judgment to equal protection
claims.[43] 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
interests.[44] These are questions of law to which
we apply our independent judgment, adopting "the rule of
law 'most persuasive in light of precedent, reason, and
policy.' "[45]Underlying findings of fact are
reviewed for clear error.[46]
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
problems in its application, as long as it "has a
plainly legitimate sweep."[48] But a statute
infringing on a constitutionally protected right deserves
close attention.[49] And our duty to uphold the Alaska
Constitution is paramount; it takes precedence over the
politics of the day and our own personal
preferences.[50]
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 IP 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
ensures that parents are notified so that they can be engaged
in their daughters' important decisions in
[pregnancy-related] matters, "[53] our holding
addressed only the fundamental right to
privacy.[54] We explained that "although
parental notification statutes undoubtedly 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 that every conceivable
notification law will do so.[58] 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 right unless a
compelling governmental interest justifies the
discrimination.[59]
The
dissent and the concurring opinion also fail to recognize
governing precedent from Sands ex rel. Sands v.
Green, [60] involving a constitutional challenge
to 1997 's reformed statute of limitations tolling
provision.[61] Earlier, in Evans ex rel.
Kutch v. State, [62] the four-person court
had addressed whether the new provision passed constitutional
equal protection muster, and two justices concluded that it
did.[63] In Sands the same statutory
provision was challenged on the different constitutional
ground that it violated minors' due process rights of
access to the court.[64] We rejected the argument
-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]
In
Planned Parenthood II we answered the question
whether the then-existing parental consent law violated
minors' constitutional privacy rights, [66] and
declined to answer the question whether the then-existing
parental consent law violated minors'
constitutional equal protection rights.[67] Here we face the
new and very different 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.
As a matter of nomenclature we refer to that portion of a law
that treats two groups differently as a
"classification."[69]
To
determine whether the Notification Law discriminates between
similarly 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
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, however, cite Alaska Inter-Tribal Council v.
State[74] for a different line of equal
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 generally
a question of fact."[76] The federal case we
relied upon similarly did not involve 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 "class of
one."[77] Alaska Inter-Tribal Council
did not purport to overrule the stated framework when
considering statutory enactments, used as early as 1994 in
Gonzales v. Safeway Stores, Inc.[78] and then
as recently as 2003 in Stanek v. Kenai Peninsula
Borough, [79] and used again not long after
Alaska Inter-Tribal Council in Public Employees
Retirement System v. Gallant[80]
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 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 term differently from minors 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 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
restrictive alternative, the classification will be
invalidated.[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 Constitution's privacy clause guarantees the
fundamental right to choose between pregnancy termination and
carrying to term.[83] And it has long been established
that a law burdening the fundamental right of reproductive
choice demands strict scrutiny.[84]
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 the [State's]
interest."[85] For the Notification Law "[t]o
be narrowly tailored, there must 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 under inclusiveness 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]
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 of minors and in fostering family involvement in a
minor's decisions regarding her
pregnancy."[90] And we later stated that "on
the most generalized level, " the State has a compelling
interest in "protecting minors from their 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 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 and dangers unknown in adult
lifer[92] The State's interest in
"protecting minors from their immaturity" is in
protecting minors from specific 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 least restrictive means
available to accomplish the state's
purpose."[94] If the means-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]
i.
Parental involvement [96]
We
conclude 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 classes of pregnant
minors. Parents do have an "important 'guiding
role' to play in the upbringing of their
children."[97] 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, and elements of good
citizenship.' "[98] 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 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 to aid [in the] discharge of [their]
responsibility"[99] to guide their children as are
parents who might counsel carrying to term.[100] Yet
the Notification Law's effect is that only a minor
seeking termination obtains parental guidance and only the
parents of a minor seeking termination are given an
opportunity to counsel their daughter about alternatives. But
absent a compelling interest 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 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 term becomes essentially
irreversible, and the opportunity to exercise reproductive
choice is lost.[102] Trial testimony also reflected
that it is possible for a 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.
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 cause mental
illness."[103] The court noted that four doctors
who had performed abortions in Alaska testified at the trial,
and none indicated parental notification was medically
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 from obtaining prenatal medical care. The
State asserts 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 notification would
discourage pregnant minors from seeking timely 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 in
discouraging termination and favoring carrying 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]
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
term does not strictly need medical treatment" while
"[t]he pregnant minor who seeks to terminate her
pregnancy . . . cannot do so without medical
treatment."[105] This arbitrary distinction is
untethered to the State interests 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 medical care they otherwise might forgo
or delay for fear of parental involvement[107] - and
does not necessitate disparate treatment of the two groups.
iii.
Sexual abuse prevention
We
conclude that the State's interest in protecting minors
from sexual 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 therefore
more in need of protection - than those seeking to carry to
term.[108] No facts 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]
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 protection guarantee.[110] New
Jersey's Constitution does not contain the explicit
privacy 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 immaturity, fostering family
communications, and protecting parents' rights to raise
their children - and determined that mandatory parental
notification of planned pregnancy terminations did not
further those interests.[114] The court concluded
that "the New Jersey 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, the effect of declaring the notification statute
unconstitutional 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.
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 example, relying on Planned Parenthood
of Southeastern Pennsylvania v. Casey, [118] 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 alternatives to
abortion."[119] The dissent therefore concludes
that the State has a 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 unborn life under the United States
Constitution, [121] In the case before us: (1) the
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
protecting minors from risks to mental and physical health
and from sexual abuse.[123] 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 reiterate that
our Planned Parenthood II conclusion indicating a
parental notification law might satisfy Alaska's
constitutional privacy 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.
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 restrictive means of achieving that
interest."[1] This law does not achieve its goals
using 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 constitutional right to privacy.[3] I
continue to view the right to privacy as the appropriate 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
responsibilities."[5] 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 situated, we look to the [S]tate's reasons for
treating the groups differently."[6] The State's
reasons are discernable from the full context of Alaska's
medical notification 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,
and for diagnosis and treatment of venereal
disease."[8] This exception encourages minors 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 pregnancy, in contrast, cannot do so without medical
treatment.[9] 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 of venereal disease" is qualitatively
different.
The
State may not discriminate between women in order to
influence their reproductive choices.[10] And carrying a
pregnancy to term may entail risks to a minor's 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 Parenthood II we determine[d] 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 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 constitutional muster.[12] 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 under the
court's equal protection analysis.[13] For these
reasons, I respectfully disagree 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.
II.
THE LAW VIOLATES THE RIGHT TO PRIVACY.
The
right to privacy, enshrined in the Alaska Constitution,
[14] protects the fundamental right to
reproductive choice for minors as well as
adults.[15] 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
interest."[16]
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 obtaining
the consent of her parents, unless she had been granted a
judicial bypass.[17]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 involving parents in their
minor children's abortion decisions: parental
notification."[18]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 privacy rights of
minors."[19] These laws must still achieve their
aims without any 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 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 abuse by the parent or guardian; and (3)
that parental consent[20] is not in the minor's best
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 convincing evidence;[23] only
two require her to prove that notice would not be in her best
interest by that standard.[24] And not one of the
six states that provide for bypass on 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
standard.[27] 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 primary source of
evidence."[28] As in the child custody context
where this issue has 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 will
likely be foreclosed to many of the young women it is
designed to protect.[31]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 the
restrictiveness" of the provision in
question.[32] So for a daughter who was abused by
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
identification[33] or that the physician record the
number dialed and the date and time of the phone
call.[34] In 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
relationship to the minor, "[35] and that the
physician delivering notice by phone "attempt[] 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 herself
rather than permitting delegation of this responsibility to
medical office staff.[37]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] 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 for failure to provide notice, two require that the
physician's failure be "willful."[39] Only
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 Law explicitly allows punitive damages
against physicians without requiring any finding of
willfulness.[41] This is yet another way in which
this statute is an outlier, 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.
Fifth,
I cannot conclude that the specter of a felony conviction and
five years imprisonment for any person who knowingly violates
the notice requirement[42] is narrowly tailored to advance
a compelling state interest. Four notification states have no
criminal penalty attached to their notification
laws.[43] Another six make violation a
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 notice, and
it applied even when medical conditions rendered fetal death
inevitable.[46] 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
we considered in Planned Parenthood II applied only
to minors 16 and younger.[47] Both 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 allow her the same
independence with regard to her reproductive choice,
[51] a decision 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 Act as a whole that the entire Act must
fall."[52] Our severability doctrine rests on
the test set out “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 adopted by a ballot measure, like the
Parental Notification Law.[54] I believe that the
remaining, constitutionally valid portions of the Parental
Notification Law would not satisfy this test.
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 the legislature.'
"[55] In assessing legislative intent,
our recent cases have considered whether the act in question
contained a severability clause, reading such a clause as the
primary "indication] 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]
The
Parental Notification Law did not contain a severability
clause. The omission of a severability clause is particularly
illuminating here, given that the initiative's sponsors
had reason to know, based on this law's history,
[58] that the enacted 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 from the 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 and complete in itself'[61] 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
sufficient to conclude that 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 be given"[62] to this law once critical aspects
of virtually all the core provisions are found
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 program quite different from the 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 meaningful
legislative enactment."[66] Emphasizing that a
court "cannot rewrite or reshape a law in order to
maintain its constitutionality, "[67] the court
ultimately explained that it was required to "strike the
entire law" because "its purpose [was] so
eviscerated by necessary nullifications that the original law
cannot stand in any working order."[68]
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
statutory framework under the "notice or consent"
provision at issue in this case.[69]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 own cases, [71] as well as similar approaches
used by other courts, [72] caution against wholesale
revision of statutory language in this manner. Nor can we
simply modify the constitutionally problematic provisions as
the dissent suggests, [73] because we must refrain 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,
because the Parental Notification Law fails both prongs of
the 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 the least restrictive means, and
I concur with the court's judgment that the law must be
struck down as violating the Alaska Constitution.
STOWERS, Justice, dissenting.
I
dissent from today's opinion because it unjustifiably
departs from our earlier approval of parental notification in
Planned Parenthood II, [1] misapplies our equal
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 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
initiative[3] 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.
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, subject to certain
exceptions.[6] Planned Parenthood challenged this
Alaska Parental Consent Act, arguing that it violated the
minors' rights to privacy and equal
protection.[7] 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 ...