State v. Planned Parenthood of Alaska

thаt occurred after the "expanded" activities fixing the boundaries. Alaska, Appellant, summer of 1983 STATE of resulting possession from The evidence of not meet the ten-

post-19883 activities does year requirement of AS 09.10.0830. ALASKA, PLANNED PARENTHOOD OF activities, Moreover, even if all of Green's Whitefield, M.D., Jan and Robert occurred, were used no matter when Klem, M.D., Appellees. land, on the the west measure the boundaries No. S-8580. by established and south boundaries justified. of the still not be Most court would Supreme Court of Alaska. by the approximately twelve acres awarded south, southwest, and west of court lie to the Nov. Apart from the cleared area the house. sits, no more than said to be

where house acre, work was done one-half of an no other west, all that To the was southwest. road, stretching clearing the done was it, up trespass- putting a no chain across justify award- ing sign. The road work can by prescription in the Green an easement land not otherwise road where it crosses by clearing possessed her. The around justify house to the south and west can awarding cleared to her. But land so are located hun-

south and west boundaries away clearing. As to dreds of feet southwest, south, the land to the west clearing between this and these boundaries simply there no evidence of visible acts of possession. summary, deciding

In the boundaries of adversely possessed by the land Green impermissibly relied on activities that years or more before the did not occur ten addition, statutory period. end of the encompassed set the court boundaries as southwest, south, much land to the west actually possessed Green was never control, by any indicating activities her might when those activities have tak- matter place. en I For these reasons would reverse judgment court and remand

with directions to redraw the boundaries actually encompass the land that she ten-year period. possessed applicable for the and, put although years, might planted and trees thinned in in later there trees were were in the direc- areas that are still visible in the 1993 be some it was listed uncertainty, photo, added.) (Emphasis tory garden planted, at the time. A fruit AB.

32 Before: MATTHEWS, Justice, Chief

EASTAUGH,FABE, BRYNER, and CARPENETI, Justices.

OPINION

BRYNER, Justice. I,. INTRODUCTION appeals a summary judgment order declaring void, as contrary to the Alas- ka equal protection Constitution's guarantee, a statute requiring minors to obtain judicial consent or authorization before ob- taining an abortion. We affirm superior court's decision on preliminary issues- plaintiffs whether have standing, whether they may properly claim that the statute is face, unconstitutional on its whether Alaska guarantee Constitution's of privacy is self executing, and whether guarantee extends to minors-but conclude that court erred in declining to hear evidence on Hawley, Jr., W.H. Attorney Assistant Gen- and to decide the questions central eral, Special Office of Prosecutions Ap- the state has a compelling interest in enfore- peals, Anchorage, James Doogan, Jr., P. As- consent statute and whether sistant Attorney, District Fairbanks, Cynthia the statute is properly promote tailored to M. Cooper, Deputy Attorney General, An- the state's interest. We thus reverse the chorage, and Botelho, Bruce M. Attorney summary judgment order and remand for an General, Juneau, Appellant. for evidentiary hearing. Joyee E. Bamberger Kentch, and Jim Co- operating Attorneys, Alaska Civil Liberties II., FACTS AND PROCEEDINGS Foundation, Union Anchoragе, and Janet L. In 1997 Legislature Alaska passed Crepps, S.B. Center Reproductive for Law & Pol- 24, an iey, act prohibits Simpsonville, SC, Appellees. for doctors per forming abortions on unemancipated women Gara, Les Friedman, White, Rubin & An- under years seventeen age paren without chorage, for Amicus Curiae Alaska Chapter tal judicial and that of the American Academy of Pediatrics. subjects doctors penalties criminal for Kevin Clarkson, G. Brena, Bell & Clark- knowingly performing abortions on minors son, P.C., Anchorage, for Amicus Curiae without required consent or authorizati Concerned Parents, Alaska Inc. on.2 The act's consent can be Benjamin Paul Linton, Northbrook, IL, by met written consent parent from a or Jeffrey Troutt, D. Juneau, guardian Amicus a court order bypassing cons Curiae Legislature. Alaska State ent.3 To obtain a bypass order, a 1-6, 1. See §§ Ch. SLA 1997. upon abortion a minor who is known to the person pregnant, unmarried, to be under 17 18.16.010(c) 2. See AS (making violation of con- years age, unemancipated unless, before sent punishable statuie years five imprison- abortion, at least one following applies: ment, $1,000, up both); fine of see also (1) one of the parents minor's or the minor's 18.16.0108), AS (g) (listing affirmative defenses guardian or custodian has writing consented in violation). for this performance to the or inducement of the abor- tion; 3. AS provides: 18.16.020 (2) a court issues an order required Consent under AS 18.16.030 minor's abortion. A before authorizing person may the minor to knowingly consent perform to the abortion or induce an choices, court reproductive court superior mature complaint make must file minor dilute do not differences that such convincing evi reasoned by clear and аnd establish a minor's constitu "sufficiently quality mature fundamental she is either dence intelli relate instead privacy, to decide enough informed tional and well without in control countervailing abortion have an gently whether the state's or custodi guardian, minors parent, under which ling the consent the cireumstances not be consent su privacy right an" or exercise can court must interests.4 her best pervision. unrepres who are appoint counsel that the Alaska Consti- Having determined proceedings ented,5 bypass minors and protects privacy clause tution's hear a fails to If the confidential.6 alike, superior court decided adults filing, the days after five complaint within judicial or parental consent requiring the act authorizes inaction constructively court's constitutional could withstand authorization for herself.7 to consent minor only if the state grounds serutiny on pa- enacted legislature after the Soon compelling interest it had a that established re- authorization or consent rental no less restric- and that requiring consent in of Alaska Parenthood Planned quirement, existed. achieving that interest means of tive Klem and Robert Whitefield and Drs. Jan recognized that to have court seems The court, claiming filed an action might be points summarily on these ruling violates is void because the act that neces- noting "it would be problematic, privacy, guarantees Constitution's Alaska legislative statements sary to examine discrimina- freedom equal protection, as to fact as well findings of and purpose They sex, process. due and on tion based evi- upon fact based findings of reach summary judgment. moved later matter." in this produced dence motion, conclud- granted superior court equal protection violates the act resolve no need to found But the court judicial authorization or consent requiring plaintiffs issues, ruling instead these abortion, but who choose pregnant on an summary judgment to entitled were give to birth. choose those who not for ground. Without constitutional alternative issue, equal protection reaching the Before compelling a had deciding the state of a however, the issue addressed the court to ob- pregnant minors requiring Relying privacy. minor's judicial authorization or parental consent tain express guarantee Alaska Constitution's abortion, the court concluded to obtain interpreting case law this court's privacy,8 Alaska Constitu- act violated that the from states cases right, and relevant none of clause because equal protection tion's provisions, interpreting similar supporting and purposes act's stated privacy is superior court determined inter- compelling state a findings established right, that this individual a fundamental or the consent applying est reproduc woman's pregnant encompasses minors who choose choices, applies to minors that it tive abortions, those who age. co-extensively, regardless adults give choose to birth. be distinctions recognizing obvious While appeals. The state capacity to and an adult's a minor's tween 18.16.030(k). SeeAS guardian, or custo- consent of a without parent, abortion; or to the consents and the minor dian, 18.16.030, court, under AS inaction 18.16.030(c). ap- A similar 7. See AS to con- constructively the minor authorized has supreme court's consideration plies to the consent of parent, to the abortion sent petition. See AS appeal a denied minor's consents 18.16.030(). and the minor guardian, custodian, or to the abortion. (B); 18.16.030(b)(4)(A) AS

4. See AS § I, art. Alaska Const. 8. See 18.16.030(e). 18.16.030(d). 5. See AS III. DISCUSSION abortion Alaska, services to women in includ ing minors. The state nonetheless contends A. Standard Review that both doctors lack standing because nei grant We will affirm a summary ther specific faces a prosecution threat of judgment only when, construing disputed all alleges past prosecutions. But the doctors inferences of fact in favor of the non-moving need not allege such drastic harm to meet party, we find that there genuine are no Alaska's lenient test of standing. paren issues of material fact and the moving party tal authorization act would is entitled judgment as a matter of law.9 require both doctors to change their current deciding questions law, duty is to "Tolur practices and expose them to civil and adopt the rule of law that persuasive is most lability criminal if failed comply;15 light precedent, reason, policy." this suffices to establish more than a trifling speculative injury. Moreover, Drs. White B. Standing field and Klem standing derive from their The state contends that Planned Par patients. physicians That have standing to enthood and Drs. Whitefield and Klem lack challenge abortion laws on behalf of prospec standing pursue this action. But we have patients tive seems universally settled; in long interpreted Alaska's standing require deed, the United Supreme States Court has ment leniently in order to facilitate access to emphasized physicians that are "uniquely the courts.11"The basicidea ... is that an qualified" to litigate constitutionality of identifiable trifle enough is for standing to state action interfering with a woman's deci fight question out a principle.12 of Here, sion to terminate a pregnancy.16 Planned Parenthood of Alaska has a strong Accordingly, we conclude that statute; Planned and direct the challenged Parenthood and Drs. Whitefield and Klem injuries alleges it are more than 13 have standing to challenge con- trifling; and no one disputes that its claims sent requirements. act's important raise questions of principle. Moreover, in other Alaska litigation abortion against Planned Alaska, Parenthood of C. Facial Challenge state has question failed to organization's The state next plain asserts standing to challenge legislation.14 abortion tiffs' facial constitutional challenge must fail We find no sound deny reason to Planned they because have failed to show that standing Parenthood here. consent or Drs. Whitefield and Klem also have a could have no constitutional direct interest disputed statute: both applications. In advancing assertion, physicians allege regularly provide the state relies on State, Javed v. Depart- 9. See Magill, Newton v. pregnancy 872 P.2d 1213, options, care, including prenatal (Alaska 1994). adoption." abortion and Ha, 1281, 10. Guin (Alaska v. 591 P.2d 1284 n. 6 eg., 14. See, State v. Planned Parenthood Alas of 1979). ka, Inc., Alaska Court Supreme Docket No. S- 8610, upon dismissed light settlement in Sten State, 11. See Trustees Alaska v. 736 P.2d for berg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 (Alaska 1987). (2000). L.Ed.2d 743 Court, Wagstaff Superior Div., v. Family Court 18.16.010(c),(e). 15. See AS &1225 7n. complaint, In its Planned Parenthood of Alas- Singleton 16. See 428 U.S. Wulff, 117, 96 ka asserts (1976); Anchorage, S.Ct. clinics in 49 LEd.2d "operates City see also Sitka, and Soldotna, where it Health, Akron v. Reproductive Akron Ctr. services provides more patients than per year, including 462 U.S. 416, 440 n. 30, 103 S.Ct. 2481, 76 young age women under the of seventeen. (1983), In- LEd.2d 687 grounds ovеrruled on other among cluded [Planned services Planned Parenthood Parenthood] Southeastern Pa. v. provides to its family clients are planning, preg- 505 U.S. 833, 112 Casey, S.Ct. 2791, 120 L.Ed.2d nancy testing counseling and referral on ment Public Safety,17 quoted where we restriction, law is a group the Supreme Court's decision in United whom the law is irrelevant." Applying Ca States v. Salerno18 for the proposition that sey's here, reasoning we conclude that Saler- statute facially "lal unconstitutional if 'no poses mo no bar plaintiffs' facial challenge set of circumstances exists under which the Alaska's au Act would be valid.'19 But we did not in requirement. thorization voke the Salerno rule in justifi Javed as a cation for avoiding review; Right D. to Privacy instead, we relied on the rule for the dis tinctly purpose of severing a lim 1. Legislative implementation Alas- narrower portion ited statute, of a which we found right ka's to privacy unconstitutional, from the balance of the I, Article section 22 of the Alaska statute, which we found valid.20 Constitution provides, "The peo And in any event, Salerno's "no set of ple to privacy recognized and shall not be req circumstances" language is rigid not a infringed. The legislature shall implement In reviewing challenges to uirement.21 this section." Focusing on the second sen statutes, abortion-related the United States tence of this provision, the state contends Supreme Court has shown considerable flexi that the is not self executing bility in allowing litigants to raise claims given and can be effect through legisla alleging invalidity. facial For example, tion. The recognizes state proposed Planned Parenthood Southeastern Penn reading I, article section conflicts with sylvania v. Casey,22the Court invalidаted a our recent decision in Valley Hospital Asso spousal notification statute though even sta ciation, Inc. v. Mat-Su Coalition for suggested tistics ninety-five percent of Choice,25but the urges us to overrule

women seeking abortions notify ValleyHospital. regardless husbands of the requirement.23 In eschewing rigid a application Salerno, But accepting the argument state's would the explained: Court ‍‌​‌‌​​​‌‌​‌‌​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​‌‌‌​​‌​‍"The proper require focus of us to do much more than overrule inquiry is the group for whom Valley Hospital. I, Soon after article section (Alaska 17. 1996). 921 P.2d 620 case-by-case curs on a 73, basis." 530 U.S. at 120 S.Ct. 2054. And Justice Stevens's dissent 739, 745, 18. 2095, 481 U.S. 107 S.Ct. 95 L.Ed.2d opinion described Salerno 's challenge facial (1987). 697 merely rule as "suggested by majority [Salernol," asserting that the correct test for a 19. Salerno, 921 P.2d at (quoting 625 481 U.S. at challenge facial is whether an unconstitutional 745, 2095). 107 S.Ct. statute plainly legitimate has "a sweep." 530 6, U.S. at & (Stevens, 85 n. J., 120 S.Ct. 2054 20. Id. at 625-26. dissenting) (emphasis added). Meanwhile, in a separate dissenting opinion, Kennedy Justice ex- Indeed, 21. good there is question reason to pressly judgment reserved on the issue of "the extent to Supreme which the Court itself sub- extent to which federal rules for facial chal- scribes to Salerno's challenge facial rule and lenges to statutes control in state courts." 530 rule would bind state courts, even U.S. at 94-95, 120 S.Ct. 2054. In contrast, Jus- assuming that it binds federal tribunals In Souter, tice separately concurring, accepted Granville, 57, Troxel v. 530 U.S. 120 S.Ct. question power "the highest a State's (2000), 147 L.Ed.2d 49 a Supreme divided to construe its domestic statute and to Court declared applied unconstitutional as apply demanding ruling standard when on its Washington nonparental visitation statute that facial 530 constitutionality." U.S. at 79, 120 Washington Supreme Court had ruled facial- S.Ct. 2054. ly unconstitutional. The separate opin- Court's engage ions in an internal debate that reveals 22. 505 U.S. 112 S.Ct. 120 LEd.2d uncertainty considerable as to Salerno's status 674 and reach. explaining why Washington's vis- itation law should not be facially declared un- 894, 898, 23. See id. at 112 S.Ct. 2791. constitutional, example, Justice O'Connor's plurality opinion rely Salerno, did not on saying Id. at instead 112 S.Ct. Court should be "hesitant" per find a se constitutional violation "[blecause adjudication much state-court in this context oc- 948 P.2d 963 legislature adopt, that each would be free to added to our constitution we alter, recognized protected it Alaska citizens' abrogate. or even privacy in right to their homes." "basic proposed interpretation The state bases its then, applying privacy apart from Since point legislative history that arose right Valley Hospital to a woman's clause in obliquely Valley Hospital.36 privacy we have pregnancy, to abort a extended originated clause in 1972 as Senate Joint protection clause's "to commercial or busi Resolution No. 68.37 As amended repeatedly premises"; we have ruled ness House, Senate and transmitted to the SJR 68 it the constitutional broadens read: against unreasonable searches and seizures incrimination; against amplifies privilege and self SECTION RIGHT OF PRIVACY. it we have held that bars the people privacy recog 29 surreptitiously recording state from conver legis and nized shall be violated. The circumstances;30 sations under certain provide prosecution lature shall for the and safeguards private have concluded that punishment public private officials and records,31 permissible limits medical section, parties who act in violation of this requirements,32 scope рublic disclosure provide supple and shall civil remedies to protects involving communications "sen ment common law remedies to redress and " personal person's 'a sitive information" or prevent legislature such violations. The concerns'"; more intimate and we have provide protection shall for the and securi formulating invoked it as a basis for broad ty of information available to the State to privacy standards to shield the interests of necessary protect rights the extent employees private citizens.35 recognized of the individual in this section nullify provide The state would thus have us al- protection and shall further for the enforcing most three decades of case law security gathered of information under guarantee privacy. Alaska's constitutional this section the State.38 For the state reads this constitutional lan- According to the minutes of the House old, guage, thirty years having now almost Committee, Judiciary during a committee virtually meaning yet; the state's hearing on this view, judiciary hamstrung making chairman [committee Moran] wondered anything adopt position it.of To phrase about "shall not necessarily be violated." reduce clause from a really personal right privacy? is the to guarantee basic freedom to a What This legislative option-a possible protection [Representative] mere needs to be defined. (Alaska (Alaska State, 26. Ravin v. 537 P.2d 494, State, 81, 504 See Messerli v. 626 P.2d 86 1975). 1980). Rohde, State, Labor, Dep't & v. Woods Inc. Comm'n, 33. Falcon v. Alaska Pub. 570 Offices (Alaska 1977). 469, (Alaska 1977). 138, 565 P.2d 150 P.2d 480 eg., 28. See, Jones, 317, State v. 706 P.2d 324 Borough, 34. Pharr v. N. Star Fairbanks 638 P.2d (Alaska 1985); State, 640, v. 593 P.2d Schultz 666, (Alaska 1981) Oliver, (quoting 670 636 P.2d (Alaska 1979); Daniel, 408, 642 State v. 589 P.2d 1167); Court, at see also Doe v. Alaska Superior 1979); State, (Alaska Zеhrung v. 416 569 P.2d Dist., 617, (Alaska Third Judicial 721 P.2d 629 189, (Alaska 1977); Rohde, Inc., 199 Woods & 1986). 565 P.2d at 150. Rue, 35. See Alaska Alliance v. 948 P.2d Wildlife State, Oliver, 29. See Revenue v. 636 P.2d Dep't of 976, (Alaska 1997); Jennings, 980 Jones v. 788 1156, (Alaska 1981); State, Pinkerton v. 784 (Alaska 1990). 732, P.2d 737-38 671, (Alaska App.1989). P.2d 36. See 948 P.2d at 969 & n. 10. Valley Hosp., Glass, 872, (Alas- 30. See v. 583 P.2d 879-81 State State, 1978); ka see also Palmer v. 604 P.2d 5, 1972). (May 37. See 1972 Senate Journal 865 (Alaska 1979). State, 68am, (May 31. See 38. SJR Gunnerud 1972 Senate Journal 970-71 1972). Barber moved to phrase.... delete [the] hensive definition privacy, the House Judi- Moran said that he would like to see the ciliary simply Committee opted to "leave out people have the privacy but would details," the deciding instead to treat the new phrased like it like other sections of the "lke other sections of " [Representative] constitution. Banfield the constitution "stating principles [its] moved to delete the second sentence. generally." This action, course of the com There was objection. no [Peterson, Art believed, mittee would ensure peo that "the counsel,] committee said we say could ple have the privacy," while at the implement "shall this section" or "shall same time providing for "easier administra provide for implementation of this see tion" through legislative "implementation" of tion" and leave out the details. This would procedural omitted details-details such stating be principles generally ... which Representative as suggested Barber's penalty allows for easier administration. Barber ction.44 se felt that we leaving were out penalty When way, understood in this section. Moran said constitu- this would be covered tion's mandate implementation for "implementation." does [Representative] legislative make approval agreed Rose leaving execution neces- the entire first sary for sentence with guarantee clause's core general broad language to take root and have meaning; instead, second sentence providing legis mandate implementation simply signals lative need for entirely legisla- be ad equate. guidance tive -It provision's was change decided to "violate" administra- tion application. "infringe." because it was Although dermine the tion execution. proposition: mar and that the minutes evant on the the minutes for a new minutes as irrelevant on terizing them "largely "informational" privacy.42 We described the which Hospital's argument ly After holding committee minutes in connection with Valley decided to For in our In Valley Hospital, we considered these became article was originally style." is not a self-executing provision. we passed prepare agree issue, view, state's this unable to establish that article I, by the House and ultimate discussion, meant that the minutes are rel section 22.41 But the state now offers we the minutes argument that article committee believe that agree debate of extend the committee issue, on a reflect against self government: 'That all substitute,40 I, compre charac section argues I, gram that, see un preserve from the people and must be central stitution serves as a check on constitutional analysis holding that were v. Nabors requirements Yet we went on to take note of "traditional bring to our "implementthis section." apply 22], powerful as a constitutional statement observe[d] Indeed, we recognized as much in Luedtke argument, citizens' its urged legislature tenet of American constitutional- application. their freedom is the oldest аnd most Alaska Drilling, to extend the privacy clause's provision; initially rights, attention private has exercised Nor contains lawful action.46 Addressing any does it ^[47] [article Inc.,45 held parties statutes which power the appear guidelines where we I, power power the con- check to did not derives section that. of 39. H. Jud. Comm. Minutes at Leg., 318-19, 7th 44. H. Jud. Comm. Minutes at Leg., 318-19, 7th 30, (May 1972). 1st Sess. 30, 1972) (May 1st added). Sess. (emphasis 40. See id. (Alaska 1989). 45. 768 P.2d 1123 41. See (June 1972 5, House Journal 1478-79 1972). 46. See id. at 1129-30. Valley

42. Hosp., 948 P.2d at 969 & n. 10. 47. Id. at 1129. 43. Id. at 969 n. 10. 38 provides, It further origin." sex, case national Alaska reviewing after And ism'"48 legisla clause, "[tJhe privacy the as does purpose primary "[The law, we concluded: In Unit this section." implement shall ture pro the provisions constitutional of these Richardet,52 declined v. Jaycees ed States dignity privacy 'personal of tection I, substantive 83's section article extend to by the intrusions unwarranted against action, declaring the private to proscriptions 49 to extend declined therefore We State."" restraint only as a effective to be provision actions to prohibitions I, 22's section article recognizing that But in action.53 state on that, in the ab holding persons, by private action, we state constrained provision this express history or legislative of sence implem legislative search need to found action, clause the private of proscription recog Lueditke,Richardet Like entation.54 purpose core serving its limited must be language providing that, despite nized of the abuse against "restraining force aas provision of implementation, legislative 50 power." governmental personal grants a Constitution Alaska clause privacy refusing to extend By self exe people is directly to Alaska's restraining gov purpose core beyond its constitutional core respect to its cuting with recog necessarily Luedike power, ernmental purpose.55 fully 22, effective be I, section article nized history of then, legislative summary, action, with governmental as a restraint of cases decades three privacy clause our implementation.51 legislative out firmly establish provision interpreting people's finds Luedike Moreover, guarantee-the our decision its basic governmental constru- unwarranted privacy decision in an earlier support added upon the fully effective intrusion-became implemen- with provision constitutional ing a further need for adoption, language provision's identical language tation legislative 3, or without I, With implementation. section 22. Article I, section article attrib- the usual has action, guarantee per- this "[nlo states Alaska Constitution its broad provision: a constitutional any utes of civil enjoyment of denied is to be son fall with- applications particular creed, color, contours race, right because political 1983). Tribe, (Alaska American 666 P.2d 1008 52. H. (quoting Laurence 48. Id. ed.1988)). (2d 1-2, at 2 § Law Constitutional id. at 1013. 53. See State, Inc. v. Rohde, & (quoting Woods Id. 138, (1977) (quoting Labor, 148 P.2d Dep't 565 See id. 1967) (Alaska State, 431 P.2d v.Weltz I, guarantees section (referring article seizures))). attempts analo- unconvincingly searches against unreasonable 55. The State- v. Alaska to Hootch present case gize the Jaycees States (quoting United at 1129-30 Id. (Alaska System, 536 P.2d Operated School 1983) (Alaska 666 P.2d Richardet, v. there at issue clause constitutional Fairbanks, 471 P.2d City (quoting Baker which VII, requires section article omitted). 1970))) (emphasis system and maintain "establish legislature to children open to all public schools arose, local litigation present Notably, before assigns explicitly Because this State." agreed with expressly Attorney General ongoing duties that specific, legislature implemen- clause's interpretation of nature-establishing and maintain- legislative in Informal Op. See 1984-2 tation requirement. declined (''The legislature system has local schools-we & n. Att'y Gen. specific requiring a "open" constitutional with the word comprehensively dealt construe legisla- building that the fact "[the of action-the privacy" legislative course right to Hootch, 'implemented' villages. has not ture in all Alaska schools its force contrast, imple- detract Here, legislative does not right privacy by at 804. 22, I, of the Alaska far 6 XII, section section language article effect. Article mentation provisions of the provides that Constitution lan- substantive the provision's less specific; 'self-executing whenever be citizens, shall constitution to not directly grants to Alaska guage 105, Att'y Op. Gen. "); Informal 1982 possible.' right personal, broad-based legislature, a discussing public disclosure (same 2 in n. 107 intrusion; the role governmental against files); Informal 1980 program longevity bonus grant constitutional interpreting this kind (same discussing 24, Gen., in 1980 Att'y Oct. Op. judicial nature. quintessentially files). confidentiality of loan

30 judiciary's province subject and are fully tends to all Alaskans but can be limited definition, interpretation, and refinement for compelling reasons. Assuming that through ‍‌​‌‌​​​‌‌​‌‌​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​‌‌‌​​‌​‍the traditional adjudica- course of state has a compelling interest in requiring tion, by case case. to obtain consent or authorization-as the state insists it does-

2. rights The privacy minors to approaches both achieve the samе re- sult. They would differ only if the state Citing federal decisions upholding parental lacked a compelling require interest pa- consent statutes under the United States rental authorization. In Constitution and Alaska upholding cases event, that because the state acknowledges the state's broad authority protect chil right privacy extending minors, harm,57 dren from argues the state that even approach implies that the state would be free if the Alaska Constitution creates a self- to restrict privacy for non-compelling reasons executing right reproductive privacy, that or, potentially, for no reason at By all. right should not extend to minors. contrast, superior under ap- court's superior approached this issue proach, because the privacy right extends to from a somewhat different perspective, rul- Alaskans, all the state would be barred from ing that the Alaska gives Constitution preg- restricting a privacy minor's unless it had a nant minors the right same basic to repro- compelling reason to do so. privacy ductive that gives pregnant adults. Precedent, reason, policy recommend The court certainly recognized that minors superior approach. court's Our decisions protected need to be from immature actions have noted the premise "established and that the state has an interest in ensuring children possessed are rights fundamental protection. It nonetheless reasoned that under the Alaska constitution." In Breese these considerations bear less on the exis- Smith, example, we held that students quality tence and right priva- minor's attending public schools have "a constitution cy than do on the legitimacy scope right al to wear their hair in accordance with restrict, of the competing state's personal their tastes." Although Breese ing minors from exercising dealt with the Alaska guaran Constitution's the consent of parents. their liberty tee of rather clause, than its privacy Although the sharply it, criticizes the which yet had ratified, to be our opinion approach court's has much in com- recognized children to be people having per mon with approach state; favored rights sonal and went inquire on to and to the extent approaches two the state had sufficient reason to restrict differ, the court's faithfully more reflects the rights.61 those Breese, Since deciding we Alaska Constitution's language and values. have taken the approach same up cases approach state's posits a constitutional holding state action that priva restricted the privacy right cy is limited to of minors: adults and juveniles "While ... have cer minors, does not extend to supe- whereas the rights tain express and to their rior approach court's posits that ex- autonomy, own recognized State, eg., 56. See, Bellotti v. Baird, (Alaska 645 P.2d 443 U.S. 622, 99 1231 n. 4 App. S.Ct. Bellotti, 61 LEd.2d 797 1982) (determining that searches conducted the Court identified three supporting reasons school during officials school hours on school conclusion that the rights of chil- grounds governed by particular constitu dren in the abortion context equated cannot be safeguards). tional with those of peculiar adults: "the vulnerability of children; to make critical inability deci- Smith, 58. (Alaska Breese v. 501 P.2d sions in an informed, mature manner; and the importance role in rearing." child Id. at 99 S.Ct. (plurality opinion}. Id. at 168. See, D.D.S., eg., In re I, See 1994) § Alaska Const. art. (determining that evidentiary privilege protecting alcohol treatment records apply does not in CINA proceedings); Breese, M.O.W. v. 61. 501 P.2d at 170-75.

40 well-being "peo in the of its chil stitution attaches to different

State's interest classes of ple." "uniquely personal" physical, psy 'may justify legislation that could not dren " 62 properly applied to adults." be chological, implications and economic of the Valley abortion decision that in we described Notably, supreme courts three other way peculiar Hospital68 are to adult explicitly guaran states whose constitutions Deciding women. whether to terminate California, privacy-New Jersey, tee difficult, pregnancy is at least as and the approach Florida-have followed the same consequences of such decisions are at least as considering challenges to stat profound, for minors as adults: requiring parental utes consent or potentially facing [TJhe severe detriment authorization to obtain an abortion. These mitigated by woman is not her courts have read their state constitutions to Indeed, minority. considering proba her give right minors the same fundamental to education, skills, employment ble financial reproductive privacy as adults and have then resources, maturity, and emotional un inquired government whether had com exceptionally wanted motherhood be pelling privacy reason to restrict minors' burdensome for a [TJhere minor.... rights.63 denying few situations in which a minor distinguish The state asks us to these important to make decision cases, noting guar that Florida's constitution consequences grave will have so and indeli- 69 64 privacy "every person" antees natural 65 "(alll people," and California's to whereas recognize thus find We no less reason to here simply Alaska's constitution extends settings than in other that "[clonstitutional ° people.66 to "the But the state offers rights being do not mature and come into interpreting no basis for our constitution's magically only when one attains the state- guarantee privacy people" of to "the as a 70 age majority." defined of grant only people," "peo to "some Of course this does not mean that evidence 67 ple years age seventeen or older." And "peculiar vulnerability of children absent textual or contextual of a indications inability [and] make critical decisions meaning, restricted we see no reason to find 71 informed, in an mature manner" has no grant privacy our constitution's to "the place in determining people" grant narrower than California's authorization act is consti people." "[alll contrary, long tutional. To the we have em subject Nor does the phasized matter at issue special pro state's privacy rights here-the tecting of minors with re the health and welfare of children. spect reproductive any not, choice-afford doing, exempted basis Yet we have in so mi restricting the manner in con protection.72 which our nors from constitutional Evi State, 351, (Alaska NJ., 62. Anderson v. 562 P.2d 358 67. Planned Parenthood Central 762 Cf. 1977) (internal omitted) ("those (quoting rights citation belong equally Ravin A2d at 626 State, 494, (Alaska 1975) minors"). 537 P.2d 511 n. 69 adults and to ("'We government note that distinct interests with may justify legislation reference to children 963, (Alaska 1997). 68. 948 P.2d 968 adults."). properly applied could not be Baird, 69. Belloiti v. 443 U.S. 622, 642, 99 S.Ct. Academy 63. See American 3035, Pediatrics v. Lun- (1979) (citation omitted). 61 LEd.2d 797 307, 210, gren, CalRpir.2d 16 Cal.4th (1997); 797, 814-16, P.2d In re TW., 551 70. Planned Parenthood Centrаl Mo. v. Dan- 1186, (Fla.1989); So.2d Planned Parent- 52, 428 U.S. 74, 2831, 96 S.Ct. 49 LEd.2d forth, Farmer, 609, hood Central N.J. v. 165 NJ. (1976), part by overruled in Planned Parent- (2000). A.2d 620, 626, 631-39 Casey, hood Southeastern Pa. v. 505 U.S. 112 S.Ct. 120 L.Ed.2d 674 64. T.W., Imre 551 $o.2d at 1193. Bellotti, 443 U.S. at 99 S.Ct. 3035. Pediatrics, Academy 65. American 66 Cal. Rptr.2d 940 P.2d at 814. eg., See, State, Anderson v. 1977) ("Assuming juveniles I, rights § privacy, See Alaska Const. art. certain to sexual we nevertheless tending dence to pregnant show that minors restrictive means exist to advance that interes are vulnerable has no bearing direct on t.74 "people" minors are in the constitu tional sense: E. Equal Protection [A] statute's relationship to prop 1. presented The issue

erly employed in the constitutional cal culus determining whether an asserted already As mentioned, the superior purpose state or interest is "compelling." stopped court short of considering whether Because the impact statute's on minors is the by interests claimed the state justify to taken into account in assessing impor the parental consent or authorization tance of state ostensibly interest requirement-protecting minors, families, served infringement ... it is not parental and rights-were sufficiently com appropriate additionally to lower appli pelling justify to the act's restrictions on the cable constitutional standard under which privacy rights of minors. The court found no the statute is to be evaluated simply be need to decide this issue because it concluded cause privacy interests at stake are that summary judgment appropriate those ofminors." 73 ground alternative the act violated the Alaska guarantee Constitution's equal justify To ju consent or protection.75 Thus, purposes equal its dicial authorization act's restriction of a mi protection analysis, the court effectively as right nor's to then, terminate a pregnancy, sumed that the state does have a compelling the state must establish a compelling interest governmental interest in requiring pregnant in restricting the right minor's privacy; it minors to obtain consent or may not simply assert that Alaska's constitu authorization for an abortion. The pre issue tion extends a diluted privacy form of right- sented for consideration, our then, is wheth right or no at all-to minors. er, despite this assumed compelling govern interest, mental equal protection bars the Accordingly, we hold that superior state from enforcing correctly decided to build privacy requirements act's be analysis Judicial premise on the that minors and cause impermissibly among discriminate adults start from the same constitutional different classes of similarly situated min footing. It likewise correctly decided that ors.76 the state can constrain a minor's privacy right only necessary when to further a com

pelling state if no less equal Alaska's protection standard may conclude that the State exercise control over (1981) (Marshall, S.Ct. 67 L.Ed.2d 388 the sexual conduct beyond J., of children scope dissenting) ("Although may seem that the authority of its adults."); to control Ravin v. privacy right minor's is somehow less fundamen- State, (Alaska 1975) P.2d 511 & n. 69 may tal because it 'significant be overcome (recognizing that "[the state legitimate interest," has a the more sensible view is that state avoiding concern with spread marijuana inapplicable interests may justify adults bur- use to adolescents equipped who not be with dening right."). the minor's maturity experience handle prudent- ly," clarifying that we "do not intend Valley Hosp. See Ass'n v. Mat-Su Coalition for imply that the in the home does Choice, 948 P.2d4 963, 969 apply children"); Statе, Doe v. (Alaska 1971) ("A child I, ... should have 75. Article section 1 of the Alaska Constitution pre-adjudication less freedom provides, than an part, in relevant persons "that all adult criminal pending defendant has trial. equal On equal rights, entitled opportunities,

the other hand, protection a child is in need of under the law." some care supervision."). Although court viewed the act as Academy American Lungren, Pediatrics v. distinguishing one between minors who Cal.4th choose to abort and 210, 940 Cal.Rptr.2d P.2d give minors who choose to (1997) (emphasis omitted); birth, accord In re point as we out in our discussion of the T.W., (Fla.1989) 551 $o.2d 1186, (quot- 1195 n. 8 ruling, court's a broader view the act seems ing HL. v. Matheson, more accurate. 450 U.S. 398, 441 n. 32, Erickson,77 adopted we State steps equal protection analysis two of the equal protection as a measure of Alaska's essentially steps identical to the two of the flexible, three-step sliding-scale a right privacy analysis." Re- test, initially test.78 establish Under ferring privacy, to its earlier discussion of right allegedly infringed by the nature of the right found that "the involved is the funda- action, increasing state the state's burden to privacy." say mental It went on justify grows the action as the it affects question compelling of "[the state inter- at low more fundamental: of the supporting legislation est has also been end sliding scale the state needs to show examined." The court thus concluded that legitimate purpose; that it has a but at the rights equal difference between the "Tthe high directly infringes its action end-when protection rights and resides in right-the prove fundamental state must prong equal protection the third of the test." © compelling governmental interest.79 We Turning step equal to the third of the importance next examine the of the state protection analysis, initially the court ob purpose challenged served action parental served that consent or order to determine whether it meets the requisite standard.80 categories last authorization act creates two We consider similarly pregnant situated minors: "those particular means that the state selects to who elect to have purpose; showing further its abortions" and "those who substantial carry Next, relationship elect to between means and ends will fetus term." scale, pointed suffice at the low end applies only of the but at the court out that the act high minors, end the category state must demonstrate that no exempting the first briefly second.82 The court then less restrictive alternative exists to accom reviewed plish purpose.81 its parental purpose findings act's statement of and equal protection

3. The trial court's fact. This review led the court to find ruling "[njone legislative of the enunciated interests findings began equal show that the protec- different treatment analysis by briefly reviewing tion this three- two classes created the Act relates compelling governmental objective." to a step test. The court "[the noted first (Alaska 1978). (3) 77. 574 protecting rights parents P.2d 1 to rear children who are members of their house- Id. at 12. hold; and (4) protecting the health of minor women. (b) legislature finds that State v. 1184, 1192-93 Ostrosky, (Alaska 1983). (1) ability immature minors often lack the fully make informed choices take ac- 80. See id. at 1193. long-range count both immediate and consequences; Brown, (2) emotional, 81. See Alaska Pac. physical, Assurance Co. v. psychological (Alaska 1984); Ostrosky, P.2d 269-70 consequences of abortion are serious and P.2d at 1193. lasting particularly patient can be when the immature; , 25.20.025(4). (allowing 82. See AS (3) to ob- minors capacity to become and the tain certain medical services without capacity judgment concerning for mature consent). the wisdom of an abortion are not neces- related,; sarily legislature following 83. The made the statement (4) parents ordinarily possess information es- purpose findings support of fact in of S.B. physician's surgeon's sential to a best 24: child; judgment concerning medical (5) parents PURPOSE; who are aware that their minor (a) Section 1. FINDINGS. It is daughter has had an abortion better legislature enacting the intent of the this Act daughter adequate ensure that the receives important compelling to further the abortion; medical attention after the interests of (6) (1) protecting usually against consultation is desirable their own imma- minor; turity; and in the best interest of the (2) fostering family preserv- legislation structure and involvement enacted in unit; it as a viable social significant other states has shown to have a Citing recent Florida and California decisions sent to a range broad of medical services and conclusions,84 that reached similar the court treatments associated with sexual activity ex declared that the act equal protec violates cept abortion, including "diagnosis, preven tion because "no compelling state interest tion or treatment of pregnancy, and ... diag has been established nosis and treatment of venereal disease." justify the classifica tion of upon minors based reproductive Moreover, may act create additional de choices." constitutionally facto classifications prove that would signif view, In our all these icant.86

4. Discussion differences fall within the equal ambit of the protection question raised in this case and superior court viewed the act as creat deserve serutiny. careful ing two similarly situated pregnant classes:

minors who choose to abort and those who In challenging court's ruling, give choose to birth. But a broader view of the state contends that the court overlooked equal protection issue would seem more abundant evidence of potentially compelling appropriate. express The act's terms create state interests in requiring parental consent potentially several significant classes of judicial simi or authorization to abortion. Em larly situated example, minors. For while phasizing AS that it prepared prove 18.16.010(a2)8) requires parental consent or the act serves interests, these the state com judicial authorization plains that given to be any the court refused to hear its "unmarried, unemancipated woman under 17 evidence. points The state out supe that the years age" who chooses to preg abort a rior summary court's judgment ruling should nancy, 25.20.025(a)(1) AS generally autho have drawn all inferences in favor of the non- rizes all minors who live on their own- moving party-the state.87 According to the regardless whether are formally state, the failure requires to do so a reversal. emaneipated-to any consent to form of agree med We that it was error to declare S.B. 24 ical or dental treatment except abortion.85 unconstitutional without allowing an eviden- 25.20.025(a)(4) And AS gives all minors- tiary hearing on the issue of whether the act even those who are unemanciрated living compelling furthers state using interests parent with a or guardian-authority least restrictive means.88 to con abortion, reducing birth, effect in preg- parent guardian or family and the ‍‌​‌‌​​​‌‌​‌‌​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​‌‌‌​​‌​‍unit as nancy among rates minors. provider them; presumes best the 1,§ Ch. (3) SLA 1997. parent minor who is the may of a child give consent to medical and dental services for 84. See Academy child; American the minor or Pediatrics v. Lun- gren, (4) 16 Cal4th Cal.Rptr.2d give minor diagnosis, consent for (1997); TW., prevention P.2d 797 In re or pregnancy, treatment of So.2d and for (Fla.1989). diagnosis disease; and treatment of venereal (5) parent guardian or of the minor is obligation relieved of all financial provider to the 25.20.025(a) provides: AS of the service under this section. (a) Except prohibited under AS 86. For Planned Parenthood example, contends 18.16.010(a)(3), that the act's (1) a living apart minor who is from the mi- functionally geographical create classifica- parents nor's legal guardian or and who is man- by imposing tions insurmountable burdens on aging affairs, the minor's own regard- financial pregnant minors who live in remote areas of the less of the source or give extent of income, may readily lack accessible consent for medical and dental services for the legal services. It also contends that the act im- minor; permissibly distinguishes between minors who may give a minor consent for medical and years age seventeen and those who are dental parent services if legal guardian younger and between minors who are married or the minor cannot be contacted or, if contacted, is emancipated and those who are not. unwilling grant consent; either to or withhold however, parent legal where the guardian eg., Magill, See, Newton 872 P.2d 1213, or, contacted, cannot be contacted if unwilling (Alaska 1994). grant consent, either to or to withhold pro- vider of medical or dental services shall counsel alternatively The state argues keeping the minor in mind not the valid minors who choose abortion and those who interests of the minor but also the valid give interests choose similarly birth are not situated.

Although disputed ruling equal pro- tiny indicated, important govern less question "[the tection observed that of com- objectives mental greater will suffice and a pelling supporting legisla- state interest degree of underinelusiveness in the over/or already tion been examined" hald] fit means-to-ends will be tolerated. As a analysis privacy, court's of the minimum, require legislation earlier discussion of had not resolved legitimate be public purpose based on a issue; concluding privacy analysis, this reasonable, and that the classification "be stated, simply the court had "I need not arbitrary, upon ... rest some question reach the the State has ground having of difference a fair and sufficiently question shown that a of fact substantial object relation to the exists as to whether the state had shown a legislation. . . ." compelling enacting legisla- equal protection tion." The court's decision clear, passage As this makes entirely step thus rested on the third steps sliding-scale three equal Alaska's equal protection analysis and never deter- protection progressive. test are The second actually mined whether the state does have a step depending varies on the outcome of the compelling requiring parental interest con- hinges first. And the third on the nature of judicial or sent authorization to abortion or second; second-stage analysis as the re what the exact nature of that is. quires governmental "the asserted interests approach But problematic, since Alas- relatively [to] be compelling," leg more "the equal protection inseparably ka's test of links islation's means-to-ends fit" must "be corre step equal protection analysis the third spondingly step closer" in the third of the (here, compelling whether the state had rea- analysis.91 require parental sons to judicial consent or group authorization for one present case, of minors but not In court another) (the step to the second nature and second-step inquiry. undertook no But if the importance of the in requiring state's interest inquired actually court had and had identified judicial consent or authorization to compelling governmental requir interests abortion). ing parental authorization, judicial consent or step analysis then the third In of the Ostrosky,89 State v. we described the required inquire the court to further relationship between the second and third order to steps determine whether the equal protection of Alaska's con test as sent or follows: authorization act achieved those interests means the least restrictive serutiny As the level of higher selected is alt ernative.92 Other courts have identi scale, on the require Erickson we that the plausible, facially legitimate fied governmental grounds asserted interests be rela tively compelling treating pregnant legisla carry more and that the minors who tion's correspondingly means-to-ends fit be differently children to birth from those who hand, choose abortion.93 And at least some of the closеr. On other if relaxed seru- added). Since we necessary conclude that a (emphasis remand is Id. compelling the issues of state interest and least alternative, restrictive we need not address this eg., 92. See, Gilbert v. State, 526 P.2d 1131, 1134- argument here. We note, inquiry If the court's however, had question pregnant whether these two subsets of interests, compelling governmental revealed no similarly readily minors are situated not course, then the court would have needed to disposition lend itself to aas matter of law. go compelling no further: the lack of a view, question may require our the resolution interest would have doomed the act under either disputed Accordingly, par- issues of fact. privacy equal protection analyses. ties should be allowed to address this issue at the evidentiary hearing on remand. See, Mass., eg., League Planned Parenthood General, Attorney Inc. v. 424 Mass. (Alaska 1983). 89. 667 P.2d 1184 ('The N.E.2d 106 n. 10 differences between an adult a minor; between married, widowed, (quoting Rickey, Id. at 1193 pregnant Isakson v. or divorced minors and an (Alaska 1976) (other P.2d citations unmarried minor; and between omitted)). special applicable considerations to an abortion legislative findings made in support of Alas ka's act will actually not accomplish these ka's purposes or will not using do so the least appear act to relate specifically restrictive means.97 Alternatively, close more to a capacity minor's to make the choice of abor scrutiny of the might evidence lead the court tion than do to the ability minor's to conclude that the state's differential treat types make other of medical decisions.94 ment of minors reflects nothing more than a discriminаtory attempt intent-an "chip express We opinion here as likely to the away at private choice shielded force Roe v. significance of the proffered state's Wade." evidence. Given the fundamentality of the and the nature of just the statu But as we acknowledge possibili these tory issue, classification at certainly ties, rec we must also acknowledge that the state ognize presented that evidence in support of and amici curiae have potentially offered challenged act "deserving evidence, most compelling yet heard, of other exacting serutiny."95 A giving close possible outcomes. At summary judg serutiny to the issue of compelling state in stage, ment evidence, all of this and all rea might terest view legislature's willing arising sonable inferences it, should ness to allow minors to consent on their own have been light viewed in the most favorable to most reproduction-related forms of medi to the state.99 This was not the adopted view cal treatment as evidence below, the state's analysis where the of means-to-ends comp ostensible interests are not particularly fit was limited parental to the consent or elling.96 Moreover, if even the state's inter judicial authorization expressed act's legisla actually ests were compelling, evidence con tive purposes findings. and Other evidence cerning experiences with provisions consent proffered by the state apparently was not in jurisdictions, other including information considered. And most significantly, as al about the by difficulties faced minors-par noted, ready there was no determination con ticularly in rural areas-in gaining cerning the importance nature and access to judicial courts and the bypass pro state's interest in requiring parental consent cedure, might convince the court that or authorization.100 Alas opposed as to some other pro- act, intrusive medical may give a "minor consent for justify special cedure the treatment diagnosis, [the prevention stat- pregnancy, treatment of ute] accords to pregnant an unmarried minor diagnosis and for and treatment of venereal dis- ease"); who seeks to terminate 25.20.025(a)(1) pregnancy."); her AS see (allowing indepen- also, e.g., Academy American Pediatrics v. Lun- give dent minors to consent of for all medical ser- gren, 16 Cal.Rptr.2d Cal.4th 66 940 abortion). vices except (Mosk, J., ([The P.2d dissenting) 865 legis- reasonably, lature] could neutrally, and deter- 97. Planned Parenthood Central NJ., 762 Cf. mine, policy, as a matter of that in the case of an ("The A.2d at 638 presented plain- evidence unemancipated minor who is and in- tiffs' inexorably certifications leads to the conclu- tends to bear a public child the health interest in proffered sion that statutory the reasons for re- allowing her to obtain medical care for herself quiring parental notification are not furthered overriding, regardless her fetus is parental statute."). the approval and whether unemancipated or not the mature."). minor is Carhart, Stenberg 914, 952, 98. 530 U.S. S.Ct. 2597, 147 L.Ed.2d (Ginsburg, J., See,eg., 1(b)(2),(7), 94. § Ch. 14 SLA1997. State, concurring); Revenue, Dep't Perma- of. nent Fund Dividend Div. v. Costo, 858 P.2d 621, Farmer, 95. Planned Parenthood Central N.J. v. (Alaska 1993). 165 N.J. 609, 762 A.2d 620, 633 Pediatrics, Magill, See Academy American Newton v. 66 Cal. Cf. (Alaska Rpir.2d (existence 940 P.2d at of nu- allowing merous statutes minors to obtain medi- parental cal care without consent Notably, is "fundamen- none supreme of the three state tally inconsistent" with contention that statute court cases that provisions have invalidated simi- requiring a minor's consent to abortion lar to Alaska's has declined to decide whether the necessary protect 'is the health of such minor compelling state had a justified interest that bur- support parent-child or to the relationship"); dening see rights the of a minor. In Ameri- 25.20.025(a)(4) Pediatrics, also AS Academy (except can Supreme as access to abor- Court of tion is limited California struck down a similar with- remand, questions. On hearing constitutional Need in accordance balance apply this court should to resolve invite us nevertheless Plaintiffs opinion after expressed in the views with on of law matters issues disputed pres opportunity allowing parties superior conclude if we even appeal, posit respective their supporting evidence ent equal protection incorrectly applied ions.103 invitation, plain advancing this analysis. In deference owe no we emphasize tiffs CONCLUSION IV. infringement of "when judgments legislative part, part, REVERSE AFFIRM We legislative from right results hearing to evidentiary for an and REMAND action." consent determine body con large parties offer But the actually act judicial authorization furthers it scientific flicting evidence-much using least re- interests compelling it controversial-whose technical, some means. strictive are significance reliability, meaning, importance of Given strongly disputed. Justice, whom MATTHEWS, with Chief stake, are reluctant at the interests Justice, dissenting. CARPENETI, joins, this evidence quality of judgment pass long con been freedoms Children's implications or its substantive permissi not be ways strained process.102 full adversarial of a benеfits on children adults. Constraints ble conflicting positions as judgment, our them, and some protect imposed in order close, signifi too too case are in this serted whole, the conse society as a times factual in unresolved cant, too ensnarled immaturity. Thus children quences of adjudication. summary permit disputes right to the fundamental exercise difficult defined court has may make con not They generally vote. disputed the frames of interests balance by- application of issue, and the development, equal protection deciding the squarely out Cal.Rptr.2d states." procedures in other pass grounds to conclude privacy solely relying on "adequate at 828. testimony-un- P.2d provide 210, 940 failed had the state subjects, range of a wide available here-covered preg- on a intrusion statute's justification for the psychologi- and "including relative medical Califor- privacy under the right to the minor's nant by abortion posed cal risks Cal.Rptr.2d nia Constitution." childbirth, maturity of minors general the and NJ., Central Parenthood 831. In Planned at of abortion, guidelines and existing seeking the So.2d TW., 551 and re 631-39, In A.2d at counseling provided to the practices regard with (Fla.1989), Supreme of Court the 1192-93 abortion, general effi- seeking and the to minors Florida struck Supreme Court of Jersey and New thereof) pro- judicial bypass (or the cacy of lack protection, equal grounds of on statutes similar at 806. jurisdictions." Id. in other cess initially determined only each court after NJ., trial or Central Planned Parenthood of preg- rights of violated the statutes par- "the evidentiary hearing held because compel- minors, a lacked the states because nant 'sole- be heard matter should agreed that the ties rеquire consent. ling at 762 A.2d ly and certifications.'" briefs heavily evidence on the The court relied Coalition Valley Hosp. v. Mat-Su Ass'n for id. at 632-38. See certification. submitted (Alaska P.2d Choice, 948 contrast, stipulate to Here, parties not did to consider body for the court evidence a of Smith, although P.2d 159 deciding presented. And In Breese issues evidently decide simi- involving con- did Supreme Court 1972), Florida cases a trend in we noted and the codes an extensive appearance T.W. without school in In re lar issues flicts between record, seemingly con- had little rejecting mere court evidentiary of rights of students personal matter, appeal requiring the Florida since and justifications for the codes choice in jectural deny- decision by appeal a trial forms or other arose empirical studies instead " waiver of petition for We also note a minor's & 57. at 172 n. Id. 'hard facts'" at 1189. So.2d See 551 American consent. California Supreme Court of ruling that a Academy based its Pediatrics that, conducting the evi- emphasize a violated minor's We statute parental consent remand, superior court "overwhelming dentiary hearing on privacy on right to admis- to determine latitude have broad will including testi- trial, at introduced evidence" on these scope that bears sibility of evidence training and and "with mony expert witnesses care, questions. difficult adolescent of health experience in the fields regulation on a woman's decision to have cigarettes or drink alcoholic tracts or smoke an abortion. Justice Blackmun wrote: beverages consent to sexual intercourse. they may parent's a consent

Without Despite apparently the fact that no oth- get married or become licensed drivers statute, exceptions er Missouri with the general or dental treatment. obtain medical 6, supra, requires to in a referred note parental consent/judicial bypass act Alaska's patient's prior surgical written consent to a in the of these constraints on is tradition 8(2) by § procedure, imposition of such requires freedoms. It unemanci- children's requirement pregnan- for termination of years age younger pated girls sixteens view, cy during stage, in even the first our want to have an abortion to either obtain who require- is not in itself an unconstitutional parent, approval the consent of a or the abort, indeed, ment. The decision to is an designed judge. The act is to ensure one, important, and often a stressful and it each child makes a decision that is best for imperative that is desirable and it be made compelling her. As such it serves a interest. knowledge with full of its nature and con- It essential that abortion decisions made sequences. primari- The woman one fully by young girls be well considered and concerned, ly and her awareness of the informed, pro such decisions for significance may decision be as- consequences. I long-lasting found sured, constitutionally, by the State to the believe that the act is constitutional therefore requiring prior extent of her written con- superi- the decision of the reverse sent. evidentia-ry requiring further or court without pr oceedings.1 say We could not that a

imposed by prior that a written State any surgery consent for would be unconsti I. consequence, tutional. As a we see no requiring constitutional defect for parental consent/judicial bypass Our act is as, types surgery exаmple, some product Supreme series Court procedure, intra-cardiac or where the sur opinions A re decided after Roe v. Wade.2 gical specific risk is elevated above a mor opinions light view of these casts on the level, or, matter, tality for that abort act, reasons for the and the interests it is ions.4! designed protect. aspect Another of the Missouri abortion starting point The is Planned Parenthood required statute under review was that it Missouri v. Under Central Danforth3 of age any girl that unmarried under the in

review was a Missouri statute Danforth eighteen par of a obtain the written consent variety regulated abortions in a which the abortion was ent to an abortion unless ways. part required a One statute girl. necessary preserve the life of the certify "that her in woman consent provi majority held that this freely given not the formed and is result Danforth concluding in sion was unconstitutional.5 But prior submitting of coercion" to an abor sufficiently majority opinion, au that there was no state interest tion. The Danforth Blackmun, strong justify imposing pa in all a by held that cases thored Justice recognized aspect power, of the de rental veto the Court also statute was constitutional part spite argument an it for effective consent on the violated Roe need girl. by imposing layer an extra Wade burden Although disagree by 3. 428 U.S. 96 S.Ct. 49 LEd.2d 788 I with result reached majority opinion, join opinion (1976). in the I insofar rejects argument that the consti- state's operative tutional has no effect 66-67, Id. at 96 S.Ct. 2831. by implemented legisla- unless and until it is ture. S.Ct. 5. See id. at LEd.2d

2. 410 U.S. 93 S.Ct. emphasize holding greater inability give We our risks an in 8(4) § suggest invalid does not ev holding formed consent. Without that a ery minor, regardless hearing age maturity, of а court or would not unduly rights may give burden the of a mature effective consent termination Baird, pregnancy. of her See Bellotti v. adult, ... we think it clear that in the 8(4) § imposes ... The fault with is that it litigation adoption instant appellants' in special-consent provision, by exercisable terpretation materially would "at least person other than the woman and her change the problem" nature of the physician, prerequisite as a to a minor's appellants presented.10 claimis pregnancy termination of her and does so Although Bellotti was a unanimous deci- justification without a sufficient for the sion, justices was not. Four other restriction.6 Danforth joined in majority Justice opinion Blackmun's Bellotti v. Baird was decided on the same part. and four dissented in Justice Stewart day as Bellotti involved an am Danforth.7 joined in opinion Justice Blackmun's but he biguous Massachusetts statute. The defend separate concurring opinion wrote which argued of the ers statute that it joined Justice Powell. Justice prefers consent, parental consultation and concurring opinion Stewart's further devel- permits ... capable but a mature minor oped the statement in Justice Blackmun's obtain, giving informed consent to opinion regardless that not all age minors burden, permitting undue an order maturity necessarily could consent to an consultation, abortion without suggested abortion. Justice Stewart that a and, further, permits incapa even a minor provides statute which for either giving ble of informed consent to obtain judicial consent authorization would be order without consultation where constitutional. He wrote: showing there ais that the abortion would be in her best interests.8 respect requirе With to the state law's parental consent, 8(4), § ment of I think it fundamentally Such a statute would be dif primary clear that its constitutional defi- ferent from a pa statute that authorized a clency imposition applicable lies of an regard rental veto to all absolute limitation maturity. on the minor's challengers less of their to obtain an statute, however, abortion. The argued opinion today Court's that the statute gave parents right9 suggests materially Bellotti v. Baird a veto A that a unanimous pre Court held that the lower different constitutional federal issue would be deciding should have requiring paren abstained from sented under a case pending Supreme a decision Court of tal consent or consultation most cases meaning providing Massachusetts as to the prompt stat resolu ute. The Court stated: any disagreement tion of par between the (i) minor, In Planned Parenthood Central Mis ent and the determi enough nation that the minor is Danforth, today

souri v. mature struck down a give an informed parental statute that a consent without created veto. At time, however, concurrence any the same or that abortion in we held that a event is in the minor's best interest. Such a requirement part of written consent on the pregnant of a impose parental adult is not would not ap unconstitutional unduly proval unless it right upon burdens the as an absolute to seek condition case, abortion. In this we are con minor's but would assure in most cerned with a statute directed toward mi instances parent consultation between the nors, as and child.1 unquestionably to whom there are (citations omitted). 145-46, Id. at 96 S.Ct. 2831 9. See id. at 96 S.Ct. 2857.

7. 428 U.S. 96 S.Ct. 49 LEd.2d ‍‌​‌‌​​​‌‌​‌‌​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​‌‌‌​​‌​‍844 (citations omitted). Id. at 96 S.Ct. 2857 Id. at 96 S.Ct. 2857. There can be little doubt that the State constitutionally furthers a permissible end recognizes Court may the State by encouraging an unmarried mi- insist that the decision not be made with- nor to help seek the and advice of her out the benefit of medical advice. But parents in making very important deci- since significant the most consequences of sion whether or not to bear a child. That the decision are character, not medical in grave decision, is a and a girl of tender would seem to me that may, the State with

years, stress, under may emotional ill- be equal legitimacy, insist that the decision be equipped to make it without mature advice made after appropriate other counsel support. emotional It unlikely seems has been had as well. Whatever choice a that she will adequate obtain counsel and pregnant young woman marry, makes-to support from attending physician at an abort, to bear her child out of wedlock- clinic, abortion where preg- abortions for consequences of her may decision nant minors frequently place. take profound a impact on her entire future life. legislative A determination such a For some of the support considerations choice will be wisely made more in most the State's sent, encouraging parental interest in con opinion Stevens, see the of Mr. Justice cases if the advice and support moral of a concurring part Post, dissenting part. parent play part in the decisionmaking at 2856-57. process surely Moreover, not irrational. partial Justice Stevens's dissent in Dan- perfectly it is clear parental-con- contains a explanation useful of the forth sent requirement necessarily will involve a may restraints that the impose on chil- parent in process. the decisional dren and importance of the in- volvement in abortion decisions. Justice Ste- The State's interest dependent

vens is not wrote: on an estimate impact of the paren- The State's interest in the welfare of its tal-consent may have on the young justifies citizens variety protec- total number of may abortions that take tive measures. may Because he not fore- place. I parents assume that will some- see consequences decision, of his prevent times abortions might which bet- may minor not make an enforceable bar- performed; ter be parents may other gain. may lawfully He not work or travel advise abortions that per- should not be pleases, where he or even attend exhibi- Similarly, formed. even doctors are not tions of constitutionally protected adult omniscient; specialists performing pictures. motion Persons below a certain may abortions incorrectly conclude that age marry con- advantages immediate proce- Indeed, sent. such consent is essential outweigh dure the disadvantages which a even when young already woman is parent could evaluate in perspec- better pregnant. The protect- State's tive. In each individual case factors ing a young person from justifies harm profound much more than a mere medi- imposition of restraints on his or her free- judgment may cal weigh heavily in the though dom even comparable restraints on scales. overriding consideration is an adult would be constitutionally imper- to make the choice be ex- Therefore, missible. holding in Roe v. wisely ercised as possible. Wade that the abortion deсision is entitled protection merely empha- The Court parental assumes that con importance sizes the decision; it sent appropriate is an requirement if does not lead to the conclusion that capable minor is not understanding legislature state power has no procedure enact and appreciating its conse legislation purpose for the of protecting quences a and those of available alternatives. young pregnant woman from the is, conse- assumption course, This correct and quences of an incorrect decision. consistent with predicate which under Danforth, 90-91, 11. 428 U.S. at 96 S.Ct. 2831. We therefore conclude that if the State legislation seeking protect lies all consequences minors from the of decisions require pregnant decides to minor to yet prepared are not to make.12 parents' obtain one or both consent to an abortion, provide it also must an alterna- years after the decisions in Dan- Three procedure whereby tive Bellotti Bellotticase returned authorization for

forth the abortion can be obtained. Supreme to the Court.13 The Massachusetts Supreme Court had construed the statute to pregnant A minor is entitled in such a require abortion, parental consent an but (1) proceeding to show either: that she is parents refused, if both a court could autho enough enough mature and well informed good rize an abortion for cause. A minor decision, to make her abortion in consulta seeking an abortion could not seek court physician, tion with independently her authorization without notice of the (2) parents' wishes; her that even if she proceedings pаrents. Further, to her if even indepen not able to make this decision capable the court found the making minor dently, the desired abortion would be in an informed and reasonable decision the her best proceeding interests. The in court could refuse to authorize abortion showing which this is made must assure upon finding parent's that a or the court's issue, that a any resolution of the contrary preferable.14 own decision would be appeals follow, completed will be Supreme Court of the United States anonymity with expedition and sufficient found this statute to be defective two provide an opportunity effective for an (1) respects: permitted judicial it authoriza sum, abortion to pro be obtained. tion "to be withheld from a minor who is cedure must ensure that the re by found court to be mature and quiring parental consent does not in fact independently"; fully competent to make this decision "absolute, amount to the possibly arbi "requires parental 15 trary, veto" that impermissible was found consultation every instance, or notification in in Danforth.18 affording op minor an justices Four other concurred in the result in portunity independent to receive an exception Bellotti but took "advisory to the determination that enough she is mature opinion" aspects opinion.19 of Justice Powell's consent or that an abortion would be in her best interests."1 years Four after the second Bellotti deci sion, approved parental Court con opinion The lead in the second Belloifi sent/judicial bypass statute Planned by Powell, case joined was authored Justice by Parenthood justices. City, three Association Kansas opinion other relied Missouri, Inc. v. Justice Pоwell expanded on and involvement Ashcroft.20 expressed by rationale Justice Stewart in his opinion wrote joined the lead which concurrence.17 Justice Powell also Burger Chief Justice and concurred in Danforth described in some detail O'Connor, elements of a as to the result Justices Rehnquist.21 parental consent/judicial bypass statute that White and Justice Powell pass stated based on the opinion: second Belloiti constitutional muster: 102-104, 12. Id. at 96 S.Ct. 2831. 19. See id. at 652-53, 3035, 99 S.Ct. Stevens, J., concurring judgment. justice, in the The ninth Baird, 622, 13. Bellotti v. 443 U.S. 99 S.Ct. White, dissented, doing Justice so ex- (1979). 61 L.Ed.2d 797 pressed approval his of a blanket con- sent and Massachusetts' 14. id. See 99 S.Ct. 3035. at consent/judicial bypass system. See id. at 656- Id. at 99 S.Ct. 99 S.Ct. 3035. Id. 476, 493, 20. 462 U.S. 103 S.Ct. 76 LEd.2d 633-41, 17. See id. at 99 S.Ct. 3035. (footnotes 643-44, Id. at 99 S.Ct. 3035 omit- 477-78, 505-06, 21. See id. at 103 S.Ct. 2517. ted).

51 A State's interest in protecting bypass immature dicial system encompassed in AS minors will requirement sustain a of a 18.16.020 and part .080 is of this movement. substitute, consent parental either judi or applies It to unmarried years minors sixteen clear, however, cial. It is that "the State age younger. Such a may minor not provide must procedure alternative obtain an abortion parents unless one of her whereby minor demon consents or unless a court authorizes her to strate that sufficiently she is mature to consent without the parent. consent of a make the abortion that, decision herself or All the criteria established Bellott are despite her immaturity, an abortion would satisfied provisions. Alaska If the 22] inbe her best interests." minor judge satisfies the that she is "suffi Again in Planned Parenthood v. Casey ciently mature and well enough informed to Supreme approved Court parental of a decide intelligently whether to have an abor consent/judicial bypass Currently statute.23 tion" the court must issue an order authoriz appears that all of the members of the ing her to consent to an abortion without a United Supreme States Court believe that a parent's concurrence.27 Even lacking such procedure that meets maturity, the court must authorize the minor the conditions of the second Bellotti case is to consent on her own where "the consent of constitutional. The Court's most recent ex parent[ ]" "is not in [her] best interest." 8 pression subject views on appears in 2 Examples such physical, sexual, Lambert v. Wicklund.24 There the Court or emotional given abuse are as instances unanimously upheld a Montana act which parental where consent is not in the minor's called parental for subject notification ju interest, best these are bypass if, dicial among things, other "the possible reasons for finding. such a minor 'sufficiently mature to decide proceedings anonymous.29 are And " 25 whether to have an abortion.' expedited. hearing place must take within forty-eight hours of filing IL petition and the court must make a decision

Following the criteria established in the immediately after hearing.30 If no hear second Bellotti forty-two case states is held days within five petition after the enacted parental either parental consent filed, a constructive order authorizing the notification provisions statutes with minor to consent to an abortion must issue.31 for a bypa Alaska's consent/ju Moreover, ss.26 standard forms petition for the 491-92, Id. at 103 S.Ct. (quoting City 2517 subject judicial bypass to a in order to be consti- Akron v. Reproductive Health, Akron Center dispute tutional. But this did not have to be Inc., 462 U.S. 416, 439, 103 S.Ct. 2481, 76 resolved in upon Lambert nor in the case which (1983)). relied, L.Ed.2d 687 principally Lambert Ohio v. Akron Center Health, 497 Reproductive 502, U.S. 110 S.Ct. 833, 899, 23. 505 2791, 2972, U.S. 112 S.Ct (1990), 120 111 LEd.2d 405 because the Court LEd.2d (joint bypass provisions found that satisfied the opinion Justices Souter); O'Connor, criteria established in the second Bellotti case. id. Kennedy 970, at (concurring S.Ct. Lambert, dissenting opinion 295, 520 U.S. at 117 S.Ct. 1169. Rehnquist, joined White, Chief Justice by Justices Scalia voting uphold Thomas 26. See Saharsky, Nicole A. Consistency as a Con s consent/judicial bypass option of the statute in Comparative titutional Value: A Age Look at question); 8, (Ste- id. at 922 n. 112 S.Ct. 2791 Abortion and Death Penalty Jurisprudence, vens, J., concurring part dissenting part 1119, (2001). Minn. L.Rev. 1170 n. 164 indicating agreement principle "paren- with a (with tal-consent appropriate by- 18.16.030(e). 27. See AS pass)."). 18.16.030(b)(4)(B). 28. See AS 24. 520 U.S. 117 S.Ct. 137 LEd.2d 18.16.030(k). 29. See AS Id. at (quoting S.Ct. 1169 Bellotti v. Baird, 18.16.030(c); 30. See 640-42, 20(d). AS 443 U.S. Alaska R. Prob. P. 99 S.Ct. (1979)). LEd.2d 797 dispute There is a on Court as to whether notification 20(f). must be 31. See Alaska R. Prob. P. their (5) that are aware who parents locations, there all court at are available an abortion has had daughter minor costs, attorney from filing fees or daughter receives that the ensure better appoint Advocacy bewill Public the Office the abor- after attention adequate medical to cost without minor the represent to ed tion; hearings are available.32 her, telephone and usually de- (6) is parental consultation interest in the best and sirable IIL minor; and Since is constitutional. my the act view In legislation en (7) involvement the again after us before will be case this have to has shown in states other acted opin- today's hearing required evidentiary abortion, reducing in effect significant reasons the only here ion, outline I will minors.! among rates birth, pregnancy and conclusion. this the importance of minimizing the purposes out the has set Without legislature purpose of my the in view purposes, оther act as follows: own immatu against their minors protecting legislature intent of It is considered when compelling even rity is important to further enacting Act this find Further, legislative six the first alone. interests compelling and beyond seem above ings noted reasonable controversion.35 their own against (1) minors protecting observed Blackmun Justice immaturity; adult that "imperative" that it is in Danforth pre- and (2) family structure fostering the and knowledge of the nature full have women unit; a viable social serving it as an abor to have a decision consequences of to rear (3) rights parents protecting the with more true tion; surely even this is their members who are children age of seventeen. girls under the respect household; and strong encour- has a The state minor women.! (4) health of protecting seek unemancipated minors aging that 33] deciding parents when their counsel Parents are an abortion. made legislature the act support of advise than others able generally better following findings: involving sensitive matters on children (1) lack the abili- often immature Ste- judgments. Justice personal value that take choices fully informed ty make quoted Danforth, dissent partial vens's long-range and immediate of both account 6-8, Stewart's and Justice pages at above consequences; quoted concurring opinion Danforth emotional, (2) psycho- and physical, 5-6, persua- eloquently and pages above are seri- abortion consequences of logical interest. case for sively make the when lasting particularly can be ous and promote designed to well is act immature; patient going it does so But consultation. (3) become capacity to paren- granting a blanket the line over judgment concern- for mature capacity with a would conflict power veto tal are not abortion of an wisdom aWhen Roe v. Wade. rights under minor's related; necessarily not consult should she girl believes go before is free parents, she her informa- with ordinarily possess parents proce- expedited simplified using surgeon's judge physician's to a tion essential in order legal counsel free concerning dures judgment medical best maturity to has sufficient she show child; suggest not mean Again, I do 44.21.410(a)(4), 18.16.030(n); AS AS 32. See legisla- concerning finding the effects seventh § SLA 2001. ch. amended wrong, it is states tion in other 1(a), § SLA Ch. right. obviously Id., 1(b). § This alter- on her own. make the decision imperative that abor- also serves the

native knowledge full made with tion decisions be understanding their nature and con- sequences. equal superior court ruled Constitution rights clause of the Alaska was violated the act because parental approval to medical consent pregnancy" "conditions related to care for approval-or judicial au require parental agree. I an abortion. do not thorization-for give my minor who decides to birth view a similarly with one who decides is not situated In the former case the to have an abortion. baby healthy becomes critical justify requiring parental con and can Likewise, prenatal care. it is diffi sent imagine that the law would counte cult to young forcing a woman to have an nance refusing against her will. But abortion young to an abortion for a woman consent immature to make her own decisions is too act of a different kind and character.

IV. I would For the reasons outlined above the decision of the court and reverse ‍‌​‌‌​​​‌‌​‌‌​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​‌‌‌​​‌​‍judgment enter remand with directions to favor of the state. JOHN,

Virgil Appellant, Appellee. STATE of Alaska, No. A-7252. Appeals Court of of Alaska. Nov. I, § 36. See Alaska Const. art.

Case Details

Case Name: State v. Planned Parenthood of Alaska

Court Name: Alaska Supreme Court

Date Published: Nov 16, 2001

Citation: 35 P.3d 30

Docket Number: S-8580

Court Abbreviation: Alaska