Planned Parenthood Northwest v. State
| Decision Date | 22 July 2016 |
| Docket Number | Supreme Court No. S-15030,Supreme Court No. S-15039 (Consolidated),No. 7114,Supreme Court No. S-15010,7114 |
| Parties | 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. |
| Court | Alaska Supreme Court |
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us.
Superior Court No. 3AN-10-12279 CI
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge.
Appearances: Susan Orlansky, Feldman Orlansky & Sanders, and Thomas Stenson, ACLU of Alaska Foundation, Anchorage, Janet Crepps, Center for Reproductive Rights, Simpsonville, South Carolina, Talcott Camp and Andrew Beck, ACLU Foundation, and Diana O. Salgado, Planned Parenthood Federation of America, New York, New York, and Laura F. Einstein, Planned Parenthood of the Great Northwest, Seattle, Washington, for Appellants/Cross-Appellees. Margaret Paton Walsh and Dario Borghesan, Assistant Attorneys General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau for Appellee/Cross-Appellant State of Alaska. Kevin G. Clarkson and
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.
FABE, Chief Justice, joined in part by Maassen and Bolger, Justices, concurring.
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 withwhether, given its stated underlying justifications, the current Notification Law complies with the Alaska Constitution's equal protection guarantee — and it does not.
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 ofportions of AS 11.15.060.6 The Attorney General concluded that the parental consent provision was a "clearly unconstitutional" infringement of minors' fundamental privacy rights under the United States Constitution because it was a blanket ban — regardless of a minor's actual capacity or maturity — and it applied even when an abortion might be necessary to save a minor's life.7
In 1980 the legislature removed AS 11.15.060 from the criminal statutes and renumbered it as AS 18.16.010, but did not respond to the Attorney General's 1976 opinion that the parental consent provision violated the United States Constitution.8 The parental consent provision remained in place as AS 18.16.010(a)(3) until amended with the enactment of the 1997 Parental Consent Act.9 The relevant provision of the medical emancipation statute has not changed — other than replacing the exception's original 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
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 1997we 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
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.16The 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...
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