State v. Planned Parenthood of Alaska, No. S-8580.

• Court: Supreme Court of Alaska (US)
• Writing for the Court: MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
• Citation: 35 P.3d 30
• Parties: STATE of Alaska, Appellant, v. PLANNED PARENTHOOD OF ALASKA, Jan Whitefield, M.D., and Robert Klem, M.D., Appellees.
• Docket Number: No. S-8580.
• Decision Date: 16 November 2001

35 P.3d 30

STATE of Alaska, Appellant,
v.
PLANNED PARENTHOOD OF ALASKA, Jan Whitefield, M.D., and Robert Klem, M.D., Appellees

No. S-8580.

Supreme Court of Alaska.

November 16, 2001.

35 P.3d 32

W.H. Hawley, Jr., Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, James P. Doogan, Jr., Assistant District Attorney, Fairbanks, Cynthia M. Cooper, Deputy Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant

Joyce E. Bamberger and Jim Kentch, Cooperating Attorneys, Alaska Civil Liberties Union Foundation, Anchorage, and Janet L. Crepps, Center for Reproductive Law & Policy, Simpsonville, SC, for Appellees.

Les Gara, Friedman, Rubin & White, Anchorage, for Amicus Curiae Alaska Chapter of the American Academy of Pediatrics.

Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, for Amicus Curiae Concerned Alaska Parents, Inc.

Paul Benjamin Linton, Northbrook, IL, and Jeffrey D. Troutt, Juneau, for Amicus Curiae Alaska State Legislature.

Before: MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

BRYNER, Justice.

I. INTRODUCTION

The state appeals a summary judgment order declaring void, as contrary to the Alaska Constitution's equal protection guarantee, a statute requiring minors to obtain parental consent or judicial authorization before obtaining an abortion. We affirm the superior court's decision on preliminary issues— whether plaintiffs have standing, whether they may properly claim that the statute is unconstitutional on its face, whether the Alaska Constitution's guarantee of privacy is self executing, and whether that guarantee extends to minors—but conclude that the court erred in declining to hear evidence on and to decide the central questions whether the state has a compelling interest in enforcing the parental consent statute and whether the statute is properly tailored to promote the state's interest. We thus reverse the summary judgment order and remand for an evidentiary hearing.

II. FACTS AND PROCEEDINGS

In 1997 the Alaska Legislature passed S.B. 24, an act that prohibits doctors from performing abortions on unemancipated women under seventeen years of age without parental consent or judicial authorization¹ and that subjects doctors to criminal penalties for knowingly performing abortions on minors without the required consent or authorization.² The act's consent requirement can be met by written consent from a parent or guardian or by a court order bypassing consent.³ To obtain a judicial bypass order, a

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minor must file a complaint in superior court and establish by clear and convincing evidence either that she is "sufficiently mature and well enough informed to decide intelligently whether to have an abortion without the consent of a parent, guardian, or custodian" or that parental consent would not be in her best interests.⁴ The superior court must appoint counsel for minors who are unrepresented,⁵ and judicial bypass proceedings are confidential.⁶ If the court fails to hear a complaint within five days after filing, the court's inaction constructively authorizes the minor to consent for herself.⁷

Soon after the legislature enacted this parental consent or judicial authorization requirement, Planned Parenthood of Alaska and Drs. Jan Whitefield and Robert Klem filed an action in superior court, claiming that the act is void because it violates the Alaska Constitution's guarantees of privacy, equal protection, freedom from discrimination based on sex, and due process. They later moved for summary judgment. The superior court granted their motion, concluding that the act violates equal protection by requiring consent or judicial authorization for pregnant minors who choose abortion, but not for those who choose to give birth.

Before reaching the equal protection issue, however, the court addressed the issue of a minor's right to privacy. Relying on the Alaska Constitution's express guarantee of privacy,⁸ this court's case law interpreting that right, and relevant cases from states interpreting similar constitutional provisions, the superior court determined that privacy is a fundamental individual right, that this right encompasses a pregnant woman's reproductive choices, and that it applies to minors and adults co-extensively, regardless of age. While recognizing obvious distinctions between a minor's and an adult's capacity to make mature reproductive choices, the court reasoned that such differences do not dilute the fundamental quality of a minor's constitutional right to privacy, but relate instead to the state's countervailing interest in controlling the circumstances under which minors can exercise their privacy right without supervision.

Having determined that the Alaska Constitution's privacy clause protects minors and adults alike, the superior court decided that the act requiring parental consent or judicial authorization could withstand constitutional scrutiny on privacy grounds only if the state established that it had a compelling interest in requiring consent and that no less restrictive means of achieving that interest existed. The court seems to have recognized that ruling summarily on these points might be problematic, noting that "it would be necessary to examine the legislative statements of purpose and findings of fact as well as to reach findings of fact based upon the evidence produced in this matter."

But the court found no need to resolve these issues, ruling instead that plaintiffs were entitled to summary judgment on an alternative constitutional ground. Without deciding whether the state had a compelling interest in requiring pregnant minors to obtain parental consent or judicial authorization to obtain an abortion, the court concluded that the act violated the Alaska Constitution's equal protection clause because none of the act's stated purposes and supporting findings established a compelling state interest in applying the consent or authorization requirement to pregnant minors who choose to have abortions, but not to those who choose to give birth.

The state appeals.

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III. DISCUSSION

A. Standard of Review

We will affirm a grant of summary judgment only when, construing all disputed inferences of fact in favor of the non-moving party, we find that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.⁹ In deciding questions of law, "[o]ur duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy."¹⁰

B. Standing

The state contends that Planned Parenthood and Drs. Whitefield and Klem lack standing to pursue this action. But we have long interpreted Alaska's standing requirement leniently in order to facilitate access to the courts.¹¹ "The basic idea ... is that an identifiable trifle is enough for standing to fight out a question of principle."¹² Here, Planned Parenthood of Alaska has a strong and direct interest in the challenged statute;¹³ the injuries it alleges are more than trifling; and no one disputes that its claims raise important questions of principle. Moreover, in other Alaska abortion litigation against Planned Parenthood of Alaska, the state has failed to question the organization's standing to challenge abortion legislation.¹⁴ We find no sound reason to deny Planned Parenthood standing here.

Drs. Whitefield and Klem also have a direct interest in the disputed statute: both physicians allege that they regularly provide abortion services to women in Alaska, including minors. The state nonetheless contends that both doctors lack standing because neither faces a specific threat of prosecution or alleges past prosecutions. But the doctors need not allege such drastic harm to meet Alaska's lenient test of standing. The parental consent or judicial authorization act would require both doctors to change their current practices and would expose them to civil and criminal liability if they failed to comply;¹⁵ this suffices to establish more than a trifling or speculative injury. Moreover, Drs. Whitefield and Klem derive standing from their patients. That physicians have standing to challenge abortion laws on behalf of prospective patients seems universally settled; indeed, the United States Supreme Court has emphasized that physicians are "uniquely qualified" to litigate the constitutionality of state action interfering with a woman's decision to terminate a pregnancy.¹⁶

Accordingly, we conclude that Planned Parenthood and Drs. Whitefield and Klem have standing to challenge the parental consent act's requirements.

C. Facial Challenge

The state next asserts that plaintiffs' facial constitutional challenge must fail because they have failed to show that the parental consent or judicial authorization requirement could have no constitutional applications. In advancing this assertion, the state relies on Javed v. State, Department

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of Public Safety,¹⁷ where we quoted the Supreme Court's decision in United States v. Salerno¹⁸ for the proposition that "[a] statute is facially unconstitutional if `no set of circumstances exists under which the Act would be valid.'"¹⁹ But we did not invoke the Salerno rule in Javed as a justification for avoiding constitutional review; instead, we relied on the rule for the distinctly narrower purpose of severing a limited portion of a statute, which we found unconstitutional, from the balance of the statute, which we found valid.²⁰

And in any event, Salerno's "no set of circumstances" language is not a rigid requirement.²¹ In reviewing challenges to abortion-related statutes, the United States Supreme Court has shown considerable flexibility in allowing litigants to raise claims alleging facial invalidity. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey,²² the Court invalidated a spousal notification statute even though statistics suggested that...