The Alaska Supreme Court Decision on the Parental Consent Act

Last week the ADN had the following headline:

Supreme Court's abortion ruling angers GOP lawmakers

SEEK CHANGE: Coghill, Dyson want Alaska Constitution amended so state can require parental consent for underage girls.

By STEVE QUINN

Radical Catholic Mom argues strongly that pro-life legislation is the wrong way to go in Alaska:

The ONLY method is a Constitutional Amendment. That is the only way. Until there is a Constitutional Amendment, no pro-life bill will be able to survive the AK Constitution.

The discussion on her blog caused me to look up the ruling which can be found here. Below I've excerpted some sections of the decision so you can see the general logic of the court in the decision. The basic question is whether the law - which requires parental consent for girls under 17 to get an abortion, with exceptions for girls who are deemed competent to make the decision on their own (if they are married, in the military, legally emancipated, etc.) or getting parental consent would not be in the interest of the girl. On the face of it, telling parents, whose consent is required for getting a shot, that they do not have veto power over an abortion, seems contradictory. The court does weigh this parental responsibility to look after the interests of the child because children are recognized as not yet mature enough to make many decisions against the constitutional right of a woman to have control over her body. The question then is whether the Parental Consent Act (PCA) is the least restrictive means to achieve the balance between the two competing rights. The majority decides it is not.

Justice CARPENETI (appointed by to the Supreme Court in 1998 by Governor Knowles) wrote the dissenting opinion and was joined by Justice Matthews (appointed to the Supreme Court in 1977 by Jay Hammond.) They believed that the PCA did maintain the balance.

[p. 4] II. FACTS AND PROCEEDINGS
In 1997 the Alaska Legislature passed the Alaska Parental Consent Act
(PCA). The PCA prohibits doctors from performing an abortion on an “unmarried,5 unemancipated woman under 17 years of age” without parental consent or judicial authorization. The Act subjects doctors who knowingly perform abortions on minors6 without the required consent or judicial authorization to criminal prosecution. The7 parental consent requirement can be met through written consent from a parent, guardian, or custodian of the minor. The Act also includes a judicial bypass procedure whereby8 a minor may file a complaint in superior court and obtain judicial authorization to terminate a pregnancy if she can establish by clear and convincing evidence either that she is “sufficiently mature and well enough informed to decide intelligently whether to have an abortion” or that being required to obtain parental consent would not be in her best interests. If the court fails to hold a hearing within five business days after the9 complaint is filed, the court’s inaction is considered a constructive order authorizing the
minor to consent to terminate the pregnancy. 10


[p. 6] The State appealed, and on November 16, 2001, we issued our decision in
Planned Parenthood I. In that case, we concluded that the privacy clause of the Alaska11 Constitution extends to minors as well as adults and that the State may constrain a pregnant minor’s privacy right “only when necessary to further a compelling state interest and only if no less restrictive means exist to advance that interest.” We also12 reversed the grant of summary judgment and remanded the case for an evidentiary hearing to determine whether the PCA actually furthers compelling state interests using the least restrictive means available.13


[P. 8] As we have previously explained, the primary purpose of this section
is to protect Alaskans’ “personal privacy and dignity against unwarranted intrusions by the State.” Because this right to privacy is explicit, its protections are necessarily more22 robust and “broader in scope” than those of the implied federal right to privacy. 23 Included within the broad scope of the Alaska Constitution’s privacy clause is the fundamental right to reproductive choice. As we have stated in the past, “fewthings are more personal than a woman’s control of her body, including the choice of whether and when to have children,” and that choice is therefore necessarily protected by the right to privacy. Of course, our original decision concerning the fundamental24 right to reproductive choice specifically addressed only the privacy interests of adult women, but because the “uniquely personal physical, psychological, and economic implications of the abortion decision . . . are in no way peculiar to adult women,” its25 reasoning was and continues to be as applicable to minors as it is to adults. Thus, in26 Planned Parenthood I, we explicitly extended the fundamental reproductive rights guaranteed by the privacy clause to minors. 27


[P. 9] In the case at hand, the PCA requires minors to secure either the consent of
their parent or judicial authorization before they may exercise their uniquely personal reproductive freedoms. This requirement no doubt places a burden on minors’ fundamental right to privacy. As such, the PCA must be subjected to strict scrutiny and can only survive review if it advances a compelling state interest using the least restrictive means of achieving that interest. 28

They agree that the state’s interests are compelling.

[p. 10] B. The State’s Asserted Interests Are Compelling.
The State asserts that the PCA works, on the most generalized level, to
advance two interrelated interests: protecting minors from their own immaturity and aiding parents in fulfilling their parental responsibilities. We agree with the State that29 these are compelling interests.

We thus echo the United States Supreme Court’s statement that, “[u]nder
the Constitution, the State can ‘properly conclude that parents . . . who have [the] primary responsibility for children’s well-being are entitled to the support of laws designed to aid [in the] discharge of that responsibility.’ ”38

But,

[P.12] C. The PCA Is Not the Least Restrictive Means of Achieving the State’s
Compelling Interests.

We recognize that the legislature has made a serious effort to narrowly
tailor the scope of the PCA by exempting seventeen-year-olds and other categories of pregnant minors from the Act’s ban. It is true that the PCA is less restrictive than many other state statutes in terms of the scope of its coverage. But scope is only one of the important criteria that determine the extent to which a parental involvement law restricts minors’ privacy rights. The method by which the statute involves parents is also central to determining whether the Act’s provisions constitute the least restrictive means of pursuing the State’s ends.

By prohibiting minors from terminating a pregnancy without the consent
of their parents, the PCA bestows upon parents what has been described as a “veto
power” over their minor children’s abortion decisions. This “veto power” does not39 merely restrict minors’ right to choose whether and when to have children, but effectively shifts a portion of that right from minors to parents. In practice, under the PCA, it is no longer the pregnant minor who ultimately chooses to exercise her right to terminate her pregnancy, but that minor’s parents. And it is this shifting of the locus of choice — this relocation of a fundamental right from minors to parents — that is constitutionally suspect. For a review of statutory schemes enacted around the nation reveals a widely[p13] used legislative alternative that does not shift a minor’s right to choose: parental notification.

[p. 14 ..... But the State and its supporting amici fail to effectively rebut the trial court’s express findings to the contrary. According to the superior court’s findings, the PCA’s bypass procedures build in delay that may prove “detrimental to the physical health of the minor,” particularly for minors in rural Alaska who “already face logistical obstacles to obtaining an abortion.” The trial court found that judicial bypass procedures “will increase these problems, delay the abortion, and increase the probability that the minor may not be able to receive a safe and legal abortion.”

In fact, they argue, the parental notification, ultimately promotes the dialogue between the pregnant minor and her parents more than does a consent requirement.

[p. 15] Ultimately, because the PCA shifts the right to reproductive choice to minors’ parents, we must conclude that the PCA is, all else being held equal, more restrictive than a parental notification statute. The State has failed to establish that the “greater intrusiveness of consent statutes” is in any way necessary to advance its compelling interests. In fact, in its briefing before us, the State has not focused on the PCA’s benefits as flowing directly from the parental “veto power”; instead, it has consistently suggested that the PCA’s benefits flow from increased parental communication and involvement in the decision-making process. According to the State, the PCA protects minors from their own immaturity by increasing “adult supervision”; it protects the physical, emotional, and psychological health of minors, “[p]articularly in the post-abortion context, [by increasing] parental participation . . . for the purposes of monitoring . . . risks”; it ensures that minors give informed consent to the abortion procedure by making it more likely that they will receive “counsel that a doctor cannot give, advice, adapted to her unique family situation, that covers the moral, social and religious aspects of the abortion decision”; it protects minors from sexual abuse since “once appr[]ised of a young girl’s pregnancy, parents . . . will ask who impregnated her and will report any sexual abuse”; and it strengthens the parent-child relationship by “increas[ing] parental involvement,” “parental consultation,” and open and honest
communication.

[p. 16] The dissent suggests that where a minor forgoes judicialbypass, parental consent guarantees “a conversation.” But it guarantees no more than a one-way conversation and “allows parents to refuse to consent not only where their
judgment is better informed and considered than that of their daughter, but also where it is colored by personal religious belief, whim, or even hostility to her best interests.”44

While the decision is 16 pages, the dissent is 31 pages. The real difference is in the section of where they discuss whether the PCA is the least restrictive option. The dissent argues that it is. In the link to the decision this section begins on page 33.

The dissenting opinion is worth reading, but we have visitors from Juneau and you can read it at the link.