Friday, July 22, 2016

Alaska Supreme Court Holds Parental Notification Law Violates State Constitution's Equal Protection Clause

In its opinion in Planned Parenthood of the Great Northwest v. State of Alaska, the Alaska Supreme Court held unconstitutional the 2010 voter-enacted Parental Notification Law which required 48-hour advance parental notice before a physician may terminate a minor’s pregnancy, but importantly not before a physician could provide other care.  The court's majority opinion, authored by Justice Daniel Winfree, found that the Parental Notification Law violates 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.

Although explicitly under the state constitution, the court's equal protection analysis is a familiar one and executed with great precision.  The court first identifies the classification - - - pregnant minors seeking termination and pregnant minors seeking to carry to term - - - and then identifies the level of scrutiny; because the right at stake is the fundamental one of reproductive choice is strict scrutiny. Applying the level of scrutiny, the court then examined the state's interests and the means chosen to effectuate those interests.

The court noted that to "justify differently burdening fundamental privacy rights, the State’s interests in doing so must be compelling," and that the State asserts two main interests as justifying the Notification Law’s disparate treatment of pregnant minors: (1) “aiding parents to fulfill their parental responsibilities” and (2) “protecting minors from their immaturity.” The court accepted that these were compelling interests, even as it refined the immaturity interest because "immaturity in and of itself is not a harm."  Instead, the court defined the interest in “protecting minors from their immaturity”  as "protecting minors from specific pitfalls and dangers to which their immaturity makes them especially susceptible" which in this case would be risks to mental and physical health and from sexual abuse.

The problem arose - - - as it so often does in equal protection - - - with the "fit" between the state's chosen means to effectuate its interests.  As to the parental responsibility interest:

We conclude that vindicating the State’s compelling interest in encouraging parental involvement in minors’ pregnancy-related decisions does not support the Notification Law’s disparate treatment of the two classes of pregnant minors. Parents do have an “important ‘guiding role’ to play in the upbringing of their children.” We have said that “it is the right and duty, privilege and burden, of all parents to involve themselves in their children’s lives; to provide their children with emotional, physical, and material support; and to instill in their children ‘moral standards, religious beliefs, and elements of good citizenship.’ ” But as the State acknowledged at oral argument, this must be true for all pregnant minors’ parents, not just those whose daughters are considering termination.

[footnotes omitted; emphasis added].  Similarly, regarding the minor's immaturity, the court concluded that the statute suffered from being

under-inclusive because the governmental interests asserted in this case are implicated for all pregnant minors — as they face reproductive choices and as they live with their decisions — and the asserted justifications for disparate treatment based upon a minor’s actual reproductive choice are unconvincing.

One of the complicating legal issues of the case was the effect of a previous decision regarding a parental consent law, which the concurring opinion argued precluded an equal protection analysis.  Instead, the concurring opinion argued that the 2010 statute was unconstitutional under the state constitution's privacy provision.

One of the five Justices of the Alaska Supreme Court dissented, arguing that the 2010 Parental Notification law violated neither equal protection nor privacy and was thus constitutional.

As the majority opinion notes, other states have similarly found state constitutional infirmities with parental notification laws. The Alaska opinion, however, is particularly well-reasoned and applicable to many state constitutions.

Alaska skies
Alaska Skies mural in Alaska Supreme Court via

Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, Family, Gender, Medical Decisions, Privacy, Sexuality, State Constitutional Law | Permalink


Leave it to trained lawyers and jurists to twist the lofty intention of the voters, which should be preeminent in any case, into a meat-grinder of legalese. Suggest voters revisit their referendum with jurist-proof wording to accomplish their commonsense intention.

Posted by: James Delaney | Jul 23, 2016 7:47:06 AM

I'm a little confused. I thought that suspect classifications (race, sex, maybe sexual orientation) get higher scrutiny in an equal protection issue and fundamental rights get higher scrutiny in a "due process" issue.
Didn't this court mix the two together?

Posted by: brad | Jul 25, 2016 6:46:21 AM

On an equal protection, the notion is that if the right involved is fundamental, then whatever the classification, the government action should get strict scrutiny. Think of a classification between green-eyed and blue-eyed persons. If the right involved was voting, we would think very differently about it than if the "right" were a designation on a drivers license form.
On the voter-intent issue, it does seem as if the voter-intent is discriminatory, then the courts should remedy, no?

Posted by: Ruthann Robson | Jul 29, 2016 4:28:38 PM

From my perspective, substantive Due Process deals with whether something can be taken away at all, while Equal Protection deals with whether it can be taken away from or given to some but not others. In both areas, laws that impair fundamental rights are entitled to strict scrutiny. It is my understanding, though, that some rights are fundamental under the Equal Protection Clause but not the Due Process Clause; voting, for example, can be abolished for entire categories of traditional democratic choice (school boards, for example), but at the same time, a rule that only blue eyed people can vote for school board members would be subject to strict scrutiny even though, as you point out, eye color is not a suspect classification.

Posted by: Josh | Aug 9, 2016 11:21:39 AM

I do think in this case, though, that the issue is better suited to Due Process analysis (of course, the fact that the State Constitution is used instead of the federal one, to avoid the prevailing federal undue burden structure, makes it hard to evaluate the basis for the result without greater familiarity with Alaskan precedent). Using the judge’s rationale, I could turn any Due Process question into an Equal Protection one. A blanket prohibition on all firearms distinguishes between the classifications of people who aren’t seeking to obtain a firearm and people who are; a blanket ban on contraceptives distinguishes between people seeking to use contraceptives and people who aren’t. Generally, I think that if a law distinguishes based on a type of action or property characteristics, rather than characteristics of the regulated actors themselves, it is best analyzed under a Due Process framework.

While the failure of the state to require parental involvement in other pregnancy/reproduction decisions is relevant, it is relevant insofar as it speaks to the weight of the state’s alleged interest (as under-inclusiveness tends to weaken the case for the importance of an interest), and not in the sense that it creates an unlawful classification for Equal Protection purposes.

Posted by: Josh | Aug 9, 2016 11:41:24 AM

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