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Valley Hospital Association, Inc. v. Mat-Su Coalition for Choice (11/21/97), 948 P 2d 963
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Notice: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
VALLEY HOSPITAL ASSOCIATION, )
INC., and JAMES G. WALSH, ) Supreme Court No. S-7417
Valley Hospital Executive )
Director, ) Superior Court No.
) 3PA-92-01207 CI
Appellants, )
)
v. ) O P I N I O N
)
MAT-SU COALITION FOR )
CHOICE, DR. SUSAN LEMAGIE, ) [No. 4906 - November 21, 1997]
and JANE DOES I-X, )
)
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Dana Fabe, Judge.
Appearances: Brian J. Brundin, Brundin, Inc.,
Anchorage, and James Bopp, Jr., Bopp, Coleson & Bostrom, Terre
Haute, Indiana, for Appellants. Stephan H. Williams, Cooperating
Attorney for the Alaska Civil Liberties Union, Anchorage, and
Janet L. Crepps and Kathryn Kolbert, Center for Reproductive Law &
Policy, New York, New York, for Appellees. Susan Wright Mason,
Atkinson, Conway & Gagnon, Anchorage, for Amicus Curiae Alaska
State Hospital and Nursing Home Association. Paul Benjamin Linton,
Americans United for Life, Chicago, Illinois, and Kenneth P.
Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Amici Curiae
Members of the Alaska Legislature. Jeffrey M. Feldman and Susan
Orlansky, Young, Sanders & Feldman, Anchorage, for Amici Curiae
American College of Obstetricians and Gynecologists and American
Medical Women's Association, Inc.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices. [Fabe, Justice, not
participating.]
COMPTON, Chief Justice.
I. INTRODUCTION
Valley Hospital Association (VHA) seeks to reverse the
superior court's summary judgment declaring unenforceable and
permanently enjoining enforcement of its policy limiting abortion.
We affirm the superior court. We hold that (1) Article I,
section 22 of the Alaska Constitution encompasses reproductive
rights, including abortion; (2) VHA is a quasi-public institution
subject to the Alaska Constitution; (3) VHA's abortion policy is an
unconstitutional restriction on the right to abortion;
(4) AS 18.16.010(b) is unconstitutional to the extent it applies to
quasi-public institutions; and (5) the superior court's award of
attorney's fees was not an abuse of discretion.
II. FACTS AND PROCEEDINGS
VHA is a nonprofit corporation organized under Alaska
law. It owns and operates a thirty-six-bed hospital in Palmer.
The hospital is licensed by the State of Alaska (State); it is the
only hospital in the Matanuska-Susitna (Mat-Su) Valley. The
hospital facility currently in use was rebuilt and expanded in the
early 1980s, using $10.7 million in State funds and five acres of
land donated by the City of Palmer. VHA is not affiliated with or
operated by any religious organization. The corporation "is
organized to serve public interests."
VHA's Board of Directors is divided into two boards, the
Association Board and the Operating Board. The Association Board
raises money and acquires property for the hospital and elects the
Operating Board. The Operating Board has all the other powers and
functions of the Board of Directors, including establishing
hospital policy.
VHA is a membership organization. Any adult may become
a VHA member upon paying a five dollar application fee. Members
who are residents of the Mat-Su Borough, denominated "general
members,"annually elect the Association Board.
Abortion has been permitted in Alaska since 1970, when
the state legislature passed the current abortion law. [Fn. 1] VHA
permitted lawful abortion procedures at its facility from 1970
until 1992. [Fn. 2] In 1992 abortion opponents organized a
campaign to enlarge the membership of VHA. In April 1992 a larger-
than-usual membership elected the Association Board, which then
elected the Operating Board. In September 1992 the Operating Board
enacted a new policy on abortion. The policy prohibits abortions
at the hospital unless (1) there is documentation by one or more
physicians that the fetus has a condition that is incompatible with
life; (2) the mother's life is threatened; or (3) the pregnancy is
a result of rape or incest. All VHA Operating Board members
supported this new policy.
The Mat-Su Coalition for Choice, Dr. Susan Lemagie, and
ten unnamed women (Coalition) filed suit against VHA and its
executive director, seeking declaratory and injunctive relief. The
Coalition then filed a motion for a preliminary injunction against
VHA's abortion policy. The superior court granted the motion. [Fn.
3] Its order temporarily enjoined enforcement of VHA's new
abortion policy and restored the status quo existing before the
policy was enacted. The court then granted the Coalition's motion
for summary judgment [Fn. 4] and permanently enjoined VHA
1. from enforcing any policy, rule,
regulation, practice, or custom prohibiting the performance of any
lawful abortion procedure at Valley Hospital;
2. from refusing to permit the facilities of
Valley Hospital to be used for the performance of any lawful
abortion procedure by qualified medical personnel;
3. and from imposing any restriction on the
performance or scheduling of any lawful abortion procedure at
Valley Hospital which is not based on accepted, established medical
practices or requirements with respect to such procedures.
The superior court noted that nothing in the permanent injunction
required anyone affiliated with the hospital "to participate
directly in the performance of any abortion procedure if that
person, for reasons of conscience or belief, objects to doing so."
The superior court granted full reasonable attorney's
fees in the amount of $110,000 to the Coalition in a separate
order. VHA appeals the injunction, the summary judgment, and the
award of attorney's fees to the Coalition.
III. DISCUSSION
A. Standard of Review
We apply our independent judgment in reviewing the
questions of law presented in this appeal, adopting rules of law
which are most persuasive in light of precedent, reason, and
policy. Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). We
review the award of attorney's fees for abuse of discretion.
Bromley v. Mitchell, 902 P.2d 797, 804 (Alaska 1995). An abuse of
discretion is established only where the court's determination is
manifestly unreasonable. Id.
B. The Alaska Constitution Protects Reproductive Autonomy,
Including the Right to Abortion, More Broadly Than Does the United
States Constitution.
1. The United States Constitution
The Supreme Court's articulation of the United States
Constitution's protection of reproductive rights establishes the
minimum protection provided to women in Alaska. [Fn. 5] This
protection includes the right to an abortion. Under Roe v. Wade,
410 U.S. 113, 155 (1973), this right could be limited only where
required by a compelling state interest. Id. States could
regulate abortions performed before a fetus became viable only when
such regulation was necessary to ensure the life and health of the
mother. Id. at 163.
The compelling state interest test no longer accurately
reflects federal constitutional law. Arguably, the prevailing
federal view is that a state may regulate abortions so long as
their regulation does not impose "an undue burden on a woman's
ability"to decide to have an abortion. Planned Parenthood v.
Casey, 505 U.S. 833, 875 (1992) (joint opinion of Justices
O'Connor, Kennedy, and Souter). The O'Connor plurality substituted
the undue burden test for the compelling state interest test in
recognition of the view that there "is a substantial state interest
in potential life throughout pregnancy." Id. at 876. The
following paragraphs from the joint opinion in Casey suggest the
current state of federal constitutional law concerning reproductive
rights:
(a) To protect the central right
recognized by Roe v. Wade while at the same time accommodating the
State's profound interest in potential life, we will employ the
undue burden analysis as explained in this opinion. An undue
burden exists, and therefore a provision of law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of
a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester
framework of Roe v. Wade. To promote the State's profound interest
in potential life, throughout pregnancy the State may take measures
to ensure that the woman's choice is informed, and measures
designed to advance this interest will not be invalidated as long
as their purpose is to persuade the woman to choose childbirth over
abortion. These measures must not be an undue burden on the right.
(c) As with any medical procedure, the
State may enact regulations to further the health or safety of a
woman seeking an abortion. Unnecessary health regulations that
have the purpose or effect of presenting a substantial obstacle to
a woman seeking an abortion impose an undue burden on the right.
(d) Our adoption of the undue burden
analysis does not disturb the central holding of Roe v. Wade, and
we reaffirm that holding. Regardless of whether exceptions are
made for particular circumstances, a State may not prohibit any
woman from making the ultimate decision to terminate her pregnancy
before viability.
(e) We also reaffirm Roe's holding that
"subsequent to viability, the State in promoting its interest in
the potentiality of human life may, if it chooses, regulate, and
even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or
health of the mother." Roe v. Wade, 410 U.S. at 164-65.
505 U.S. at 878-79.
2. The Alaska Constitution
We sometimes have taken a broad view of our role in
defining state constitutional rights:
[W]e are under a duty to develop additional
constitutional rights and privileges under our Alaska Constitution
if we find such fundamental rights and privileges to be within the
intention and spirit of our local constitutional language and to be
necessary for the kind of civilized life and ordered liberty which
is at the core of our constitutional heritage.
Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970)
(extending the constitutional right to a jury trial). [Fn. 6]
Thus, our articulation of the protection of reproductive rights
under Alaska's constitution may be broader than the minimum set by
the federal constitution. Id. at 401 ("[This court is] at liberty
to make constitutional progress in Alaska by our own
interpretations, as long as we measure up to the national standards
which are required by the United States Supreme Court."). [Fn. 7]
Article I, section 22 of the Alaska Constitution
provides:
The right of the people to privacy is
recognized and shall not be infringed.
This express privacy provision was adopted by the people in 1972.
It provides more protection of individual privacy rights than the
United States Constitution. Messerli v. State, 626 P.2d 81, 83
(Alaska 1980) (balancing the individual right to personal autonomy
and free speech with the need for an informed electorate); Ravin v.
State, 537 P.2d 494, 514-15 (Alaska 1975) (Boochever, J.
concurring) ("Since the citizens of Alaska, with their strong
emphasis on individual liberty, enacted an amendment to the Alaska
Constitution expressly providing for a right to privacy not found
in the United States Constitution, it can only be concluded that
that right is broader in scope than that of the Federal
Constitution.").
A woman's control of her body, and the choice whether or
when to bear children, involves the kind of decision-making that is
"necessary for . . . civilized life and ordered liberty." Baker,
471 P.2d at 401-02. Our prior decisions support the further
conclusion that the right to an abortion is the kind of fundamental
right and privilege encompassed within the intention and spirit of
Alaska's constitutional language. "[D]ecisions whether to
accomplish or prevent conception are among the most private and
sensitive." Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469,
479 n.42 (Alaska 1977) (holding that a physician who specialized in
contraception and abortion could not be required to disclose the
names of his patients); see also Cleveland v. Municipality of
Anchorage, 631 P.2d 1073, 1080 (Alaska 1981) (holding that abortion
clinic protests cause patients to "suffer emotional distress as a
result of appellants' invasion of their privacy during a
particularly sensitive period"); Ravin, 537 P.2d at 502 (holding
that decisions about contraception involve "significantly personal
areas").
We stated in Breese v. Smith, 501 P.2d 159, 169 (Alaska
1972), that "few things [are] more personal than one's body."[Fn.
8] In Breese, a school policy regulating hair length was at
issue; the regulation was held unconstitutional because the State
failed to show a compelling interest that justified the policy.
Id. at 170-72. Surely "few things are more personal"than a
woman's control of her body, including the choice of whether and
when to have children.
Of all decisions a person makes about his or
her body, the most profound and intimate relate to two sets of
ultimate questions: first, whether, when and how one's body is to
become the vehicle for another human being's creation; second, when
and how--this time there is no question of "whether"--one's body is
to terminate its organic life.
Laurence H. Tribe, American Constitutional Law 1337-38 (2d ed.
1988). We agree that "[t]he decision whether or not to have a
child is fraught with specific physical, psychological, and
economic implications of a uniquely personal nature for each
woman." In re T.W., 551 So. 2d 1186, 1193 (Fla. 1989) (citing Roe,
410 U.S. at 153).
For the above reasons, we are of the view that
reproductive rights are fundamental, and that they are encompassed
within the right to privacy expressed in article I, section 22 of
the Alaska Constitution. These rights may be legally constrained
only when the constraints are justified by a compelling state
interest, and no less restrictive means could advance that
interest. These fundamental reproductive rights include the right
to an abortion. The scope of the fundamental right to an abortion
that we conclude is encompassed within article I, section 22, is
similar to that expressed in Roe v. Wade. We do not, however,
adopt as Alaska constitutional law the narrower definition of that
right promulgated in the plurality opinion in Casey.
VHA argues that there can be no state constitutional
protection for reproductive rights under article I, section 22,
because the section was intended to encompass protection from
unwarranted surveillance and data collection by the State and
private businesses. It cannot extend beyond this "informational"
privacy. [Fn. 9] To support this argument, VHA cites newspaper
articles and other bills introduced contemporaneously with the
adoption of article I, section 22.
The only informative legislative history consists of the
privacy amendment as originally proposed. [Fn. 10] The earliest
form of the proposed amendment stated:
Section 22. Right of Privacy. The right
of the people to privacy in their opinions, persons, families,
reputations and property is recognized and shall not be violated.
Neither warrants nor writs of investigation in abrogation of
privacy shall issue, except upon probable cause and upon a showing
of a legitimate and pressing need, supported by oath or
affirmation, particularly describing the information or data sought
and the person whose privacy may be affected, and particularly
setting forth the reasons for the search or investigation. The
legislature shall provide for the prosecution and punishment of
public officials and private parties who act in violation of this
section, and shall provide civil remedies to redress and prevent
such violations. The legislature shall provide for the protection
and security of information available to the State to the extent
necessary to protect the rights of the individual recognized in
this section and shall further provide for the protection and
security of information gathered under this section by the State.
1972 Senate Joint Resolution No. 68, 7th Leg., 2d Sess. While the
initial draft of the amendment attempted to specify privacy
interests to be protected, the final constitutional amendment
simply protected the right of the people to privacy. The plain
language of article I, section 22 is a broad protection of privacy
rights. The legislative history is insufficient to limit the
general language of the privacy amendment.
C. VHA's Abortion Policy Is Subject to the Provisions of the
Alaska Constitution.
We previously have determined that a hospital may be a
"quasi-public"institution. Storrs v. Lutheran Hosps. and Homes
Soc'y of Am., Inc., 609 P.2d 24 (Alaska 1980). In Storrs, we held
that a quasi-public hospital "cannot violate due process . . . in
denying staff privileges."[Fn. 11] Id. at 28. The hospital was
quasi-public because: (1) it was the only hospital serving the
community; (2) the construction of the hospital was funded in
significant part by State and federal grants; and (3) over twenty-
five percent of the funds received for hospital services came from
governmental sources. Id. Storrs established that a quasi-public
medical facility is bound to protect constitutional rights affected
by the administration of the hospital. [Fn. 12]
The elements that led us to conclude that the hospital in
Storrs was quasi-public show that the hospital in this case is
quasi-public; thus, the conduct of VHA qualifies as "state action,"
meaning that it "may be fairly treated as [the action] of the State
itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
(1974), quoted in United States Jaycees v. Richardet, 666 P.2d
1008, 1013 (Alaska 1983).
In order to determine whether the hospital operated by
VHA is a quasi-public institution, we look to a number of factors,
just as we did in Storrs. First, VHA has a special relationship
with the State through the State's Certificate of Need program.
Under this program, the State must review and approve expenditures
of one million dollars or more for construction or alteration of a
health care facility. AS 18.07.031. The Department of Health and
Social Services determines whether to grant a Certificate of Need
based on health care demand and resources. AS 18.07.041. [Fn. 13]
This program creates in VHA a type of health care monopoly.
Indeed, VHA is the only hospital serving the Mat-Su Valley, just as
the hospital in Storrs was the only hospital serving the Fairbanks
area. The public need for medical facilities makes this sort of
regulation essential. However, such monopoly privileges may not be
used by VHA to limit access to lawful medical procedures for moral
or religious reasons.
Second, VHA has received construction funds, land, and
operating funds from the State, local, and federal governments,
[Fn. 14] including more than ten million dollars for construction
from the State and a grant of five acres of public land from the
City of Palmer. [Fn. 15] Money from the city and borough came from
pass-through grants from the State legislature. [Fn. 16] VHA is
required to operate as a "public facility"under State laws
governing the pass-through grants from the State to the city and
borough. AS 37.05.315(a) and (c). Finally, a significant portion
of the operating funds VHA receives for hospital services comes
from governmental sources. We also consider the fact that the
hospital is a community hospital whose board is elected by a public
membership. As the superior court noted, the public governance
structure "strongly favors a finding that the hospital is 'quasi-
public.'"
VHA argues that the Storrs quasi-public criteria are
limited to determining whether a hospital must afford due process
in staffing determinations and should not be extended to require
hospitals to protect other constitutional rights. VHA relies on
language in Kiester, which discusses limitations on judicial review
to avoid intruding upon a hospital's recognized expertise in
evaluating medical qualifications. Kiester v. Humana Hosp. Alaska,
Inc., 843 P.2d 1219, 1223 (Alaska 1992). However, no medical
qualification or decision is at issue here. Neither the issue
whether the hospital is quasi-public, nor the issue whether the
abortion policy is invalid on constitutional grounds, involves
intruding on a medical decision that is within the hospital's
expertise. Likewise, VHA has acknowledged that its abortion policy
is not a medical policy, but one founded on "sincere moral
conscience." The scope and application of the Alaska Constitution
to this kind of policy presents a question of law that is within
this court's expertise.
Considering all factors similar to those found persuasive
in Storrs, we conclude that the hospital operated by VHA is a
quasi-public hospital. Its policy concerning abortion must comply
with the Alaska Constitution.
D. VHA Has Not Demonstrated a Compelling State Interest
Justifying Its Abortion Policy.
Since VHA is a quasi-public institution, its policies are
subject to the limitations which the Alaska Constitution imposes on
legislation and government regulations. Under Alaska's
Constitution, there is a protected right to an abortion, and VHA's
policy interferes with that right. Since the right is fundamental,
it cannot be interfered with unless the interference is justified
by a compelling state interest. Further, assuming the existence of
such an interest, there also must be no less restrictive means by
which the interest might be advanced. [Fn. 17] In re A.B., 791 P.2d
615, 621 (Alaska 1990) and Vogler v. Miller, 651 P.2d 1, 5 (Alaska
1981). VHA has not demonstrated a compelling state interest
justifying its policy. It has not advanced any medical, safety, or
other public-welfare interest to justify precluding elective
abortions. VHA has stated unequivocally that its policy is a
matter of conscience, and not a medical, safety, or economic issue.
As VHA cannot raise a free exercise claim, [Fn. 18] this does not
amount to a compelling state interest.
E. Alaska Statute 18.16.010(b) Is Unconstitutional to the
Extent It Applies to Quasi-Public Institutions.
VHA argues that even if the Alaska Constitution
encompasses the right to an abortion, and even if the hospital is
a quasi-public institution, the legislature already has addressed
the issue in AS 18.16.010(b), [Fn. 19] and has determined that a
"hospital may decline to offer abortions for reasons of moral
conscience." VHA argues that "[c]onsistent with its previous
approach to the highly-sensitive question of abortion, this Court
should defer to the considered judgment of the legislature."
However, we cannot defer to the legislature when infringement of a
constitutional right results from legislative action. The issue
before us includes the question whether AS 18.16.010(b) is a
permissible limitation on a constitutional right.
VHA has a "sincere moral belief"that elective abortion
is wrong. [Fn. 20] However, constitutional rights "cannot be
allowed to yield simply because of disagreement with them." Brown
v. Board of Education, 349 U.S. 294, 300 (1955).
The Alaska Attorney General has concluded that
AS 18.16.010(b) is invalid, unless construed to be applicable only
to sectarian facilities. 1978 Formal Op. Att'y Gen. No. 8
(February 10, 1978). The New Jersey Supreme Court struck down an
almost identical statute:
To interpret this act to empower a non-
sectarian non-profit hospital to refuse to
permit its facilities to be used for elective abortions would
clearly constitute state action . . . [f]or the state to frustrate
[the constitutional right to a first trimester abortion] by its
action would be violative of the constitutional guarantee.
Doe v. Bridgeton Hosp. Ass'n, 366 A.2d 641, 647 (N.J. 1976).
VHA argues that because the statute states that abortions
may be performed only in certain situations, but that individuals
and institutions may always refuse to participate in or provide
them, "the legislature has determined that the ability to protect
one's conscience outweighs the ability to procure an abortion."
VHA has no constitutional right at issue; it has at most a
statutory right. The legislature, however, may not balance
statutory rights against constitutional ones, like the right to an
abortion. Therefore, AS 18.16.010(b) is unconstitutional to the
extent that it applies to VHA.
F. The Superior Court's Award of Attorney's Fees Was Not an
Abuse of Discretion.
The superior court awarded full reasonable attorney's
fees to the Coalition. The court based its decision on the factors
articulated in Anchorage Daily News v. Anchorage School District,
803 P.2d 402, 404 (Alaska 1990). The superior court concluded that
VHA was not a public interest litigant immune from having to pay an
award of attorney's fees. [Fn. 21]
We review a trial court's determination of a litigant's
public interest status under the abuse of discretion standard.
Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162,
171 (Alaska 1991). "Such an abuse is regarded as present only
where the trial court's decision appears to be manifestly
unreasonable or motivated by an inappropriate purpose." Kenai
Lumber Co., Inc. v. LeResche, 646 P.2d 215, 222 (Alaska 1982).
VHA asserts two arguments for challenging the fee award:
(1) VHA is a public interest litigant; [Fn. 22] and (2) VHA relied
in good faith on a statute which authorized its policy.
A prevailing public interest plaintiff is normally
entitled to full reasonable attorney's fees. Hunsicker v.
Thompson, 717 P.2d 358, 359 (Alaska 1986). We have determined that
"where both parties are individual, public interest litigants,
neither should be made to bear the fees of the other, each should
simply pay their own." McCormick v. Smith, 799 P.2d 287, 289 n.5
(Alaska 1990). However, VHA is not a public interest litigant. We
are not persuaded by VHA's assertion that its defense of its
abortion policy is in the public interest simply because it raises
constitutional issues.
We have decided one case where we determined that
attorney's fees should not be awarded against a losing private
party in public interest litigation, because an award might have
the effect of deterring citizens from litigating issues of public
concern. Whitson v. Anchorage, 632 P.2d 232, 233 (Alaska 1981).
In Whitson, the defendant was an individual who had placed an
initiative on the next municipal election ballot, and the plaintiff
was the City of Anchorage, which had obtained a judgment finding
the initiative illegal and ordering it removed from the ballot. We
found it significant that Whitson would have been a traditional
private party plaintiff seeking relief against the governmental
entity had the city not "beat[en] him to the courthouse steps,"
making him the nominal defendant. Id. at 234. Had the city
refused to place his initiative on the ballot, rather than doing so
and then suing him to get it removed, Whitson would likely have
sued the city and been the traditional private party plaintiff
seeking relief against the governmental entity. Id. at 233-34. In
this case VHA is not an individual raising a public interest
defense against a governmental entity. Rather, VHA is a quasi-
public institution whose policy has infringed a constitutional
right.
VHA also cannot assert its good faith reliance on
AS 18.16.010(b). As discussed above, that statute cannot
constitutionally be applied to a quasi-public hospital. See
Part III.D. Because VHA is not a private defendant, as it asserts,
it cannot escape liability for attorney's fees by arguing that it
relied in good faith on AS 18.16.010(b).
The superior court did not abuse its discretion in
awarding fees to the Coalition.
IV. CONCLUSION
The superior court's summary judgment and injunction are
AFFIRMED. The superior court's award of attorney's fees was not an
abuse of discretion and is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 18.16.010 provides:
(a) An abortion may not be performed in this state
unless
(1) the abortion is performed by a
physician or surgeon licensed by the State Medical Board under AS
08.64.200;
(2) the abortion is performed in a
hospital or other facility approved for the purpose by the
Department of Health and Social Services or a hospital operated by
the federal government or an agency of the federal government;
. . . .
(b) Nothing in this section requires a
hospital or person to participate in an abortion, nor is a hospital
or person liable for refusing to participate in an abortion under
this section.
Footnote 2:
In July 1991 Humana Hospital in Anchorage stopped allowing
elective abortions. VHA concedes that except pursuant to the
superior court injunction, there is no hospital or other facility
available in the Anchorage/Mat-Su area at which a woman can have a
second trimester elective abortion.
Footnote 3:
In its order granting the Coalition a preliminary injunction,
the superior court determined that the Coalition had shown a clear
probability of success in establishing the following propositions:
(1) Valley Hospital is a quasi-public hospital; (2) the Alaska
Constitution provides greater protection for individual rights than
the United States Constitution; (3) the right to choose an abortion
is a fundamental right guaranteed by article I, section 22 of the
Alaska Constitution; (4) there is no compelling state interest in
Valley Hospital's ban on abortions; and (5) AS 18.16.010(b) does
not immunize Valley Hospital from violating Alaskans'
constitutional right to reproductive choice, including abortions.
Footnote 4:
The superior court's order granting summary judgment was
based on the reasons articulated in
the Court's earlier decision granting a preliminary injunction, the
protections of the right to privacy contained in Article I,  22 of
the Alaska Constitution, and the fact that Valley Hospital is a
non-sectarian, non-profit, quasi-public hospital.
(Citation omitted.)
Footnote 5:
See Planned Parenthood v. Casey, 505 U.S. 833 (1992); Webster
v. Reproductive Health Servs., 492 U.S. 490 (1989); Roe v. Wade,
410 U.S. 113 (1973).
Footnote 6:
VHA interprets this language as a two-prong test which must be
met before we may find a constitutional right. We did not
interpret this language from Baker as VHA now urges us to do when
we decided either Breese v. Smith, 501 P.2d 159 (Alaska 1972)
(holding that governmental control of personal appearance is
antithetical to the concept of personal liberty), or Ravin v.
State, 537 P.2d 494 (Alaska 1975) (holding that privacy in the home
is a fundamental right), although we found a right to exist under
the Alaska Constitution in each of those cases.
Footnote 7:
Other states have interpreted their constitutions to protect
reproductive rights more extensively than does the federal
constitution. Committee to Defend Reprod. Rights v. Myers, 625
P.2d 779 (Cal. 1981) (striking down legislation restricting public
funding of abortions as unconstitutional under the state's
constitutional privacy guarantee); American Academy of Pediatrics
v. Van de Kamp, 263 Cal. Rptr. 46 (Cal. App. 1989) (upholding an
injunction preventing implementation of restrictions on abortion
rights of minors, requiring a compelling state interest before
invasion of minors' privacy rights); In re T.W., 551 So. 2d 1186
(Fla. 1989) (reaffirming the right to choose to terminate a
pregnancy as a fundamental state constitutional right and striking
down legislation restricting abortion rights); Hope v. Perales, 571
N.Y.S.2d 972 (Sup. Ct. 1991) (applying a strict scrutiny standard
for fundamental rights and determining that state failure to fund
medically necessary abortions violated state constitution); Davis
v. Davis, 842 S.W.2d 588 (Tenn. 1992) (extending state
constitutional right to privacy beyond federal right in a custody
dispute over divorced couple's frozen embryos).
Footnote 8:
Breese was decided before the 1972 passage of the privacy
amendment now found in article I, section 22 of the Alaska
Constitution. Breese relied exclusively on the inherent rights
provision found in article I, section 1 of the Alaska Constitution.
The Coalition argues that article I, section 1 of the Alaska
Constitution protects abortion as a fundamental right. Because we
hold this right is grounded in the privacy provision of the
constitution, we do not address whether the right could be based
solely on article I, section 1. While Breese's discussion of
personal autonomy remains instructive, we choose to analyze
reproductive rights under the privacy provision of our
constitution, as other states have done. See, e.g., In re T.W.,
551 So. 2d at 1193.
The relationship between a woman and her doctor is
threatened by VHA's abortion policy, and thus privacy rights are
implicated in addition to the notions of personal autonomy that
were at issue in Breese. The information exchange between a woman
and her doctor about the woman's health and her reproductive
choices is intensely private. The reasons a doctor and patient
choose a medical procedure, so long as it is legal, must not be
subject to the approval of a hospital's board of directors,
according to their own values.
Other privacy interests are also implicated. If a woman
is unable to obtain an abortion near her home, there is an
increased chance that she will have to reveal her pregnancy to
others in order to arrange the necessary travel. The fact that a
woman has visited a certain doctor can be intensely private, when
the doctor is one who specializes in abortion services.
Footnote 9:
The Alaska State Hospital and Nursing Home Association, argues
only that the "legislative"history of the amendment prevents this
court from applying the privacy provision of the constitution to
private parties. We have already established that proposition.
See Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1130
(Alaska 1989).
Footnote 10:
The Alaska State Hospital and Nursing Home Association argues
that a summary of a House Judiciary Committee meeting during which
the proposed amendment was modified is evidence that the privacy
clause was intended to apply only to informational privacy. The
meeting summary is largely a debate over grammar and style and
provides no information which alters our interpretation of article
I, section 22. See H. Jud. Comm. minutes at 318-19, 7th Leg., 1st
Sess. (May 30, 1972).
Footnote 11:
One state court has rejected this application of procedural
due process to private hospitals. See Hottentot v. Mid-Maine Med.
Ctr., 549 A.2d 365, 368 (Me. 1988). At least eight other states
have concluded that private hospitals must follow procedural due
process for physician staffing decisions. Id. at 368 n.4.
Footnote 12:
VHA argues that constitutional due process was never at issue
in Storrs because the hospital stipulated that Dr. Storrs was
entitled to due process. We have stated, however, that Storrs was
a constitutional due process case. Kiester v. Humana Hosp. Alaska,
Inc., 843 P.2d 1219, 1223 n.2 (Alaska 1992); see also Amerada Hess
Pipeline Corp. v. Alaska Pub. Util. Comm'n, 711 P.2d 1170, 1180
(Alaska 1986) (relying on Storrs to find the right to an impartial
decision maker basic to a guarantee of due process). Furthermore,
the Storrs court would not have needed to address whether Dr.
Storrs received due process were he not entitled to it. The
determination that due process applied was material to the holding.
Footnote 13:
AS 18.07.041 provides:
The office shall grant a sponsor a
certificate of need or modify a certificate of need if the
availability and quality of existing health care resources or the
accessibility to those resources is less than the current or
projected requirement for health services required to maintain the
good health of citizens of this state.
Footnote 14:
VHA's assets totaled $31.7 million as of December 31, 1993.
Between 1985 and 1993, VHA provided $37.5 million in unreimbursed
care. In 1991, 14.71% and 5.98% of VHA's gross receipts were from
Medicare and Medicaid respectively. VHA's April 1993 Certificate
of Need application to the State showed that Medicare and Medicaid
receipts total approximately $3.75 million to $5.1 million for the
1990, 1991, and 1992 fiscal years. This is approximately 25% of
VHA's patient revenues for those three years.
Footnote 15:
The Alaska State Hospital and Nursing Home Association argues
that money received under the federal Hill-Burton Act cannot be
used as a basis for requiring hospitals to perform abortions. 42
U.S.C.  300a-7(b). The record does not show that any Hill-Burton
money was used when the facilities were rebuilt in the early 1980s.
Footnote 16:
The statute allowing pass-through grants requires the
municipality to agree that the facilities and services provided by
the grant will be available for the use of the general public, and
that the municipality will operate and maintain the facility for
the practical life of the facility. AS 37.05.315(a) and (c). This
is an additional indication that VHA is a quasi-public institution.
See 1986 Informal Op. Att'y Gen. 1 (Apr. 8, 1982) (stating that
municipality accepting funds for construction of a public facility
must ensure the operation and maintenance of the facility, even if
the facility will be owned and operated by a private non-profit
organization); see also 1991 Informal Op. Att'y Gen. 19 (Sept. 22,
1986) (indicating that the State may have a cause of action against
a city that allows a facility funded by pass-through grants to be
converted to private use).
Footnote 17:
We have used both the compelling state interest/least
restrictive means test and the legitimate state interest/close and
substantial relationship test in the privacy context. See Jones v.
Jennings, 788 P.2d 732, 737-38 (Alaska 1990); State v. Erickson,
574 P.2d 1 (Alaska 1978); Ravin, 537 P.2d at 504. However,
"[w]here the right to privacy is manifested in terms of interests
. . . squarely within personal autonomy,"as here, we use the
compelling state interest test. Erickson, 574 P.2d at 22, n.144.
Footnote 18:
See infra note 20. Nothing said in this opinion should be
taken to suggest that a quasi-public hospital could have a policy
based on the religious tenets of its sponsors which could be a
compelling state interest. Recognizing such a policy as
"compelling"could violate the Establishment Clause of the First
Amendment to the United States Constitution. As this point is not
raised, we do not rule on it.
Footnote 19:
AS 18.16.010(b) provides:
Nothing in this section requires a
hospital or person to participate in an abortion, nor is a hospital
or person liable for refusing to participate in an abortion under
this section.
Footnote 20:
VHA bases its argument in part on Frank v. State, 604 P.2d
1068 (Alaska 1979), a free exercise of religion case based on the
First Amendment to the United States Constitution and article I,
section 4 of the Alaska Constitution. See Frank, 604 P.2d at 1070
(killing of cow moose for funeral potlatch protected as free
exercise of religion). VHA is not affiliated with any religion and
cannot raise a free exercise claim.
Footnote 21:
A party qualifies as a public interest litigant if (1) the
case effectuates a strong public policy, (2) numerous people will
benefit from the litigation, (3) only a private party could be
expected to bring the action, and (4) the party would not have
sufficient economic incentive to bring the lawsuit even if the
action involved only narrow issues lacking general importance.
Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d 420,
423 (Alaska 1995).
Footnote 22:
The Coalition argues that VHA did not challenge the superior
court's determination that VHA is not a public interest litigant in
its points on appeal and is barred from doing so now. Alaska
Appellate Rule 204(e) provides that this court will consider only
points included in the statement of points on appeal. See also
Kalenka v. Taylor, 896 P.2d 222, 229 (Alaska 1995) (holding that
where appellants failed to properly appeal a fee award and offered
no mitigating circumstances to explain the failure, they cannot
raise the issue). However, whether VHA is a public interest
litigant is a legal issue that can be considered on the record
before the court. See, e.g., Oceanview Homeowners Ass'n v.
Quadrant Const., 680 P.2d 793, 797 (Alaska 1984). Additionally,
although VHA's public interest status is not mentioned in the
points on appeal, the issue of fees is raised. See Putnam v.
State, 629 P.2d 35, 39 n.2 (Alaska 1980). There is no prejudice to
the Coalition in considering the issue on appeal.
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