Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Planned Parenthood of Alaska (11/02/2007) sp-6184

State v. Planned Parenthood of Alaska (11/02/2007) sp-6184, 171 P3d 577

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA, )
) Supreme Court Nos. S- 11365/11386
Appellant/ )
Cross-Appellee, ) Superior Court No.
) 3AN-97-06014 CI
v. )
) O P I N I O N
PLANNED PARENTHOOD OF )
ALASKA and JAN WHITEFIELD, ) No. 6184 November 2, 2007
M.D., )
)
Appellees/ )
Cross-Appellants. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Kevin G. Clarkson, Brena,  Bell
          &  Clarkson,  P.C., Anchorage, for  Appellant
          and Cross-Appellee.  Janet Crepps, Center for
          Reproductive   Rights,  Simpsonville,   South
          Carolina,  and  Suzanne  Novak,  Center   for
          Reproductive Rights, New York, New York,  for
          Appellees  and Cross-Appellants, and  Jeffrey
          M.  Feldman,  Feldman & Orlansky,  Anchorage,
          for   Appellees  and  Cross-Appellants,   and
          Cooperating  Attorney for  the  Alaska  Civil
          Liberties   Union.   Paul  Benjamin   Linton,
          Northbrook,   Illinois,  and  Robert   Flint,
          Hartig,  Rhodes,  Hoge & Lekisch,  Anchorage,
          for  Amicus  Curiae Alaska State Legislature.
          Kenneth  C.  Kirk, Kenneth Kirk & Associates,
          Anchorage, for Amicus Curiae Family  Research
          Council.   Wayne Anthony Ross, Ross &  Miner,
          Anchorage, for Amicus Curiae Americans United
          for  Life.   Geoffrey  G.  Currall,  Keene  &
          Currall, Ketchikan, for Amicus Curiae Liberty
          Legal   Institute.   Sara  Trent,  Anchorage,
          Cooperating  Attorney for  the  Alaska  Civil
          Liberties Union, and Kent A. Yalowitz, Arnold
          &  Porter LLP, New York, New York, for Amicus
          Curiae Alaska Chapter of the American Academy
          of  Pediatrics.  Erica A. Green  and  Deborah
          Kovsky-Apap, Wilmer Cutler Pickering  Hale  &
          Dorr  LLP,  Washington, D.C.,  and  Christine
          Schleuss,  Friedman Rubin & White, Anchorage,
          for   Amici   Curiae  American   College   of
          Obstetricians and Gynecologists,  Society  of
          Adolescent   Medicine,  and  Physicians   for
          Reproductive   Choice  and  Health.    Janell
          Hafner,  Reges  &  Boone,  LLC,  Juneau,  and
          Stacey   I.   Young,  Womens   Law   Project,
          Pittsburgh,  Pennsylvania, for  Amici  Curiae
          National Association of Social Workers Alaska
          Chapter,  Alaska  Womens Lobby,  Alaska  Pro-
          Choice  Coalition, National Center for  Youth
          Law,  Juvenile  Law  Center,  and  Janes  Due
          Process.   Debra J. Brandwein, Foster  Pepper
          Rubini  &  Reeves LLC, Anchorage, for  Amicus
          Curiae Northwest Womens Law Center.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.
          CARPENETI,   Justice,  with  whom   Matthews,
          Justice, joins, dissenting.

I.   INTRODUCTION
          From  time  to  time,  we  are called  upon  to  decide
constitutional cases that touch upon the most contentious  moral,
ethical,  and  political issues of our day.    In  deciding  such
cases,  we  are ever mindful of the unique role we  play  in  our
democratic system of government.  We are not legislators,  policy
makers,  or  pundits  charged with making law  or  assessing  the
wisdom  of  legislative  enactments.  We  are  not  philosophers,
ethicists,   or   theologians,  and  cannot  aspire   to   answer
fundamental moral questions or resolve societal debates.1  We are
focused only on upholding the constitution and laws of the  State
of Alaska.
          Today,  we are once again called upon to decide a  case
that   implicates  the  controversial  issue  of  abortion;  more
specifically, we are called upon to decide whether  the  Parental
Consent  Act  impermissibly infringes upon a  minors  fundamental
right  to privacy when deciding whether to terminate a pregnancy.
We  decide  today  that  the State has an  undeniably  compelling
interest  in  protecting the health of minors  and  in  fostering
family involvement in a minors decisions regarding her pregnancy.
          And contrary to the arguments of Planned Parenthood, we determine
that  the  constitution permits a statutory scheme which  ensures
that  parents are notified so that they can be engaged  in  their
daughters   important  decisions  in  these  matters.    But   we
ultimately  conclude  that the Act does  not  strike  the  proper
constitutional  balance between the States  compelling  interests
and a minors fundamental right to privacy.
          This  is the second time that this case has been before
us,  and  we  earlier held that the privacy clause of the  Alaska
Constitution  extends to minors as well as adults  and  that  the
State may restrict a minors privacy right only when necessary  to
further  a  compelling  state  interest  and  only  if  no   less
restrictive  means exist to advance that interest.2   The  States
asserted  interest in protecting a minor from her own  immaturity
by   encouraging  parental  involvement  in  her  decision-making
process  is undoubtedly compelling.  But by prohibiting  a  minor
from  obtaining  an abortion without parental  consent,  the  Act
effectively shifts that minors fundamental right to choose if and
when to have a child from the minor to her parents.  There exists
a  less  burdensome  and widely used means of actively  involving
parents  in  their minor childrens abortion decisions:   parental
notification.3   The United States Supreme Court has  recognized,
in  a  different context, that notice statutes are not equivalent
to  consent statutes because they do not give anyone a veto power
over  a  minors  abortion decision.4  And many  states  currently
employ  this  less restrictive approach.  Because the  State  has
failed to establish that the greater intrusiveness of a statutory
scheme  that  requires  parental consent,  rather  than  parental
notification,  is necessary to achieve its compelling  interests,
the Parental Consent Act does not represent the least restrictive
means  of achieving the States interests and therefore cannot  be
sustained.
II.  FACTS AND PROCEEDINGS
          In  1997  the  Alaska  Legislature  passed  the  Alaska
Parental  Consent  Act  (PCA).5  The PCA prohibits  doctors  from
performing an abortion on an unmarried, unemancipated woman under
17   years   of   age  without  parental  consent   or   judicial
authorization.6   The Act subjects doctors who knowingly  perform
abortions  on  minors  without the required consent  or  judicial
authorization  to  criminal prosecution.7  The  parental  consent
requirement  can be met through written consent  from  a  parent,
guardian,  or custodian of the minor.8  The Act also  includes  a
judicial bypass procedure whereby 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.9   If  the court fails to hold a hearing  within  five
business  days after the complaint is filed, the courts  inaction
is  considered  a  constructive order authorizing  the  minor  to
consent to terminate the pregnancy.10
          On   July  25,  1997,  Planned  Parenthood,  Drs.   Jan
Whitefield and Robert Klem, and ten unidentified Jane Does  filed
          a complaint in superior court seeking declaratory and injunctive
relief.   The  complaint  alleged that  the  PCA  violates  state
constitutional  rights  to  privacy, equal  protection,  and  due
process.   On January 7, 1998, the plaintiffs filed a motion  for
summary  judgment.   The  superior  court  granted  that  motion,
concluding that the PCA violates the equal protection  clause  of
the  Alaska Constitution.  The superior court also concluded that
the privacy clause of the Alaska Constitution protects minors  as
well  as  adults.   However, in light  of  its  equal  protection
ruling,  the  superior  court  did not  decide  whether  the  PCA
violates the Alaska Constitutions privacy clause.
          The State appealed, and on November 16, 2001, we issued
our  decision  in  Planned Parenthood  I.11   In  that  case,  we
concluded  that  the  privacy clause of the  Alaska  Constitution
extends  to  minors  as well as adults and  that  the  State  may
constrain a pregnant minors privacy right only when necessary  to
further  a  compelling  state  interest  and  only  if  no   less
restrictive  means  exist to advance that  interest.12   We  also
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
          On October 4, 2002, prior to the evidentiary hearing on
remand,  the  plaintiffs again moved for summary  judgment,  this
time arguing that the PCA violates the constitution by failing to
exclude  abortions performed in medical emergencies.  On  January
2,  2003,  the  superior  court denied  the  motion  for  summary
judgment.
          From  January 6 to January 24, 2003, the superior court
held   a   bench   trial   to   hear   evidence   regarding   the
constitutionality of the PCA.  On October 13, 2003, the  superior
court  issued  a  decision  on remand holding  that  the  PCA  is
unconstitutional  because  it fails to further  compelling  state
interests  using  the  least  restrictive  means  available.   On
January  7,  2004, the superior court entered judgment  declaring
that the PCA was unconstitutional under the equal protection  and
privacy  clauses  of the Alaska Constitution  and  enjoining  the
State from enforcing the Act.
          The  State  now  appeals the superior courts  judgment.
The  plaintiffs cross-appeal the superior courts denial of  their
motion seeking summary judgment based on the absence of a medical
emergency exception.
III. STANDARD OF REVIEW
          We  review  the  superior courts factual determinations
for  clear error.14  We review constitutional questions de  novo,
adopting  the most persuasive rule of law in light of  precedent,
reason,  and  policy.15   We uphold a statute  against  a  facial
constitutional  challenge if despite any occasional  problems  it
might  create in its application to specific cases, [the statute]
has a plainly legitimate sweep.16
IV.  DISCUSSION
          Under our case law, we begin our analysis in cases such
as  the  one  at hand by measuring the weight and  depth  of  the
individual right at stake so as to determine the proper level  of
          scrutiny with which to review the challenged legislation.17  If
this  individual  right proves to be fundamental,  we  must  then
review  the challenged legislation strictly, allowing the law  to
survive  only  if  the State can establish  that  it  advances  a
compelling  state  interest  using the  least  restrictive  means
available.18  In cases involving the right to privacy, the precise
degree  to which the challenged legislation must actually further
a  compelling state interest and represent the least  restrictive
alternative  is  determined, at least in part,  by  the  relative
weight  of  the  competing rights and interests.19   As  we  have
previously  explained,  the rights to  privacy  and  liberty  are
neither  absolute  nor  comprehensive . . .  [and]  their  limits
depend on a balance of interests.20
     A.   The Individual Right at Stake Is Fundamental.
          The  plaintiffs  assert  that the  PCA  burdens  minors
fundamental right to privacy under article I, section 22  of  the
Alaska Constitution.21  This section of the constitution maintains
that [t]he right of the people to privacy is recognized and shall
not  be  infringed.  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.22
Because  this  right to privacy is explicit, its protections  are
necessarily  more robust and broader in scope than those  of  the
implied federal right to privacy.23
          Included   within  the  broad  scope  of   the   Alaska
Constitutions  privacy  clause  is  the  fundamental   right   to
reproductive choice.  As we have stated in the past,  few  things
are  more  personal than a womans 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.24  Of
course, our original decision concerning the fundamental 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,25
its reasoning was and continues to be as applicable to minors  as
it  is to adults.26  Thus, in Planned Parenthood I, we explicitly
extended  the fundamental reproductive rights guaranteed  by  the
privacy clause to minors.27
          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
     B.   The States 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.29  We agree with  the
State that these are compelling interests.
            Although the Alaska Constitution extends the right to
          privacy in equal measure to both minors and adults, it is not
blind  to  the  unique vulnerabilities and needs  that  accompany
minority.   As we noted in Planned Parenthood I, state  interests
that  are inapplicable to adults may sometimes be compelling with
regard to minors.30  And this is certainly the case with regard to
the  States asserted interest in protecting minors from their own
immaturity.   Lacking in experience, perspective,  and  judgment,
minors often do not possess the capacity to make informed, mature
decisions,  and are therefore susceptible to a host  of  pitfalls
and dangers unknown in adult life.31  As we have recognized in the
past, the State has a special, indeed compelling, interest in the
health,  safety,  and  welfare of  its  minor  citizens  and  may
properly  take affirmative steps to safeguard minors  from  their
own immaturity.32
          Insofar as and to the same extent that the State has an
interest in protecting minors, so too does it have an interest in
aiding  parents  to  fulfill their parental  responsibilities.  A
minor  child  is  not [a] mere creature of the state,33  and  the
affirmative process of teaching, guiding, and inspiring34 a minor
child  is,  in  large part, beyond the competence  of  impersonal
political  institutions.35  Parents, therefore, have an important
guiding  role  to  play  in the upbringing of  their  children.36
Indeed,  it is the right and duty, privilege and burden,  of  all
parents  to  involve  themselves in  their  childrens  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.37   We  thus
echo the United States Supreme Courts statement that, [u]nder the
Constitution, the State can properly conclude that parents . .  .
who  have  [the] primary responsibility for childrens  well-being
are  entitled  to the support of laws designed to  aid  [in  the]
discharge of that responsibility. 38
     C.   The PCA Is Not the Least Restrictive Means of Achieving
          the States Compelling Interests.
          
          Having  identified and weighed the rights and interests
at  stake, we now turn to the task of assessing whether  the  PCA
advances   the  States  compelling  interests  using  the   least
restrictive means available.
          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  Acts 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  Acts  provisions
constitute  the  least restrictive means of pursuing  the  States
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
childrens abortion decisions.39  This veto power does not  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 minors 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  used  legislative
alternative  that  does  not  shift a  minors  right  to  choose:
parental notification.
          Currently,  fifteen  states have parental  notification
statutes  in  place.40   Although the precise  details  of  these
statutes  vary,  they  all  prohibit minors  from  terminating  a
pregnancy until their parents have been notified and afforded  an
appropriate  period  of  time to actively involve  themselves  in
their minor childrens decision-making processes.41  Stated another
way,  these statutes seek to involve parents, not by giving  them
veto  power,  but by giving them notice and time to consult  with
and  guide  their daughters through this important decision.   As
such,  although parental notification statutes undoubtedly burden
the privacy rights of minors, they do not go so far as to shift a
portion of those rights to parents.
          Of  course,  as the dissent emphasizes,  the  PCA  does
include a judicial bypass procedure through which some minors may
effectively regain the right to reproductive choice by  obtaining
judicial  authorization to forgo parental consent.42   The  State
argues  that  judicial bypass is the means by which  a  girl  can
relieve  herself of the burden of parental consent. (Emphasis  in
original.)   But  the  State  and its supporting  amici  fail  to
effectively  rebut  the  trial courts  express  findings  to  the
contrary.   According to the superior courts findings,  the  PCAs
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.  The State has not expressly
challenged  as clearly erroneous the superior courts findings  on
this  point  but dismisses these concerns, arguing  that  [r]ural
Alaskan  girls will pursue bypass on the same trip  to  the  same
urban  location  where they must go to obtain  their  procedures.
But  not  all  minors possess the wherewithal to  embark  upon  a
formal legal adjudication during a time of crisis.
          Moreover,   the  inclusion  of  this  judicial   bypass
procedure does not reduce the restrictiveness of the PCA relative
to  a  parental  notification statute.  Every state  to  enact  a
parental  notification  regime has  opted  to  include  either  a
judicial  bypass  procedure similar to the PCAs procedure  or  an
even  more  permissive bypass procedure.43   As  such,  the  PCAs
inclusion  of a judicial bypass procedure does not  set  the  PCA
apart  from  or  reduce  its intrusiveness relative  to  parental
notification statutes.
          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  PCAs
benefits  as  flowing  directly from  the  parental  veto  power;
instead,  it  has consistently suggested that the  PCAs  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 girls 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.
          These  expressed legislative goals  increased  parental
communication, involvement, and protection  are no less likely to
accompany  parental  notification than the parental  veto  power.
The  dissent suggests that where a minor forgoes judicial bypass,
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
          Notification  statutes protect minors by enhancing  the
potential   for  parental  consultation  concerning  a   [minors]
decision.45   In  fact, to the extent that  parents  who  do  not
possess a veto power over their minor childrens abortion decision
have  a greater incentive to engage in a constructive and ongoing
conversation  with  their  minor  children  about  the  important
medical, philosophical, and moral issues surrounding abortion,  a
notification  requirement may actually better  serve  the  States
compelling interests.
          In  sum  then,  the  PCA does not represent  the  least
restrictive means of achieving the States asserted interests  and
therefore cannot be sustained.  In reaching this decision, we  go
no  further  than  the  Alaska Constitution demands,  and  merely
reaffirm that the State does not strike the proper constitutional
balance  between its own compelling interests and the fundamental
rights  of  its citizens by adopting an unnecessarily restrictive
statute.
V.   CONCLUSION
          For  the reasons detailed above, we AFFIRM the superior
courts  decision  striking down the Parental  Consent  Act  as  a
violation of the Alaska Constitutions right to privacy.
CARPENETI,   Justice,   with  whom  MATTHEWS,   Justice,   joins,
dissenting.
          In  1997, faced with competing interests of the highest
constitutional  level  an underage pregnant girls  constitutional
right  to privacy in deciding whether to terminate her pregnancy,
her  parents constitutional right (and duty) to protect her  best
interests,  and  the  states compelling interests  in  protecting
children  against  their own immaturity  the  Alaska  Legislature
carefully crafted the Alaska Parental Consent Act in an effort to
recognize and protect all of these interests.  That law is  fully
consistent with United States Supreme Court precedent, yet todays
opinion  strikes it down.  Because this courts rejection  of  the
legislatures thoughtful balance is inconsistent with our own case
law  and  unnecessarily dismissive of the  legislatures  role  in
expressing the will of the people, I respectfully dissent.
I.   The Constitutional Framework
          Before looking at the Parental Consent Act in detail to
determine   how  it  balances  the  strong  competing   interests
involved, it is helpful to consider the analytical framework used
by  courts  in  deciding constitutional challenges  of  the  kind
involved in this case.  In a series of cases, we have established
a  three-step  process.  We have first looked to the  nature  and
extent  of the individual right that is claimed.  If we determine
that the right is fundamental, we then examine whether the states
interest in burdening the individual right is compelling.  If the
states interest is compelling, we look to make certain that there
is  a sufficiently close fit between the goals of the legislation
and the means adopted by the state to reach those goals.
          The  individual  right claimed  in  this  case  is  the
fundamental  right of an unmarried pregnant minor to  privacy  in
her  decision whether to terminate her pregnancy.  The compelling
interest   claimed  by  the  state  is  multi-faceted,  including
protecting  minors from their own immaturity (by recognizing  the
parents right (and duty) to guide their childrens upbringing) and
protecting the health of minors.  If both the individual right is
fundamental and the states interest is compelling, the court must
decide whether the law is tailored closely enough to achieve  its
intended purpose.
II.  The Alaska Parental Consent Act
          The hallmark of the Alaska Parental Consent Act (PCA or
the  Act) is the remarkable length to which the legislature  went
in  order  to  accommodate  all of  the  various,  and  at  times
competing, interests that are involved when an unmarried  teenage
(or  pre-teen) girl is faced with pregnancy.1  In recognition  of
the  primary role that parents are normally expected to  play  in
the  upbringing of their children, and in recognition of the fact
that  children are generally not considered competent to  consent
to  medical procedures, the Act requires the consent of a  parent
in  order  for the child to undergo an abortion.2  In recognition
of  the  fact that divulging her pregnancy to her parents may  in
some instances be unnecessary or inappropriate  because the minor
is  sufficiently mature and intelligent to decide the question on
her  own  or  because  her  parent or  parents  have  engaged  in
physical,  sexual,  or emotional abuse against  her  (or  because
          obtaining their consent is otherwise not in the childs best
interests)   the  Act  provides for  a  confidential  and  speedy
judicial  bypass procedure in which a judge decides  whether  the
minor is competent to decide for herself.3
          The  legislature engrafted multiple exceptions  to  the
scope  of  the  Act  in  an  effort to  create  a  law  that  was
specifically  targeted, to the greatest extent possible,  at  the
population  of underage pregnant girls who would be  in  greatest
need  of  adult  guidance  in reaching the  decision  whether  to
terminate  pregnancy.  First, the legislature exempted  from  the
scope  of  the Act all seventeen-year-old girls.4  The importance
of this exemption can hardly be overstated.  Studies consistently
show  that nearly half of all underage abortions are obtained  by
girls who have reached the age of seventeen.5  Moreover, only one
state  consent law exempts seventeen-year-olds from  its  scope,6
and  only  one  state notification law does so.7  This  exception
also  identifies  the  population of teenage  girls  most  likely
competent,  by  virtue of maturity and experience,  to  make  the
decision regarding abortion without adult assistance, and  allows
them to do so.
          Second, the legislature exempted from the scope of  the
Act four additional classes of minors.  Each exemption shows that
the  legislature  was attempting to shape a  law  that  would  be
applied only to those pregnant girls who would most be in need of
adult  help.   Accordingly, the law does  not  apply  to  married
minors,8 to minors who have been legally emancipated,9 to  minors
who  have entered the armed services of the United States,10  and
to minors who have become employed and self-subsisting.11
          Third,  in an apparent effort to make certain that  the
Act  would  not  have coverage over any other  underage  pregnant
girls  who were capable of making the decision on their own,  the
legislature  included a catch-all exception to the Act:  any  who
had  otherwise  become independent from the care and  control  of
[her] parent, guardian, or custodian.12
          The   legislature   next  created  a  judicial   bypass
procedure to cover those cases of underage pregnancy not  covered
by  these  exceptions.  The judicial bypass procedure is designed
to  be confidential, speedy, cost-free to the child, and easy  to
use.   The court system is directed to prepare forms for  use  by
the  child13  without charge14 and have them available  at  every
court location in the state: superior court, district court,  and
magistrate.15   Counsel  shall  immediately  be  made   available
without  charge to any minor who seeks judicial bypass16 and  the
forms  shall  contain this notification.17  There are  no  filing
fees  to  be charged18 and no court costs assessed19 against  the
child.
          The   proceedings  surrounding  judicial   bypass   are
strictly  confidential:  Courts are  instructed  to  conduct  all
proceedings  so  as  to preserve the anonymity  of  the  child.20
Moreover, the Act specifically directs the court that it may  not
notify the parents, guardian, or custodian of the child that  she
is  pregnant  or  seeks an abortion.21  All  papers  and  records
pertaining to the matter shall be kept confidential and  are  not
public records under Alaska law.22
          In  deference to the need for speedy resolution of  the
consent  question in cases where an abortion is sought,  the  Act
provides for extremely short timelines.  The court is directed to
set  the  hearing at the earliest possible time and in any  event
not  more than five business days after the complaint is filed.23
The  court  is directed to enter judgment immediately  after  the
hearing is ended.24  If the hearing is not held by the fifth  day
after the case is filed, that failure will be considered to be  a
constructive authorization by the court for the child to  consent
to   an  abortion.25   Similarly  short  deadlines  apply  to  an
appeal.26
          As  to the substance of the inquiry that the judge must
make,  it  is  straightforward and simple:  The court  determines
whether the child is sufficiently mature and informed to make the
decision to have an abortion.27  (In those cases where the  minor
has alleged abuse by her parent or guardian, the court determines
whether such abuse has occurred.28)  If the child is sufficiently
mature  to  make  the decision (or if abuse has occurred  and  an
abortion  is  in the minors best interest), the court  authorizes
her  to consent to an abortion; if she is not sufficiently mature
to  decide on her own or if there has not been abuse, the case is
dismissed.29
          In  sum, the Alaska Parental Consent Act appears to  be
the  product  of  a concerted effort to make certain  that  those
pregnant  girls who are sufficiently mature to make the  decision
to  obtain  an abortion on their own are allowed to do  so  while
those  who  are not sufficiently mature either obtain  a  parents
consent   or,  in  the  case  of  parental  abuse,   a   judicial
determination that the procedure is in their best interest.
III. Analysis
          Application    of    the    three-part     test     for
constitutionality  (set  out  above  in  the  discussion  of  the
constitutional framework) has tended in this case to focus on the
third  part  of  the  test:  whether  the  means  chosen  by  the
legislature  are sufficiently narrowly tailored to the  goals  of
the legislation.  I agree that this inquiry is the most difficult
in this case.  But I also believe that failure to focus carefully
on  the nature of the interests involved can lead to a failure to
assess correctly the success of the legislatures effort to tailor
the  legislation to meet its goals.  For this reason, I turn  now
to each step of the test for constitutionality.
     A.    The  Individual  Right  To Exercise  Autonomy  in  the
Control of Ones
          Body,   and  in  the  Choice  to  Bear  a   Child    Is
Fundamental.
          The individual right involved in this case is the right
to  privacy.   While  that  right is often  associated  with  the
maintenance  of  secrecy or confidentiality with regard  to  ones
affairs  (and that is present to some extent in this  case),  the
gravamen of the individuals concerns in this case is the right to
exercise  autonomy  in  the control  of  ones  body.   In  Valley
Hospital Association v. Mat-Su Coalition for Choice,30 we  relied
on  the  need  for a woman to have control of her body,  and  the
choice  whether  or when to bear children,31 in determining  that
          reproductive rights are fundamental, and that they  are
encompassed within the right to privacy.32
          But  it  is important to remember that Valley  Hospital
concerned  the rights of adult women.  Todays opinion  relies  on
the  courts statement in its earlier decision in this  case  that
minors  and  adults start from the same constitutional footing,33
but it does not meet the promise of that earlier opinion fully to
take  into account the fact that the persons to whom the  statute
in   this  case  is  directed  are  children.   In  holding  that
[c]onstitutional  rights  do  not  mature  and  come  into  being
magically  only  when  one  attains  the  state-defined  age   of
majority,34  the courts earlier opinion in this case hastened  to
add:
                    Of  course this does not  mean
               that   evidence  of  the   peculiar
               vulnerability  of  children   [and]
               their  inability to  make  critical
               decisions  in  an informed,  mature
               manner  has no place in determining
               whether  the  parental  consent  or
               judicial   authorization   act   is
               constitutional.  To  the  contrary,
               we  have long emphasized the states
               special interest in protecting  the
               health and welfare of children.[35]
               
The  opinion  then  explained how this peculiar vulnerability  of
children  was  to  be  taken into account in  the  constitutional
analysis:  [A]  statutes  relationship  to  minors  properly   is
employed in the constitutional calculus in determining whether an
asserted state purpose or interest is compelling. 36  Indeed,  in
support  of  its  conclusion that minors enjoy  a  constitutional
right  to  privacy similar to that of adults, this  court  quoted
Justice Marshalls dissent in H.L. v. Matheson37 that, rather than
saying the minors privacy right is somehow less fundamental  than
an  adults,  the  more  sensible view  is  that  state  interests
inapplicable to adults may justify burdening the minors  right.38
But  when the court looks to the states and parents interests  in
this  case,  it  treats  them in conclusory  fashion.   A  fuller
exposition is warranted.
     B.    The  States Interests  To Protect Children from  Their
Own       Immaturity and To Protect Parents Rights and Duties  To
Raise Their         Children  Are Compelling.
          Despite  the promise of Planned Parenthood  I  to  take
into account the fact that children are involved during step  two
of  the  constitutional analysis  the step that asks  whether  an
asserted  state  purpose or interest is compelling     the  court
today quickly passes over this step.
           The  courts  cursory discussion of the nature  of  the
states compelling interests at stake in this case is inconsistent
with  our case law on the right to privacy; moreover, it deprives
the  courts later means-to-ends analysis of any context.  Let  us
consider each of these failings in turn.
          In  Sampson  v. State,39 a privacy-based  challenge  to
          Alaska law precluding physician-assisted suicide, we set out the
importance  of  carefully examining the nature of  the  competing
interests  involved.  In upholding the ban on  physician-assisted
suicide, we said:
                    This     court    has    often
               emphasized   the   importance    of
               personal    autonomy   under    our
               constitution.   Yet  we  have  also
               recognized  that  the   rights   to
               privacy  and  liberty  are  neither
               absolute  nor  comprehensive   that
               their limits depend on a balance of
               interests.   The  nature   of   the
               balance  varies with the importance
               of      the     rights     actually
               infringed.[40]
Because  the nature of the balance varies with the importance  of
the rights involved and because in the context of the case before
us now  pregnant children who are considering abortion  there are
important  rights  on both sides of the equation,  including  the
rights  of  parents to guide their children, it  is  particularly
important that the court look closely at the nature of the states
interests in the legislation.
          The courts failure to look closely at the nature of the
states  and  parents interests leaves its constitutional  balance
one-sided.   Because the court has not fully and  accurately  set
out the nature of  societys compelling interest in the protection
of  children  and  of  parents right  and  duty  to  raise  their
children, it is impossible to accurately gauge how close the  law
comes  to  meeting  its objectives.  As a detailed  look  at  the
states interest shows, it is multi-faceted and is served in  many
ways  by  Alaskas Parental Consent Law.  It consists of at  least
two41 separate aspects.
          First, society has longstanding and pervasive interests
in  protecting  children from their own immaturity.   The  United
States  Supreme Court has repeatedly recognized societys interest
in  protecting children from their own immaturity.  In Hodgson v.
Minnesota,42  the  Court  held:  The  State  has  a  strong   and
legitimate  interest in the welfare of its young citizens,  whose
immaturity,  inexperience,  and lack of  judgment  may  sometimes
impair  their  ability  to exercise their rights  wisely.43   The
Court  noted  that [t]hat interest, which justifies state-imposed
requirements  that  a  minor obtain his or  her  parents  consent
before  undergoing  an operation, marrying, or entering  military
service,  extends  also to the minors decision to  terminate  her
pregnancy.44  In Stanford v. Kentucky,45 Justice Brennan noted:
               [M]inors  are  treated  differently
               from  adults  in  our  laws,  which
               reflects  the simple truth  derived
               from   communal   experience   that
               juveniles as a class have  not  the
               level     of     maturation     and
               responsibility that we  presume  in
               adults  and consider desirable  for
               full  participation in  the  rights
               and duties of modern life.
                      .  .  . Adolescents are more
               vulnerable,  more  impulsive,   and
               less  self-disciplined than adults,
               and  are  without the same capacity
               to  control  their conduct  and  to
               think in long-range terms.[46]
               
          State  courts  too have long recognized  that  children
require protection from their own immaturity.  Pennsylvania,  for
example,  has noted that the states strong interest in protecting
younger  minors  from the sexual aggressiveness  of  minors  over
sixteen  is based on the immaturity and poor judgment of  younger
minors.47  Similarly, Florida upheld a law prohibiting consensual
sexual  contact between minors sixteen and older and those  under
thirteen   because  the  state  had  a  compelling  interest   in
protecting  twelve-year-olds from older teenagers and from  their
own immaturity in choosing to participate in harmful activity.48
          As  Justice  Matthews set out in  his  dissent  in  our
earlier consideration of this case, Planned Parenthood I:
                    Childrens  freedoms have  long
               been constrained in ways that would
               not   be  permissible  for  adults.
               Constraints on children are imposed
               in   order  to  protect  them,  and
               sometimes society as a whole,  from
               the     consequences    of    their
               immaturity.  Thus children may  not
               exercise  the fundamental right  to
               vote.  They generally may not  make
               contracts  or  smoke cigarettes  or
               drink   alcoholic   beverages    or
               consent   to   sexual  intercourse.
               Without a parents consent they  may
               not  become licensed drivers or get
               married  or obtain general  medical
               or   dental   treatment.    Alaskas
               parental  consent/judicial   bypass
               act  is  in the tradition of  these
               constraints on childrens  freedoms.
               .  .  .   The  act is  designed  to
               ensure  that  each  child  makes  a
               decision that is best for her.[49 ]
               
          The notion that parental consent laws further the state
interest  of protecting minors from their immaturity  is  neither
novel nor surprising.  As a matter of law society demands much of
parents;  it is expected that they will assist their children  in
making  proper  decisions until those children  reach  adulthood.
Parents  of teenagers and younger children are familiar with  the
ubiquitous  permission slips which must be  signed  before  their
children  may go on a school field trip; and parental  permission
is  routinely  required before minors may  join  a  sports  team,
          before an under-seventeen minor may view an R-rated  movie, and
before  a  minor  may  even  lift weights  at  the  local  gym.50
Parental  involvement in the everyday decisions of their children
enables parents to continue to help their children develop,  even
as  the children grow older and more independent.  The rights and
obligations of parents to remain involved is intricately bound up
with  the  rights  of  children to receive  guidance  and  to  be
protected from their own immaturity.  Courts have long recognized
these  interests: [T]he custody, care and nurture  of  the  child
reside  first in the parents, whose primary function and  freedom
include preparation for obligations the state can neither  supply
nor hinder.51
          For an immature pregnant minor, parental involvement is
at  least  as  important  in  the difficult  decision  concerning
abortion as it is in the permission slip activities mentioned  in
the  last  paragraph.  In Ohio v. Akron Center  for  Reproductive
Health  (Akron  II),52 a case concerning a parental  notification
requirement,  the  United  States Supreme  Court  held  that  the
requirement  furthered the states interest in helping  minors  to
make  more mature decisions.53  Some minors may hesitate to  seek
parental advice if not required to by law because they are  young
and  afraid.   In  those cases where a pregnant  minor  has  been
abused or fears an improper parental response, the PCA carves out
a  judicial  bypass  procedure whereby the minor  may  avoid  all
parental notification.  However, it is improper for this court to
assume  that  harmful  parental responses will  be  a  likely  or
typical  response  for  the  minors compelled  to  seek  parental
consent  under the PCA.  As Justice Kennedy noted  in  Akron  II,
[i]t is both rational and fair for the State to conclude that, in
most  instances, the family will strive to give a lonely or  even
terrified  minor advice that is both compassionate and  mature.54
Indeed, to prohibit states from ensuring that in most cases young
women  receive  guidance from a parent when making this  decision
would  deny  all  dignity  to the family.55   Similarly,  Justice
Stevens  noted  that it is reasonable for a state legislature  to
conclude  that most parents will be primarily interested  in  the
welfare  of  their children, making the imposition of  a  consent
requirement  an  appropriate method  of  giving  the  parents  an
opportunity  to  foster  that  welfare  by  helping  a   pregnant
distressed  child  to  make and implement a  correct  decision.56
Because pregnant minors in Alaska will normally benefit from  the
involvement  of  a  parent in one of the most critical  decisions
they  can  ever  make, the PCA furthers the  state  interests  of
protecting minors from their immaturity and preserving the rights
of parents to raise their children.
          The  PCA  seeks to protect a second compelling interest
in  abortion  cases involving children.  In addition to  societys
interest  in  protecting children from their own  immaturity,  we
have  long  held  that parents have a fundamental  right  in  the
raising of their children. In S.O. v. W.S.,57 we noted that  when
the  state seeks to terminate the parent-child relationship,  the
result may be the involuntary deprivation of the
fundamental  natural right of parents to nurture and  direct  the
destiny of their children.58  S.O. relied on and quoted Turner v.
Pannick,59  in  which  Justice  Dimond,  in  commenting  on  this
fundamental right of parents to nurture and direct the upbringing
of their children, stated: This is a truth which one discovers by
reason,  and  has  the  status  of  knowledge  rather  than  mere
opinion.60   He noted that [the family] forms the basic  unit  of
our  society  and  is  one of the oldest  institutions  known  to
mankind.61
          In sum, the norm in American, and Alaskan, life and law
is  that  parents are a childs first and most important  resource
for  assistance in decision-making.  For that reason, the  states
interest  in protecting children from the consequences  of  their
own  immaturity,  and in so doing protecting the  health  of  its
children, and its interest in supporting parents right  and  duty
to  guide  the  upbringing  of  their  children  is  particularly
compelling.
     C.   The  Fit  Between the States Interests  and  the  Means
          Adopted  To Reach Them Are Sufficiently Close  To  Pass
          Constitutional Muster.
          
          We  now  reach  the  third part of  the  constitutional
analysis.  In order to survive constitutional scrutiny,  the  PCA
must  be  narrowly  tailored  in meeting  the  states  interests.
Because the childs privacy interests are fundamental, there  must
be  no less restrictive alternative available to the state.62  As
the  following shows, the PCA is narrowly tailored to its  goals.
In addition, the alternatives discussed by the superior court and
todays  opinion  are  either more restrictive  than  the  PCA  or
ineffective at meeting the states interests, or both.
          1.   The PCA is narrowly tailored.
          Before  embarking  on  this analysis,  however,  it  is
important to address the majoritys assertion that the PCA bestows
upon  parents what has been described as a veto power over  their
minor childrens abortion decisions.63  Indeed, the claim that the
PCA  gives parents a veto power runs throughout todays Opinion,64
and   this  supposed  veto  power  may  fairly  be  seen  as  the
fundamental  weakness  of the PCA in the courts  view.   But  the
claim  is  false  as  it applies to minors who  are  sufficiently
mature  to make the decision, and it relies on quotation  of  the
United  States Supreme Court taken out of context.  The claim  is
false  because a pregnant minor faced with the abortion  decision
may  decide  to  obtain an abortion without parental  consent  by
using  the judicial bypass procedure.65  The quotation  is  taken
out  of  context because the case it comes from,  Ohio  v.  Akron
Center  for  Reproductive  Health, restated  the  Supreme  Courts
clearly  established precedent that, in order to prevent  another
person  from having an absolute veto power over a minors decision
to  have  an abortion, a State must provide some sort  of  bypass
procedure  if  it  elects to require parental  consent.66   Thus,
todays Opinions repeated assertions that the PCA gives parents  a
veto power over their childs abortion decision is simply not true
as  applied to children who are sufficiently mature to  make  the
decision.   And  its implication that the United  States  Supreme
Court  would  regard the PCA as giving parents a  veto  power  is
equally  wrong: Because the PCA does provide a bypass  procedure,
          the Act  in the language of the Supreme Court  prevent[s] the
parent from holding veto power.
          The  Parental  Consent Act is very  narrowly  drawn  to
achieve  its  compelling state interests.   To  begin,  as  noted
above,  the PCA excludes all seventeen-year-olds.67 We have  seen
that   the   exclusion  of  seventeen-year-olds  is  particularly
noteworthy  because almost half of minor abortions are  performed
on  seventeen-year-old minors,68 and thus by excluding seventeen-
year-olds the legislature almost halved the pool to which the PCA
applies.    We have also seen that this narrowing of  the  minors
covered  by the Act is not arbitrary, but instead is tailored  to
eliminate  those least likely to need the legislation:  the  most
mature of the pregnant minors.
          The  use  of age as a proxy for maturity is fundamental
to  our  legal  system and social culture.  As the Supreme  Court
recently  noted in Roper v. Simmons,69 the difference in maturity
levels  between adults and children is evidenced by  both  common
sense and science:
               [A]s  any parent knows and  as  the
               scientific and sociological studies
               .  .  . tend to confirm, a lack  of
               maturity   and   an  underdeveloped
               sense  of responsibility are  found
               in  youth more often than in adults
               and  are more understandable  among
               the  young.  These qualities  often
               result   in  impetuous   and   ill-
               considered actions and decisions. .
               .  .  Even  the normal  16-year-old
               customarily  lacks the maturity  of
               an  adult. . . . [A]dolescents  are
               overrepresented  statistically   in
               virtually    every   category    of
               reckless  behavior.  In recognition
               of  the comparative immaturity  and
               irresponsibility   of    juveniles,
               almost every State prohibits  those
               under  18 years of age from voting,
               serving   on  juries,  or  marrying
               without parental consent.[70]
               
          Age  distinctions are not made with an expectation that
they  perfectly track maturity.71  All minors under age  eighteen
are prohibited from voting not because it is unfathomable that  a
seventeen-year-old is capable of responsibly exercising the right
to  vote,  nor is the prohibition based upon the assumption  that
all  adults  vote responsibly.  Rather, the legal system  accepts
lack  of  perfection in meeting the states interests in order  to
create a feasible, more convenient, and less intrusive system  of
governance.  As Justice Holmes noted in Louisville Gas & Electric
Co. v. Coleman:
                    When  a  legal distinction  is
               determined,  as no one doubts  that
               it  may be, between night and  day,
                    childhood and maturity, or any
               other  extremes, a point has to  be
               fixed or a line has to be drawn, or
               gradually  picked out by successive
               decisions, to mark where the change
               takes  place. Looked at  by  itself
               without  regard  to  the  necessity
               behind  it the line or point  seems
               arbitrary.  It  might  as  well  or
               nearly as well be a little more  to
               one side or the other. But when  it
               is  seen that a line or point there
               must  be,  and  that  there  is  no
               mathematical  or  logical  way   of
               fixing  it precisely, the  decision
               of the Legislature must be accepted
               unless  we can say that it is  very
               wide of any reasonable mark.[72]
The  Alaska Court of Appeals similarly noted in Allam v.  State73
that  [s]tatutes  [that  set the age for possession  of  tobacco,
possession  of  alcohol, age of consent for  sexual  intercourse,
etc.,]  and the social policy decisions that underlie  them,  are
within  the  province  of  the legislature.  There  is  no  legal
requirement that the same age of majority apply to all activities
and  circumstances.74  By exempting seventeen-year-olds from  the
PCA,  the  legislature appropriately tailored the legislation  to
affect the less mature population of pregnant minors.
          Significantly, this narrowing of the PCA based  on  age
also  makes it less restrictive than every other parental consent
law  but  one75  and less restrictive than all  but  one  of  the
notification laws in effect in other states because all the  rest
apply  to  seventeen-year-olds,76 as  discussed  in  more  detail
below.
          As  noted, the legislature further tailored the PCA  by
excluding   four   additional  categories  of  minors:    legally
emancipated    minors,77   married   minors,78   minors    living
independently,79  and  minors  who  are  members  of  the   armed
services.80  These are hallmarks of maturity in our society.   By
excluding identifiably mature minors age  sixteen and under,  the
legislature went a long way towards assuring that the legislation
would  not be over-inclusive. Furthermore, in these respects  the
PCA is less restrictive than every other states notification laws
that do not contain these exceptions.81
          The  final  narrowing of the PCA is  derived  from  the
judicial  bypass procedure.  Although neither the superior  court
nor  this courts majority analyze the bypass procedure under  the
least  restrictive means test, the judicial bypass  significantly
narrows  the  effect  of the law because it provides  a  way  for
mature  minors  who  are  not otherwise statutorily  exempted  to
obtain an abortion without parental consent.  As Justice Matthews
recognized   in  Planned  Parenthood  I,   the  judicial   bypass
procedure  satisfies all the criteria established by  the  United
States  Supreme  Court  in  Bellotti  v.  Baird.82   Indeed,  the
judicial bypass process was meticulously crafted with the  minors
          need for confidentiality and an expedited decision incorporated
into  the  system.   The  PCA errs on the side  of  granting  the
judicial  bypass whenever delay is threatened:  If  the  superior
court fails to provide a hearing within five business days  of  a
minor  filing  the petition, the delay operates as  an  automatic
finding  in the minors favor, resulting in a constructive  waiver
of the consent requirement.  Similarly, if the minor loses in the
superior  court  and the hearing on appeal is delayed  more  than
five days after the docketing of the appeal, a constructive order
must issue authorizing the minor to undergo the abortion.83
          2.    The PCA is the least restrictive means to achieve
the states               compelling interests.
          The  PCA not only  furthers a compelling state interest
in  a manner narrowly tailored and in compliance with the federal
constitution, but it is also the least restrictive means of doing
so.   The  least restrictive means test is properly  a  difficult
burden  for the state to meet, as it protects fundamental  rights
against  unnecessary  state intrusion.  However,  it  is  not  an
impossible  standard for the state to meet.  A mere showing  that
the  state  might  have taken less restrictive  action,  say,  by
enacting  a  notification statute instead, is not  sufficient  to
defeat   legislation  absent  a  determination  that   the   less
restrictive   action   would  effectively  achieve   the   states
compelling interests.  Indeed, the least restrictive action  that
a state may take in every case is not to legislate at all.
          In  Treacy v. Municipality of Anchorage,84 in upholding
the  constitutionality  of an Anchorage  curfew  law  imposed  on
minors  under  age  eighteen, we found proposed less  restrictive
alternatives to be unavailing because they were not effective  in
meeting  the  municipalitys compelling interests.85  Alternatives
to  the PCA which are less restrictive are therefore not bars  to
the constitutionality of the legislation unless such alternatives
are effective in meeting the states compelling interests.
          Todays  opinion repeatedly proffers the alternative  of
parental  notification rather than parental consent, (an approach
followed  by  only fifteen state legislatures86 in comparison  to
the  twenty-six  state legislatures87 that have  adopted  consent
statutes88).
          But  every one of these parental notification  statutes
that  lacks  exceptions for seventeen-year-olds and other  mature
minors is more restrictive than Alaskas PCA.89  More importantly,
such  parental  notification statutes fail to  achieve  the  same
goals as consent laws, as discussed below.
          The majority enthusiastically adopts the notion that  a
notice  statute is less restrictive than the PCA because it  does
not  give parents a veto power.  But as shown above, the PCA does
not  create  a  veto power because it includes a judicial  bypass
provision.  Moreover, the United States Supreme Court has  upheld
a    parental  consent  statute  containing   a  judicial  bypass
procedure  but fewer statutory exceptions than those included  in
Alaskas  PCA.90   Indeed, as Justice Matthews  noted  in  Planned
Parenthood  I,  [c]urrently it appears that all  members  of  the
United States Supreme Court believe that a judicial authorization
procedure  that meets the conditions of the second Bellotti  case
          as the PCA does  is constitutional.91  In Akron II, which todays
opinion cites to support its conclusion that notice statutes  are
less  restrictive  than consent statutes, the Court  limited  its
distinction  between  consent and notification  statutes  to  the
central requirement that in order to prevent another person  from
having  an absolute veto power over a minors decision to have  an
abortion,  a State must provide some sort of bypass procedure  if
it elects to require parental consent.92  The PCA provides such a
procedure: judicial bypass.
          Indeed,  notification laws may present the  worst  case
scenario  by posing all the risks of privacy infringements  of  a
consent/bypass  statute  with fewer of  its  mitigating  effects.
What   could  be  further  from  the  productive  and  supportive
conversation that a consent statute aims to produce than the cold
reality of parents receiving (perhaps after the abortion) a  note
in  the  mail  informing  them of their daughters  pregnancy  and
decision  to abort?  It is certainly reasonable for a legislature
to  conclude  that  consent statutes are more  likely  to  foster
actual conversations and parental involvement rather than the one-
way,  limited  flow  of information called  for  in  notification
statutes.   Thus,  the existence of notification  statutes  in  a
minority  of  states should not lead to invalidation  of  Alaskas
consent  statute  unless it is clear that a notification  statute
would further the states compelling interests.
          3.   The  legislature  could reasonably  conclude  that
               parental notification statues are not effective in
               protecting  a  pregnant  girl  against   her   own
               immaturity or in protecting her parents right  and
               duty to aid in her upbringing.
          Despite   todays  Opinions  rosy  assertion  that   all
[notification  statutes]  prohibit  minors  from  terminating   a
pregnancy until their parents have been notified and afforded  an
appropriate  period  of  time to actively involve  themselves  in
their  minor childrens decision-making processes,93 it  is  truly
questionable   whether  many  notification  statutes   accomplish
anything in the way of meaningful parental notification.  Many do
not even require that a parent be notified.
          Thus, Delaware, identified by the majority opinion as a
notification  state,  allows notification of  a  licensed  mental
health  professional  to substitute for parental  notification.94
Maryland,  ostensibly  another  notification  state,  allows  the
physician  performing the abortion to dispense with  notification
to  the childs parent if in the physicians judgment the child  is
mature  and capable of giving informed consent or if notification
would  not  be in her best interests.95   West Virginia,  another
notification state, allows the physician performing the  abortion
to  dispense with notification if another doctor finds the  child
mature   enough  to  make  the  decision  for  herself  or   that
notification would not be in her best interests.96  In all states
the waiting period is so short that in many instances it will  be
largely  meaningless.97  Can it really be said that a requirement
that  written notification be sent to a childs parent, along with
the  presumption  that notice is effective upon  mailing  and  no
waiting  period (e.g., Maryland98) or a twenty-four hour  waiting
          period (e.g., West Virginia with actual notice99) or even a forty-
eight  hour waiting period (e.g., West Virginia with constructive
notice100),  would  in  any way further the  states  interest  in
protecting the child against her immaturity and lack of  judgment
or  protect the parents role in helping to raise their child?  It
often  will be, in truth, little more than a note sent  into  the
night.
          The  court asserts that the states compelling interests
(it  refers to them only as legislative goals) are no less likely
to  accompany parental notification than parental veto power. 101
Of  course, as we have seen, there is no veto power in  the  PCA.
But   more  importantly,  only  wishful  thinking  supports  that
conclusion.   How can a statute that does not even  require  that
parents be notified  as in Delaware, which allows notification of
a  mental health professional  enhance the potential for parental
consultation?   Or a statute that deems notice  to  be  effective
upon mailing and requires no waiting period or only a twenty-four
hour  waiting period?  The court optimistically talks  of  giving
[parents]  notice  and  time  to consult  with  and  guide  their
daughters  through this important decision,102 but  this  is  not
what notification statutes do.  The longest waiting period in any
current  notification statute  measured from the time of  mailing
of  the  notice  is seventy-two hours.103  Most are substantially
shorter.104   Under these circumstances, to conclude,  as  todays
Opinion  does,  that  a notification statute  provides  a  better
chance  than  a  consent statute that parents will  engage  in  a
constructive  and ongoing conversation with their minor  children
about  the  important medical, philosophical,  and  moral  issues
surrounding  abortion105  is truly wishful  thinking.   At  least
under  a  consent  statute, where the  child  opts  not  to  seek
judicial  bypass,  there  must  be  a  conversation.    Under   a
notification  statute, where the child opts not to seek  judicial
bypass,  there  is  only a mailing.  There is  little  reason  to
believe  that  notification statutes are effective in  protecting
minors  from  their  own  immaturity or effective  in  protecting
parents rights (and duties) to help their children negotiate  the
difficult path to adulthood.
          We  should heed our admonition in Treacy:  In analyzing
the  argument  that  a  legislative solution  is  not  the  least
restrictive one, courts must take care to require the  challenger
to  demonstrate that the supposedly less restrictive  alternative
is  actually  effective in protecting the  states  (and  parents)
compelling  interests.  The court today  fails  to  show  that  a
notification   statute   will  achieve  the   States   compelling
interests.   This is because, as we have seen, notification  laws
are ineffective in so many ways in protecting children from their
immaturity  and  in protecting parents rights and obligations  to
guide  their  childrens upbringing.  And todays opinion  declines
even  to  say whether a parental notification approach  would  be
constitutional.
IV.  Conclusion
     The Alaska Legislature carefully balanced the constitutional
right  of  an  underage pregnant girl to privacy and  the  states
compelling  interests in protecting children  against  their  own
     immaturity and protecting parents constitutional right (and duty)
to  guide  their children to maturity.  Because the  PCA  is  the
least restrictive alternative which will effectively advance  the
states   compelling   interests  while  protecting   the   childs
constitutional  right,  we should hold that  the  superior  court
erred in invalidating it.  I respectfully dissent.
_______________________________
     1     State,  Dept  of  Health  &  Soc.  Servs.  v.  Planned
Parenthood of Alaska, 28 P.3d 904, 906 (Alaska 2001) (noting that
we do not decide philosophical questions about abortion which we,
as a court of law, cannot aspire to answer).

     2     State v. Planned Parenthood of Alaska, 35 P.3d 30,  41
(Alaska 2001) (Planned Parenthood I).

     3     Ohio  v. Akron Ctr. for Reproductive Health, 497  U.S.
502,  511 (1990) (citing H.L. v. Matheson, 450 U.S. 398, 411 n.17
(1981)).

     4    Id.

     5    Ch.14,  1-10, SLA 1997.

     6    AS 18.16.010(a)(3); AS 18.16.020.

     7     AS 18.16.010(c).  The Act provides the doctor with  an
affirmative  defense  to prosecution and  civil  liability  where
compliance  with  the Act was not possible because  an  immediate
threat  of  serious risk to the life or physical  health  of  the
pregnant  minor from the continuation of the pregnancy created  a
medical  emergency  necessitating the  immediate  performance  or
inducement  of an abortion.  AS 18.16.010(g).  We note  that  the
superior  court  interpreted  this statutory  language  as  broad
enough to contain[] an appropriate medical emergency exception.

     8    AS 18.16.020(1).

     9    AS 18.16.030.

     10     AS  18.16.030(c).  Similar time limits apply to  this
courts  consideration of a minors appeal from a denied  petition.
AS 18.16.030(j).

     11    35 P.3d 30 (Alaska 2001).

     12    Id. at 41.

     13    Id. at 46.

     14    Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003).

     15     Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
(Alaska 2004).

     16    Id. at 260 n.14.

     17    Ravin v. State, 537 P.2d 494, 497 (Alaska 1975).

     18    Planned Parenthood I, 35 P.3d at 41.

     19    Cf. Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).

     20    Id.

     21    Because we conclude that the PCA violates the right to
privacy  under the Alaska Constitution, we need not  address  the
plaintiffs  arguments  that  the  Act  also  violates  the  equal
protection   clause  or  that  the  superior   court   erred   in
interpreting the Act to include a medical emergency exception.

     22    Luedtke v. Nabors Alaska Drilling Inc., 768 P.2d 1123,
1129  (Alaska 1989)  (quoting Woods & Rhode, Inc. v. State,  Dept
of Labor, 565 P.2d 138, 148 (Alaska 1977)).

     23      See  Ravin,  537  P.2d  at  514-15  (Boochever,  J.,
concurring) (reasoning that [s]ince the citizens of Alaska . .  .
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).

     24     Valley Hosp. Assn v. Mat-Su Coalition for Choice, 948
P.2d 963, 968 (Alaska 1997) (internal quotations omitted).

     25      Planned  Parenthood  I,  35  P.3d  at  40  (internal
quotations omitted).

     26     Id.  (noting that [d]eciding 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).

     27    Id.

     28     The  dissent  appears to liken a minors  decision  of
whether  to  terminate a pregnancy to decisions  about  attending
school field trips, joining sports teams, viewing R-rated movies,
and  lifting weights at the gym.  But this analogy overlooks  the
fundamental autonomy at stake in an adolescents control over  her
own  body.   And  in other important ways, a minors  decision  to
terminate  a  pregnancy  is wholly unlike  these  decisions   the
immediacy of the need to address the situation, coupled with  the
lasting  and  profound  consequences of  the  decision,  make  it
utterly unlike the day-to-day decisions mentioned by the dissent.

     29    More specifically, the State asserts that the PCA aims
to (1) ensure that minors make an informed decision on whether to
terminate  a  pregnancy;  (2)  protect  minors  from  their   own
immaturity; (3) protect minors physical and psychological health;
(4)  protect  minors  from sexual abuse; and (5)  strengthen  the
parent-child relationship.

     30     35  P.3d  at  41 (quoting Am. Acad. of Pediatrics  v.
Lungren,  940 P.2d 797, 819 (Cal. 1997)) (stating that a statutes
relationship to minors properly is employed in the constitutional
calculus  in  determining whether an asserted  state  purpose  or
interest is compelling ).

     31    Bellotti v. Baird, 443 U.S. 622, 635 (1979).

     32    See, e.g., Planned Parenthood I, 35 P.3d at 40 (noting
that  we  have  long  emphasized the States special  interest  in
protecting the health and welfare of children).

     33     Bellotti, 443 U.S. at 637 (quoting Pierce v. Socy  of
Sisters, 268 U.S. 510, 535 (1925)).

     34    Id. at 638.

     35    Id.

     36    H.L. v. Matheson, 450 U.S. 398, 410 (1981).

     37    Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).

     38     Bellotti,  443 U.S. at 639 (quoting Ginsberg  v.  New
York, 390 U.S. 629, 639 (1968)).

     39     Ohio v. Akron Ctr. for Reproductive Health, 497  U.S.
502, 511 (1990) (citing Matheson, 450 U.S. at 511 n.17).

     40     Colo. Rev. Stat. Ann.  12-37.5-101 to 107; Del.  Code
Ann. tit. 24,  1780-1789(B); Fla. Stat.  390.01114; Ga. Code Ann.
15-11-110  to  114; Ill. Comp. Stat. 70/1-99; Iowa Code   135L.3;
Kan. Stat. Ann.  65-6701 to 6709; Md. Code Ann., Health-Gen.  20-
103;  Minn.  Stat.  144.343; Mont. Code Ann.  50-20-201  to  215;
Neb.  Rev.  Stat.  71-6901 to 6908; Nev. Rev. Stat.  442.255;  NJ
Stat.  Ann.  9:17A-1.1 to 1.12; S.D. Codified Laws  34-23A-7;  W.
Va. Code  16-2F-1 to 9.

     41     See,  e.g., Ga. Code Ann.  15-11-112(a)  (prohibiting
physicians  from  performing an abortion on a  minor  unless  the
physicians  give either 24 hours actual notice, in person  or  by
telephone,  to a parent or guardian or twenty-four hours  written
notice,  which  is  deemed  delivered  forty-eight  hours   after
mailing);  Iowa  Code   135L.3(1)  (prohibiting  physicians  from
performing  an  abortion on a minor until  at  least  forty-eight
hours  prior notification is provided to a parent of the pregnant
minor).

     42    AS 18.16.030(e)(f) provides that a minor may bypass the
PCAs  parental consent requirement if a court determines by clear
and  convincing evidence that she is sufficiently mature and well
enough  informed  to decide whether to have an abortion  or  that
parental consent would not be in her best interests.

     43     See,  e.g., Md. Code Ann., Health-Gen.   20-103(c)(1)
(providing  that  a  physician may perform  an  abortion  without
notice  to a parent or guardian if, in the professional  judgment
of the physician[,] . . . [n]otification would not be in the best
interest  of the minor); W. Va. Code  16-2F-3(c) (providing  that
parental  notification may be waived by a physician,  other  than
the  physician  who  is to perform the abortion,  if  such  other
physician  finds  that the minor is mature  enough  to  make  the
abortion decision independently or that notification would not be
in the minors best interest).

     44    State v. Koome, 530 P.2d 260, 265 (Wash. 1975) (holding
that parental consent statute violates state constitutional right
to  privacy);  see also Am. Acad. of Pediatrics v. Lundgren,  940
P.2d  797,  816  (Cal. 1997) (holding that parental  consent  law
intrude[s]  upon  a  pregnant minors protected  privacy  interest
under the California Constitution).

     45    Matheson, 450 U.S. at 412; see also Planned Parenthood
Assn  of the Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1472-74
(11th  Cir.  1991)  (holding that Georgias  notification  statute
furthered  the states interest in protecting immature minors  and
promoting parental input).

1      In   drafting  the  Alaska  Parental  Consent   Act,   the
legislature  appears to have tracked carefully  the  requirements
for  parental consent and parental notification laws set  out  by
the  United  States Supreme Court in City of Akron v. Akron  Ctr.
for  Reproductive Health, Inc., 462 U.S. 416 (1983); Bellotti  v.
Baird,  443  U.S.  622 (1979); H. L. v. Matheson,  450  U.S.  398
(1981);  Planned Parenthood Assn. of Kansas City,  Mo.,  Inc.  v.
Ashcroft, 462 U.S. 476 (1983); Planned Parenthood of Cent. Mo. v.
Danforth,  428  U.S.  52  (1976), partially  overruled  on  other
grounds  by Planned Parenthood of Se. Pa. v. Casey, 505 U.S.  833
(1992).

     2    AS 18.16.020(1).

     3     AS 18.16.020(2).  In the event that the court fails to
act, such failure will be considered to be judicial authorization
for the abortion.  AS 18.16.020(3).

     4    AS 18.16.020.

     5    Stanley K. Henshaw & Kathryn Kost, Parental Involvement
in  Minors  Abortion Decisions, 24 Family Planning  Perspectives,
Sept/Oct. 1992 at Table 1.  See also Letter from Susan K.  Steeg,
General  Counsel,  Texas  Department of  Health  (May  26,  2004)
(stating that of the 3654 minor women who obtained an abortion in
Texas  in  2002,  1694  or forty-six percent  of  them  were  age
seventeen);  Aida  Torres, Jacqueline  Darroch  Forrest  &  Susan
Eisman, Telling Parents: Clinic Policies and Adolescents  Use  of
Family   Planning  and  Abortion  Services,  12  Family  Planning
Perspectives, Nov/Dec 1980, 284, 287 (forty-four percent  of  the
1170  unmarried  minor abortion patients surveyed were  seventeen
years old).

     6    S.C. Code Ann.  44-41-10(m) (2006).

     7    Del. Code Ann. tit. 24  1782(6) (2007).

     8    AS 18.16.020.

     9    Id. and AS 18.16.090(2)(C).

     10   AS 18.16.020, .090(2)(A).

     11   AS 18.16.020, .090(2)(B).

     12   AS 18.16.020, .090(2)(D).

     13   AS 18.16.030(l).

     14   Id.

     15   AS 18.16.030(n).

     16    AS  18.16.030(d).  The only exception is that  if  the
child already has counsel.  Id.

     17   AS 18.16.030(n)(3).

     18   AS 18.16.030(n)(1).

     19   AS 18.16.030(n)(2).

     20   AS 18.16.030(k).

     21   AS 18.16.030(h).

     22   AS 18.16.030(k).

23   AS 18.16.030(c).

     24   Id.

     25   Id.

     26   AS 18.16.030(j).  See also Alaska R. App. P. 220.

     27   AS 18.16.030(e).

     28   AS 18.16.030(f).

     29   AS 18.16.030(e), (f).

     30   948 P.2d 963 (Alaska 1997).

     31   Id. at 968.

32   Id. at 969.

     33   Opinion at 7; State v. Planned Parenthood of Alaska, 35
P.3d 30, 41 (Alaska 2001) (Planned Parenthood I).

     34    35 P.3d at 40 (quoting Planned Parenthood of Cent. Mo.
v Danforth, 428 U.S. 52, 74 (1976)).

     35   35 P.3d at 40 (footnote omitted).

     36    Id.  at  41  (quoting American Acad. of Pediatrics  v.
Lungren, 940 P.2d 797, 819 (Cal. 1997)).

     37   450 U.S. 398 (1981).

     38   Id. at 441 n.32.

     39   31 P.3d 88 (Alaska 2001).

40   31 P.3d at 91 (footnotes omitted).

     41    The  superior court actually identified six compelling
state interests in its opinion.  They were as follows:  (1) State
has  a  compelling interest in protecting minors from  their  own
immaturity. (2) State has a compelling interest in protecting the
physical,  emotional,  and psychological health  of  minors.  (3)
State  has a compelling interest in ensuring that doctors  obtain
informed   consent   from  their  minor  patients   contemplating
pregnancy related decisions. (4) State has a compelling  interest
in  protecting  minors from sexual abuse . . . .  (5)  The  court
finds  that  the  state does have many interests,  some  of  them
compelling, in fostering and protecting the family structure .  .
. . (6) This court finds that protecting rights to a civil action
is a compelling state interest.

     42   497 U.S. 417 (1990).

     43   Id. at 444.

     44    Id.  at 444-45.  See also Planned Parenthood  Assn  of
Kansas  City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 490-91  (1983)
(A  States interest in protecting immature minors will sustain  a
requirement   of  a  consent  substitute,  either   parental   or
judicial.);  Parham  v.  J. R., 442 U.S. 584,  603  (1979)  (Most
children, even in adolescence, simply are not able to make  sound
judgments  concerning many decisions, including  their  need  for
medical  care  or  treatment. Parents can  and  must  make  those
judgments.);  Planned Parenthood of Cent. Mo.  v.  Danforth,  428
U.S.  52,  102-04 (1976) (Stevens, J., concurring and dissenting)
(minors may not make enforceable bargains, work, or travel  where
they  please,  attend  exhibitions of  constitutionally-protected
adult  motion pictures, marry, etc.);  Gallegos v. Colorado,  370
U.S.  49,  54  (1962)  (holding that fourteen-year-olds  criminal
confession  made  without advice of adult  violated  due  process
because of childs inherent lack of maturity).

     45   492 U.S. 361 (1989), overruled by Roper v. Simmons, 543
U.S. 551 (2005).

46    Id.  at  395  (Brennan, J., dissenting) (quoting  Twentieth
Century  Fund  Task  Force  on  Sentencing  Policy  Toward  Young
Offenders, Confronting Youth Crime 7 (1978)).

     47   Commonwealth v. Albert, 758 A.2d 1149, 1154 (Pa. 2000).

     48    J.A.S.  v.  State, 705 So. 2d 1381, 1386 (Fla.  1998).
See  also  In  re E.G., 549 N.E.2d 322, 327 (Ill. 1989)  (holding
that  court should distinguish mature minors from immature minors
for  purpose  of  determining right to refuse  medical  treatment
because  the  State has a parens patriae power to  protect  those
incompetent to protect themselves).

     49   35 P.3d at 46-47.

50     Todays   Opinion  mistakenly  asserts  that  the   dissent
appears  to  liken a minors decision of whether  to  terminate  a
pregnancy  to  decisions  about  attending  school  field  trips,
joining sports teams, viewing R-rated movies, and lifting weights
at  the gym and argues that the decision to terminate a pregnancy
is  wholly unlike these decisions. (Opinion 10, n.28) The Opinion
misses the point entirely: Of course permission-slip decisions do
not have the lasting and profound consequences (Opinion 10, n.28)
of  the  abortion decision, and yet the law imposes the necessity
of parental consent upon them.  If society deems parental consent
critical  in such lesser matters, should not the parents  play  a
similar  role  when the consequence to the child  are  so  vastly
greater?  And in arguing that fundamental autonomy [is] at  stake
in  an  adolescents control over her own body, (Opinion 10, n.28)
the  Opinion  ignores  that  parental  consent  is  required  for
virtually  every other medical procedure involving a  child.  See
Hodgson  v. Minnesota, 497 U.S. 417, 423 (1990) (recognizing  the
common-law  requirement  of  parental  consent  for  any  medical
procedure performed on minors.).

     51   Prince v. Massachusetts, 321 U.S. 158, 166 (1944).



     52   497 U.S. 502 (1990).

     53   Id. at 519.

     54   Id. at 520.
          
     55   Id.

          

     56   Planned Parenthood v. Danforth, 428 U.S. 52, 104 (1976)
(Stevens, J., concurring).

     57   643 P.2d 997 (Alaska 1982).

     58   Id. at 1006.

59   540 P.2d 1051 (Alaska 1975).

     60   Id. at 1055 (Dimond, J., concurring).

     61   Id. at 1055-56.

     62   Planned Parenthood I, 35 P.3d 30, 41 (Alaska 2001).

     63   Opinion 12, quoting Ohio v. Akron Ctr. for Reproductive
Health, 497 U.S. 502, 511 (1990).

     64    See,  e.g.,  Opinion at 4 (the Act effectively  shifts
that  minors fundamental right to choose if and when  to  have  a
child  from the minor to the parents); 4 (veto power); 12 (same);
13 (same); 15 (the PCA shifts the right to reproductive choice to
minors parents); 16 (veto power).

     65    See  AS  18.16.030.  The judge in a bypass  case  must
decide  whether the child is sufficiently mature and well  enough
informed to decide intelligently whether to have an abortion.  If
she  is, the court issues an order authorizing her to consent  to
the  procedure  without  the consent of a  parent,  guardian,  or
custodian.  AS 18.16.030(e).  (If she is not, the court dismisses
the  case.   Id.  Presumably, a child found to be  insufficiently
mature to make such a decision should not make it.)

     66     497  U.S.  at  510-11  (emphasis  added).   Moreover,
although the reference in todays Opinion to the use of veto power
in  the United States Supreme Courts opinions in H.L. v. Matheson
and  Ohio  v. Akron Center is technically accurate (in the  sense
that  the  term appears in both opinions), it is also misleading.
Ohio  v.  Akron  Center,  when it referred  to  Matheson,  simply
established  that notice statutes are not equivalent  to  consent
statutes  for  the  purpose of constitutional analysis.   Neither
Matheson nor Akron Center directly addressed what types of bypass
procedures are capable of curing the constitutionally fatal  veto
power  found  in  consent  statutes  without  bypass  procedures.
Instead,  both  Matheson and Akron Center dealt solely  with  the
constitutionality of parental notification statutes.

          67   AS 18.16.020.
          
     68   See supra note 5.



     69   543 U.S. 551 (2005).

     70   Id. at 569 (internal quotations and citations omitted).

     71    Planned Parenthood of Cent. Mo. v. Danforth, 428  U.S.
52,  104-05  (1976) (Stevens, J., concurring and dissenting)  (In
all  .  .  . situations [where state legislation seeks to protect
minors  from the consequences of decisions they are not  prepared
to make] chronological age has been the basis for imposition of a
restraint  on  the  minors freedom of choice even  though  it  is
perfectly obvious that such a yardstick is imprecise and  perhaps
even unjust in particular cases.).

72   277 U.S. 32, 41 (1928) (Holmes, J., dissenting).

     73   830 P.2d 435 (Alaska App. 1992).

     74   Id. at 438.

     75    See  S.C. Code Ann.  44-41-10(m) (also defining minors
as under the age of seventeen).

     76    Delaware  appears  to  be  the  only  exception  among
notification   states.    Del.  Code  Ann.  tit.   24,    1782(6)
(requiring  notification for those under age sixteen).   But  cf.
Kan.  Stat.  Ann.   65-6701(f) (2006); Md. Code Ann., Health-Gen.
20-103 (2005); Minn. Stat.  144.343 (2005); Mont. Code Ann.   50-
20-203(6) (2005); Neb. Rev. Stat.  71-6901(5)  (2006); Nev.  Rev.
Stat.  442.255 (2005); S.D. Codified Laws  34-23A-7 (2006);  Tex.
Fam. Code Ann.  33.002 (2007); W. Va. Code  16-2F-2 (2007).

     77     AS  18.16.020 (applying the statute  only  to  minors
known  to  be  unmarried . . . and unemancipated).  The  majority
opinion  notes  that a minor must prove by clear  and  convincing
evidence  that she is sufficiently mature in order  to  obtain  a
judicial   bypass,  while  the  standard  of  proof   for   legal
emancipation  is  a preponderance of the evidence.   Because  any
minor  who has established legal emancipation is already exempted
from the scope of the PCA, however, the PCA is not over-broad  on
this account.  Furthermore, it is logical that a minor who cannot
prove  that  she  is  globally ready to  be  free  from  parental
supervision  may nonetheless be mature on the specific  issue  of
the  decision  to terminate her pregnancy.  This  discrepancy  in
what  must  be  proven negates an easy comparison  regarding  the
burden of proof that a minor must satisfy.

     78   Id.

     79    AS  18.16.090(2)(B).  By its  express  terms  the  PCA
provides  a much broader interpretation of the term unemancipated
than  Alaskas formal emancipation statute, AS 09.55.590. The term
is defined in AS 18.16.090(2):
          unemancipated  means  that  a  woman  who  is
          unmarried and under 17 years of age  has  not
          done any of the following:
          (A)  entered the armed services of the United
          States;
          (B) become employed and self-subsisting;
          (C) been emancipated under AS 09.55.590; or
          (D)  otherwise  become independent  from  the
          care   and  control  of  the  womans  parent,
          guardian, or custodian.
          
     80   AS 18.16.090(2)(A).

     81    Md.  Code Ann., Health-Gen.  20-103 (no exception  for
emancipated  minors);  Kan.  Stat.  Ann.   65-6705   (2006)   (no
exception  for unemancipated minors living independently);  Minn.
Stat.  144.343 (same);  Mont. Code Ann.  50-20-201 to 215 (same);
Neb. Rev. Stat.  71-6901 to 6908 (same); S.D. Codified Laws   34-
23A-7  (same); Tex. Fam. Code Ann.  33.001 to 011 (same); W.  Va.
Code  16-2F-1 to 9 (same).

     82    35 P.3d at 51-52 (Matthews, C.J. , dissenting) (citing
to  Bellotti,  443 U.S. 622 (1979)) (noting that (1)  proceedings
must except minor from any parental consent requirements if minor
can establish she is mature enough to make abortion decision,  or
that  requiring  consent  is not in her best  interests  and  (2)
proceedings  must  be  completed with  anonymity  and  sufficient
expedition).

83   AS 18.16.030(j).

     84   91 P.3d 252 (Alaska 2004).

     85   Id. at 267.

     86    Colo. Rev. Stat. Ann.  12-37.5-101 to 107 (West 2007);
Del.  Code  Ann.  tit. 24,  1780 to 1789B; Fla. Stat.   390.01114
(West  2007);  Ga. Code Ann.  15-11-110 to 118 (West  2007);  750
Ill.  Comp.  Stat.Ann.  70/1 to 99 (West 2007);  Iowa  Code  Ann.
135L.3  (West 2007); Kan. Stat. Ann.  65-6701 to 6709;  Md.  Code
Ann., Health-Gen.  20-103; Minn. Stat.  144.343; Mont. Code  Ann.
50-20-201  to  215; Neb. Rev. Stat.  71-6901 to 6908;  Nev.  Rev.
Stat.  442.255; N.J. Stat. Ann.  9:17A-1.1 to 1.12  (West  2007);
S.D.  Codified Laws  34-23A-7; W. Va. Code  16-2F-1 to 9  (2006).
Oklahoma,  Texas,  and  Utah,  not  counted  here,  require  both
notification  and consent. Okla. Stat. Ann. tit  .  63,   1-740.2
(West 2006); Tex. Fam. Code Ann.  33.001 to .011; Tex. Occ.  Code
Ann.   164.052(a)(19); Utah Code Ann.  76-7-304, 76-7-304.5 (West
2006).

     87    Ala. Code  26-21-1 to 8 (1992); Ariz. Rev. Stat.  Ann.
36-2152  (2006);  Ark. Code Ann.  20-16-801 to 810  (West  2006);
Cal.  Health & Safety Code  123450 (West 2007); Idaho  Code  Ann.
18-609A  (West 2007); Ind. Code  16-34-2-4 (West 2006); Ky.  Rev.
Stat.  Ann.   311.720,  311.732  (West  2006);  La.  Stat.   Ann.
40:1299.35.5 (2006); Me. Rev. Stat. Ann. tit. 22,  1597-A (2006);
Mass.  Gen.  Laws  ch. 112,  12S (2004); Mich.  Comp.  Laws  Ann.
722.901  to 722.909 (West 2006); Miss. Code Ann.  41-41-53  (West
2006); Mo. Ann. Stat.  188.028 (West 2006); N.C. Gen. Stat.  Ann.
90-21.6 to 90.21.10 (West 2006); N.D. Cent. Code  14-02.1 to 03.1
(2005);  Ohio Rev. Code Ann.  2919.121 (West 2006);  Okla.  Stat.
Ann. tit. 63,  1-740.2 (West 2006); 18 Pa. Cons. Stat. Ann.  3206
(West  2006);  R.I. Gen. Laws  23-4.7-6 (2006);  S.C.  Code  Ann.
44-41-31  (2006); Tenn. Code Ann.  37-10-301 to 308 (2005);  Tex.
Fam.   Code   Ann.    33.001  to  .011;  Tex.  Occ.   Code   Ann.
164.052(a)(19);  Utah Code Ann.  76-7-304, 76-7-304.5;  Va.  Code
Ann.   16.1-241(V)  (West 2006); Wis. Stat.  Ann.   48.375  (West
2005); Wyo. Stat. Ann.  35-6-118 (2006).

     88    Three states, Oklahoma, Texas, and Utah, have  adopted
both consent and notification statutes.

     89   See Treacy, 91 P.3d at 267.

     90    See Planned Parenthood Assn of Kansas City, Mo.,  Inc.
v. Ashcroft, 462 U.S. 476, 493-94 (1983).

91    35  P.3d  at 51 (Matthews, J., dissenting).  It  should  be
noted  that  since those words were written, Chief  Justice  John
Roberts  and  Justice  Samuel Alito have replaced  Chief  Justice
William Rehnquist and Justice Sandra Day OConnor.

     92   497 U.S. 502, 510-11 (1990).

     93   Opinion 13.

     94   Del. Code. Ann. tit.  24  1783(a).

     95   Md. Code. Ann.,  Health-Gen.  20-103(c)(1)(ii), (iii).

     96   W. Va. Code  16-2F-3(c).

     97    The  waiting  periods range between twenty-four  hours
(Delaware, West Virginia (twenty-four hours after actual notice),
Georgia,  Kansas, and Utah) and forty-eight hours (West  Virginia
(forty-eight   hours  after  mailing  notice),  Iowa,   Colorado,
Illinois, Minnesota, Nebraska, South Dakota, Texas, Montana).

     98   Md. Code. Ann.,  Health-Gen.  20-103.

99   W. Va. Code.  16-2F-3(a).

     100  Id.

     101  Opinion 16.

     102  Id. at 13.

     103   See Ga. Code Ann.  15-11-112(a) (written notice deemed
delivered  forty-eight  hours  after  mailing;  abortion  may  be
performed twenty-fours hours after).

     104   See, e.g., Del. Code Ann. tit. 24  1783; Ga. Code Ann.
112(a)(1)(B); Utah Code Ann.  76-7-304(3); W. Va. Code Ann.   16-
25-3(a)  (all  requiring  a waiting period  of  only  twenty-four
hours).

     105  Opinion 16.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC