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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Planned Parenthood of the Great Northwest v. State (7/22/2016) sp-7114

Planned Parenthood of the Great Northwest v. State (7/22/2016) sp-7114

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                        

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



PLANNED  PARENTHOOD  OF                                             )  

THE  GREAT  NORTHWEST,                                              )     Supreme  Court  Nos.  S-15010/15030/  

JAN  WHITEFIELD,  M.D.,  and                                        )     15039  (Consolidated)  

SUSAN  LEMAGIE,  M.D.,                                              )  

                                                                    )     Superior  Court  No.  3AN-10-12279  CI  

                                Appellants  and                     )  

                                Cross-Appellees,                                              

                                                                    )     O P I N I O N  

                                                                    )  

           v.                                                                                              

                                                                    )     No. 7114 - July 22, 2016  

                                                                    )  

                                       

STATE OF ALASKA, LOREN                                              )
  

                                                

LEMAN, MIA COSTELLO, and                                            )
  

          

KIM HUMMER-MINNERY,                                                 )
  

                                                                    )
  

                                                 

                                Appellees and                       )
  

                                Cross-Appellants.                   )
  

                                                                    )
  



                                                                                                            

                     Appeal from the Superior Court of the State of Alaska, Third  

                                                                                             

                     Judicial District, Anchorage, John Suddock, Judge.  



                                                                                                                

                     Appearances:               Susan   Orlansky,   Feldman   Orlansky   &  

                                                                                                  

                     Sanders, and Thomas Stenson, ACLU of Alaska Foundation,  

                                                                                                         

                     Anchorage, Janet Crepps, Center for Reproductive Rights,  

                                                                                                       

                     Simpsonville,  South  Carolina,  Talcott  Camp  and  Andrew  

                                                                                                        

                     Beck, ACLU  Foundation,  and Diana  O.  Salgado, Planned  

                                                                                                           

                     Parenthood Federation of America, New York, New York,  

                                                                                                           

                     and  Laura  F.  Einstein,  Planned  Parenthood  of  the  Great  

                                                                                      

                     Northwest,           Seattle,   Washington,   for   Appellants/Cross- 

                                                                                                  

                     Appellees.          Margaret  Paton  Walsh  and  Dario  Borghesan,  

                                                                                                                 

                     Assistant  Attorneys  General,  Anchorage,  and  Michael  C.  

                                                                                          

                     Geraghty,  Attorney  General,  Juneau  for  Appellee/Cross- 

                                                                                                             

                     Appellant   State   of   Alaska.                     Kevin   G.   Clarkson   and  


----------------------- Page 2-----------------------

                                                                                                    

                    Matthew   C.   Clarkson,   Brena,   Bell   &  Clarkson,   P.C.,  

                                                                                                 

                    Anchorage  for  Appellees/Cross-Appellants  Loren  Leman,  

                                                                                                 

                    Mia Costello, and Kim Hummer-Minnery.  Allison Mendel,  

                                                                                                        

                    Mendel  &  Associates,  Inc.,  Anchorage,  and  Lourdes  M.  

                                                                                                         

                    Rosado,JuvenileLawCenter,Philadelphia,Pennsylvania,for  

                                                                                                      

                    Amici  Curiae  Juvenile  Law  Center,  Legal  Voice,  and  

                                                                                                       

                    National Center for Youth Law.   Kimberly A. Parker and  

                                                                                                      

                    Joshua S. Press, Wilmer Cutler Pickering Hale and Dorr LLP,  

                                                                                                          

                    Washington, D.C., for Amici Curiae American College of  

                                                                                                         

                    Obstetricians  and  Gynecologists,  American  Congress  of  

                                                                                                         

                    Obstetricians  and  Gynecologists,  National  Association  of  

                                                                                            

                    Social  Workers,  Alaska  Chapter,  Society  for  Adolescent  

                                                                                                              

                    Health and Medicine, and American Psychiatric Association.  

                    Christina Passard, The Law Office of Christina M. Passard,  

                                                                                                         

                    P.C., Anchorage, and Mailee R. Smith, Americans United for  

                                                                                                  

                    Life, Washington, D.C., for Amicus Curiae Alaska Family  

                                                                                                        

                    Action.   Mario Bird, Ross & Minor, P.C., Anchorage, for  

                                                                                        

                    Amicus Curiae Alaskan Doctors for Parental Notice.  



                                                                                                        

                    Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                 

                    Bolger, Justices.  



                                       

                    WINFREE, Justice.
  

                                                                                                                    

                    FABE,  Chief  Justice,  joined  in  part  by  Maassen  and  Bolger,  Justices,
  

                    concurring.
  

                                                    

                    STOWERS, Justice, dissenting.
  



I.        INTRODUCTION  



                                                                                                                             

                    Alaska's  medical  emancipation  statute  historically  allowed  minors  to  



                                                                                                                 

consent to pregnancy-related health care subject to an express exception for pregnancy  



                                                                                                                     

termination.         In  2001  we  held  that  under  the  Alaska  Constitution's  broad  privacy  



                                                                                                              

guarantee a pregnant minor has the same fundamental privacy right to reproductive  



                                                                                                                   

choice as an adult, and in 2007 we held that right cannot be conditioned on another's  



                                                                                                                             

consent.  The 2007 ruling allowed minors to obtain all pregnancy-related health care -  



                                                                                

including pregnancy termination - without parental consent.  



                                                              -2-                                                        7114
  


----------------------- Page 3-----------------------

                                                                                                                              

                    But  in  that  2007  ruling  we  recognized  that  the  State  of  Alaska  has  



                                                                                                                              

compelling interests in aiding parents to help their minor children make informed and  



                                                                                                                              

mature pregnancy-related decisions, and we indicated that a parental notification law  



                                                                                                                        

might be implemented without unduly interfering with minors' fundamental privacy  



                                                                                                                        

rights. The2010voter-enacted Parental Notification Law -generallyrequiring48-hour  



                                                                                                                               

advance  parental  notice  before  a  physician  may  terminate  a  minor's  pregnancy  -  



                                                                                                                 

revived the exception in theexisting medical emancipation statute, creating considerable  



                                                                                                                               

tension between a minor's fundamental privacy right to reproductive choice and how the  



                                                     

State may advance its compelling interests.  



                                                                                                                               

                    In this case we must decide whether the Notification Law violates the  



                                                                                                                      

Alaska Constitution, and we are presented with two specific and distinctly different  



                                                                                                                           

questions:         (1)  Does  the  Notification  Law  violate  the  Alaska  Constitution's  equal  



                                                                                                                                 

protection guarantee by unjustifiably burdening the fundamental privacy rights only of  



                                                                                                                      

minors seeking pregnancy termination, rather than applying equally to all pregnant  



                                                                                                                           

minors?  (2) If the Notification Law does not violate the Alaska Constitution's equal  



                                                                                                                               

protection guarantee, does it violate the Alaska Constitution's privacy guarantee by  



                                                                                                                      

unjustifiably infringing on the fundamental privacy rights of minors seeking to terminate  



    

a pregnancy?  



                                                                                                              

                    We conclude that the Notification Law violates the Alaska Constitution's  



                                                                                                                                 

equal protection guarantee and cannot be enforced.  But the decision we reach today is  



                                                                                                                              

narrow in light of the limited State interests offered to justify the Notification Law.  The  



                                                                                                                         

State expressly disclaims any interest in how a minor exercises her fundamental privacy  



                                                                                                                        

right of reproductive choice, and it does not suggest that it has an interest in limiting  



                                                                                                                               

abortions generally or with respect to minors specifically.  And as a court we are not  



                                                                                                                       

concerned with whether abortion is right, wrong, moral, or immoral, or with whether  



                                                                                                                             

abortions should be available to minors without restriction. We are concerned only with  



                                                               -3-                                                         7114
  


----------------------- Page 4-----------------------

whether,  given its stated underlying justifications                                                               , the current Notification Law complies                                



with the Alaska Constitution's equal protection guarantee - and it does not.                                                                                                   



II.             FACTS AND PROCEEDINGS               



                A.              Early Statutory Backdrop                  



                                In 1968 the legislature enacted a medical emancipation statute allowing a                                                                                                   



physician to "examine a female minor over the age of 15 years with regard to pregnancy"                                                                                             

                                                            1   But at that time a carry-over territorial criminal statute made  

without parental consent.                                                                                                                                                                         

abortion illegal "unless . . . necessary to preserve the life of the mother."2  

                                                                                                                                                        



                                In  1970  the  legislature  rewrote  the  criminal  statute  to  allow  certain  

                                                                                                                                                                                             

abortions by licensed physicians in approved medical facilities.3                                                                                              But a portion of the  

                                                                                                                                                                                                       



criminal statute, AS 11.15.060(a)(3), expressly required parental consent before "an  

                                                                                                                                                                                                      

unmarried woman less than 18 years of age" legally could obtain an  abortion.4   In 1974  

                                                                                                                                                                                                   



the  legislature  rewrote  the  medical  emancipation  statute  to  more  broadly  cover  

                                                                                                                                                                                                



pregnancy-related  medical  care  -  except  abortion  -  by  stating  that  subject  to  

                                                                                                                                                                                                         



AS 11.15.060(a)(3) "a minor may give consent for diagnosis, prevention or treatment of  

                                                                                                                                                                                                          

pregnancy."5  



                                In1976,presumably inreaction to then-recent United StatesSupremeCourt  

                                                                                                                                                                                                  



decisions, the Alaska Attorney General issued an informal opinion on the validity of  

                                                                                                                                                                                                         



                1               Ch. 204,  1, SLA 1968; former AS 09.65.100 (1968).                                                              



                2               See   former  AS   11.15.060   (1962);      65-4-6   Alaska   Compiled   Laws  



                           

Annotated (1949).  



                3               Ch.   103,     1,  SLA   1970;  former  AS   11.15.060(a)(1)-(2)  (1970).  



                4               Former AS  11.15.060(a)(3) (1970).  

                                                                                                    



                5               Ch.  73,    1,  SLA  1974;  former  AS  09.65.100(a)(4)  (1974)  renumbered  as  



AS  25.20.025.
  



                                                                                                    -4-                                                                                            7114
  


----------------------- Page 5-----------------------

portions of AS 11.15.060.                               6  The Attorney General concluded that the parental consent                   



provision was a "clearly unconstitutional" infringement of minors' fundamental privacy                                                                                     



rights under the United States Constitution because it was a blanket ban - regardless of                                                                                              



a minor's actual capacity or maturity - and it applied even when an abortion might be                                                                                                

necessary to save a minor's life.                                    7  



                             In 1980 the legislature removed AS 11.15.060 from the criminal statutes  

                                                                                                                                                                          



and renumbered it as AS 18.16.010, but did not respond to the Attorney General's 1976  

                                                                                                                                                                                

opinion that the parental consent provision violated the United States Constitution.8  The  

                                                                                                                                                                                   



parental consent provision remained in place as AS 18.16.010(a)(3) until amended with  

                                                                                                                                                                                 

the enactment of the 1997 Parental Consent Act.9   The relevant provision of the medical  

                                                                                                                                                                          



emancipation statute has not changed - other than replacing the exception's original  

                                                                                                                                                                          

                                                                                                                                                        10 - although it  

reference to AS 11.15.060(a)(3) with a reference to AS 18.16.011(a)(3)                                                                                                                  

                                                                                                                       

was renumbered in 1994.11  

                                           



              B.             Early Constitutional Backdrop  

                                                                              



                             In 1972 voters added the following provision to the Alaska Constitution:  

                                                                                                                                                                                            

"The right of the people to privacy is recognized and shall not be infringed."12                                                                                         In 1997  

                                                                                                                                                                                



              6              1976  INFORMAL  OP.  ATT'Y  GEN.  (Oct.  21).  



              7             Id.  at  3-6,  7.  



              8              Ch.   166,     22,   SLA   1978  (effective  Jan.   1,   1980).   The  statute  later  was  



reorganized.   See  AS   18.16.010  (1986).  



              9              Ch.   14,    2,  3,  6,  SLA   1997.  



               10            Ch.   166,    22,  SLA   1978  (effective  Jan.   1,   1980).  



               11            See AS 25.20.025(a)(4) (1994).  

                                                                                  



               12            Alaska  Const.  art.  I,    22;   Valley  Hosp.  Ass'n  v.  Mat-Su  Coal.  for  Choice,  



                                                                                                                                                             (continued...)  



                                                                                          -5-                                                                                  7114
  


----------------------- Page 6-----------------------

weexamined                this express privacyprovision inthecontext                                         ofpregnancy-relateddecisions             



and held that a woman's fundamental privacy right to reproductive choice is more                                                                        

                                                                                                                                                          13  And  

broadly protected by the Alaska Constitution than the United States Constitution.                                                                               



 15 years ago, in the constitutional equal protection context, we noted that "political  

                                                                                                                                                     



disapproval" alone cannot  justify  treating  women  differently  based  upon  how they  

                                                                                                                                                               

exercise their reproductive choices.14  

                                                      



             C.           The 1997 Parental Consent Act  

                                                                                    



                          Shortly before our 1997 decision regarding a woman's broad fundamental  

                                                                                                                                                



privacy  right  to  reproductive  choice  under  the  Alaska  Constitution,  the  legislature  

                                                                                                                                                   

enacted the Parental Consent Act.15 

                                                                      The Consent Act amended AS 18.16.010(a)(3) to  



                                                                                                                                                                     

generally  require  parental  consent  before  a  minor  under  age  17  could  terminate  a  



                                                                                                                                                        

pregnancy  and  added  other  provisions  addressing  the  federal  constitution  privacy  



                                                                                                                                                                    16  

                                                                                                                                                                         

concerns the Supreme Court and the Alaska Attorney General raised in the mid-1970s. 



             12           (...continued)  



                                                      

948 P.2d 963, 968 (Alaska 1997).  



             13  

                                                                                          

                            Valley Hosp. Ass'n, 948 P.2d at 966-69.  



             14           State, Dep't of Health &Soc. Servs. v. Planned Parenthood of Alaska, Inc.,  

                                                                                                                                                               

28 P.3d 904, 905 (Alaska 2001) (stating that "political disapproval" does not justify  

                                                                                                                                                           

denying Medicaid coverage to women seeking abortions when coverage is granted to  

                                                                                                                                                                    

women seeking to carry to term).  See also Alaska Const. art. I,  1 (providing that all  

                                                                                                                             

persons are "entitled to equal rights, opportunities, and protection under the law").  

                                                                                                                                                    



             15           Ch.14,  1-10, SLA 1997; see also former AS 18.16.010(a)(3) (2004);  

                                                                                                                                                         

former AS 18.16.020 (2004).  

                                                           



             16           Ch.14,  1-10, SLA 1997; cf. INFORMAL  OP. A                                              TT'Y  GEN.,  supra  note 6 at      

                                                                                     

3-6, 7.   



                                                                                 -6-                                                                          7114
  


----------------------- Page 7-----------------------

                                                                                                                  17  

The Consent Act's constitutionality soon was challenged.                                                               The superior court enjoined            



the State from enforcing the Consent Act, summarily concluding that it violated the                                                                                     

                                                                                                   18   The State appealed, and in Planned  

Alaska Constitution's equal protection guarantee.                                                                                                             

                                                                                  19  But we acknowledged that under the Alaska  

Parenthood I we remanded for a full trial.                                                                                                                       

                                                                          



Constitution pregnant minors have the same fundamental privacy right to reproductive  

                                                                                                                                                     



choice as pregnant adults:  

                                                      



                           The   "uniquely   personal"   physical,   psychological,   and  

                                                                                                                                          

                           economic  implications  of  the  abortion  decision  that  we  

                                                                                                                                  

                           described in  Valley Hospital are in no way peculiar to adult  

                                                                                                         

                           women.   Deciding 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 . . . .[20]  

                                                                                                                            



                           After trial the superior court concluded that the Consent Act violated both  

                                                                                                                                                                      



the  privacy  and  equal  protection  guarantees  of  the  Alaska  Constitution,  and  again  

                                                                                                                                                                   

enjoined the State from enforcing the Consent Act.21  The State appealed, and in Planned  

                                                                                                                                                              



Parenthood  II  we held  that although the State had  shown  compelling  interests "in  

                                                                                                                                                                        



protecting minors from their own immaturity" and in "aiding parents to fulfill their  

                                                                                                                                                                     



parental  responsibilities,"  the  Consent  Act  was  not  the  least  restrictive  means  of  

                                                                                                                                                                         



              17           See State v. Planned Parenthood of Alaska                                                 (Planned Parenthood I                          ), 35   



P.3d 30, 32-33 (Alaska 2001).                    



              18           Id.  at  33;  see  Alaska  Const.  art.  I,    1  (guaranteeing  "equal  rights,  

                                                                                                                                                                

opportunities, and protection under the law").  

                                                                                              



              19           Planned Parenthood I, 35 P.3d at 46.  

                                                                                                 



              20           Id.  at 40 (footnote omitted),  quoted with approval in State v. Planned  

                                                                                                                                                             

Parenthood of Alaska  (Planned Parenthood II), 171 P.3d 577, 582 & n.26 (Alaska  

                                                                                                                                                               

2007).  

               



              21           Planned Parenthood II, 171 P.3d at 580-81.  

                                                                                                     

                                                                       



                                                                                    -7-                                                                             7114
  


----------------------- Page 8-----------------------

                                              22  

furthering those interests.                        We explained that requiring parental notification before                                  



terminating   a   minor's   pregnancy  could   effectively   meet   the   State's   interests   while  

                                                                                                                            23    Because we  

imposing a lower burden on the minor's constitutional privacy right.                                                                               



concluded that the Consent Act was an unconstitutional infringement on fundamental  

                                                                                                                                  

privacy rights,24 effectively ruling that all pregnant minors - not just those seeking to  

                                                                                                                            



carry to term - were covered equally by the medical emancipation statute, we had no  

                                                                                 

reason to address the equal protection question arising from the Consent Act.25  

                                                                                                                                 



            D.         The Parental Notification Law                     



                       After our        Planned Parenthood II                   decision, Loren Leman, MiaCostello, and                           



                                                                                                                                                     26  

                                                                                                                                                          

KimHummer-Minnery (theSponsors) sponsored aparentalnotificationvoterinitiative. 



                                                                                                                                                     27  

                                                                                                                                            

In August 2010 voters approved the initiative, titled the Parental Notification Law, 

                                                                                                                               28   A parental  

                                                                                                                                          

                                                                                                                        

constructed by amending the existing but unenforceable Consent Act. 

notification component was placed in AS 18.16.010(a)(3),29  

                                                                                                                                          

                                                                                                           thus reviving the medical  



            22         Id.  at  582-83,  585.  



            23         Id.  at  584-85.  



            24         Id.  at  583-86.   



            25         See   id.   at   581  n.21,   585   ("Because  we   conclude   that   the   [Consent   Act]  



violates   the   right   to   privacy   under   the   Alaska   Constitution,   we   need   not   address  

[whether]  the  Act  also  violates  the  equal  protection  clause  .  .  .  .").  



            26         See Planned Parenthood of Alaska v. Campbell, 232 P.3d 725, 727 (Alaska  

                                                                                                                                           

2010) (discussing the initiative's procedural history).  

                                                                               



            27         AS  18.16.010-.040.  

                                                            



            28         Alaska Laws Initiative Meas. 2 (Bal. Meas. 2), 26th Leg., 2d Sess. (2010).  

                                                                                                                                            



            29         AS  18.16.010(a)(3) generally provides that a physician may not perform  

                                                                                                                                          

an abortion for a "pregnant, unmarried, unemancipated woman under 18"absent advance  

                                                                                                                                           

                                                                                                                                (continued...)  



                                                                         -8-                                                                   7114
  


----------------------- Page 9-----------------------

emancipation statute's differential treatment of pregnant minors based on how they                                                      

exercised their fundamental privacy right of reproductive choice.                                          30  



                      The Notification Law applies to unemancipated, unmarried minors under  

                                                                                                                                      

                                                                  31   It includes specific requirements for parental  

age 18 seeking to terminate a pregnancy.                                                                                          

                                                

notification,32  a 48-hour mandatory waiting period between parental notification and the  

                                                                                                                                                



           29         (...continued)  



                                                                                                                                           

parental notice or judicial authorization to proceed without parental involvement, as set  

                                                        

forth in related Notification Law provisions.  



           30         Cf. AS 25.20.025(a)(4) ("Except as prohibited under AS 18.16.010(a)(3)"  

                                                                                                                    

minors may give consent to pregnancy-related health care.).  

                                                                                          



           31         AS 18.16.020(a) (prohibiting, absent parental notice or other exception,  

                                                                                                                              

persons from performing or inducing an abortion upon "a minor who is known . . . to be  

                                                                                                                                           

pregnant, unmarried, under 18 years of age, and unemancipated").  

                                                                                 



           32         AS 18.16.020(b) provides in part:  

                                                                       



                      An individual designated by the physician may initiate the  

                                                                                                                    

                      notification process, but the actual notice shall be given by  

                                                                                                                     

                      the physician.  The physician giving notice of the abortion  

                                                                                                           

                      must document the notice or attempted notice in the minor's  

                                                                                                             

                      medical record and take reasonable steps to verify that the  

                                                                                                                    

                      person to whom the notice is provided is the parent, legal  

                                                                                                                 

                      guardian,  or  custodian  of  the  minor  seeking  an  abortion.  

                                                                                                          

                      Reasonable steps to provide notice must include  

                                                                                          



                                 (1)  if   in  person,   requiring  the  person  to  show  

                                                                                                               

                      government-issued   identification   along   with   additional  

                                                                                                       

                      documentation  of  the  person's  relationship  to  the  minor;  

                                                                                                              

                      additional  documentation  may  include  the  minor's  birth  

                                                                                                                 

                      certificate  or  a  court  order  of  adoption,  guardianship,  or  

                                                                                                                     

                      custodianship;  



                                 (2) if by telephone, initiating the call, attempting to  

                                                                                                                      

                      verify through a review of published telephone directories  

                                                                                                        

                                                                                                                         (continued...)  



                                                                     -9-                                                              7114
  


----------------------- Page 10-----------------------

                                                                                                                                         33  

termination of a minor's pregnancy (absent a parent's earlier written consent),                                                               and  



criminal and civil penalties for any physician who                                          terminates a minor's pregnancy        

without complying with the notification requirements.                                       34  



                                                                                                                                     

                       The   Notification   Law   includes   an   exception   for   certain   medical  

                      35    It also includes two provisions for bypassing parental notification.36  

emergencies.                                                                                                                                         



           32	         (...continued)
  



                                                                                                                 

                       that the number to be dialed is that of the minor's parent,
  

                                                                                                                        

                       legal  guardian,  or  custodian,  and  asking  questions  of  the
  

                                                                                                                           

                       person to verify that the person's relationship to the minor is
  

                                                                                                                          

                       that of parent, legal guardian, or custodian; when notice is
  

                                                                                                                          

                       attempted by telephone [but is unsuccessful, the physician or
  

                                                                                                                      

                       designee] shall continue to initiate the call, in not less than
  

                                                                                                                           

                       two-hour increments, for not less than  five attempts, in a
  

                                      

                       24-hour period.
  



                                                                                                                                              

AS  18.16.020(c)  provides  that  if  the  attempts  required  under  AS  18.16.020(b)  are  

                                        

unsuccessful, then the physician:  



                                                                                                                     

                       may provide constructive notice to the minor's parent, legal  

                                                                                                                          

                       guardian, or custodian.  Constructive notice is considered to  

                                                                                                                 

                       have been given 48 hours after the certified notice is mailed.  

                                                                                                                          

                       In this subsection, "constructive notice" means that notice of  

                                                                                                                

                       the abortion was provided in writing and mailed by certified  

                                                                                                                  

                       mail, delivery restricted to addressee only, to the last known  

                                                                                                                   

                       address of the parent, legal guardian, or custodian after taking  

                                                                                         

                       reasonable steps to verify the mailing address.  



           33	         See AS 18.16.020(a)(1)(A)-(B).  

                                     



           34	         AS 18.16.010(c) (providing fines of up to $1,000 and/or imprisonment up  

                                                                                                                                                

to five years); AS 18.16.010(e) (providing civil liability for compensatory and punitive  

                                                                                                                                      

damages to the minor and the minor's parents, guardian, or custodian).  

                                                                                                       



           35          AS 18.16.010(g)(3) (defining "medical emergency" as "necessary to avert  

                                                                                                                                            

the minor's death" or when delay "will create serious risk of medical instability caused  

                                                                                                                                         

                                                                                                                             (continued...)  



                                                                      -10-	                                                                7114
  


----------------------- Page 11-----------------------

                                                                                            37  

First, with the assistance of a court-appointed attorney,                                       a minor may seek a judge's            



                                                                                    38  

permission to bypass the notification requirement.                                                                                        

                                                                                        Permission will be granted if the  

                                                                              39  that she is mature enough to make the  

                                                                                                                                           

                                                                

minor proves by clear and convincing evidence 

                                                                                                                        40   Second, an  

decision without parental notice or consent or that her parents are abusive.                                                                

                                                                                                            



abused minor may bypass the notification requirement by providing to her physician  

                                                                                                                               

notarized statements from herself and a witness regarding the abuse.41                                                    If an abused  

                                                                                                                                   



           35         (...continued)
  



by  a  substantial  and  irreversible  impairment  of  a  major  bodily  function").
   



           36         See  AS   18.16.030;  AS   18.16.020(a)(4).   



           37         AS   18.16.030(d),  (n)(3).   



           38         AS   18.16.030.  



           39         AS   18.16.030(e),  (f).  



           40         AS   18.16.030(b)(4)   provides   that   permission   to bypass   the   notification  



requirement  will  be  granted  if  the  minor  proves:  



                                 (A)  that   [she]  is  sufficiently  mature  and  well e   nough  

                      informed  to  decide  intelligently  whether  to  have  an  abortion  

                      without  notice  to  .  .  .  a  parent,  guardian,  or  custodian;  or  



                                 (B)   that   one   or   both   of   the   minor's   parents   or   the  

                      minor's   guardian   or   custodian   was   engaged   in   physical  

                      abuse, sexual abuse, or  a  pattern  of  emotional  abuse against  

                      the  minor  .  .  .  .  



           41         AS  18.16.020(a)(4) allows minors who  are victims  of "physical  abuse,  

                                                                                                                                     

sexual abuse, or a pattern of emotional abuse committed by one or both of the minor's  

                                                                                                                                   

parents  or by  a legal  guardian or custodian  of the  minor" to bypass  notification by  

                                                                                                                                           

providing signed and notarized statements to the physician from the minor and from a  

                                                                                                                             

witness with "personal knowledge" documenting the abuse.  The witness must be a law  

                                                                                                                                          

enforcement officer, an Alaska Department of Health and Social Services representative  

                                                                                                                         

who has investigated the abuse, or the minor's sibling over the age of 21, grandparent,  

                                                                                                                           

                                                                                                                         (continued...)  



                                                                    -11-                                                              7114
  


----------------------- Page 12-----------------------

minor   pursues  this  option,   then   the   physician   must   report   the   abuse   to   the   Alaska  

Department of Health and Social Services.                         42  



                              

          E.         This Case  



                                                                                                                          

                     Planned Parenthood of the Great Northwest and two doctors who perform  



                                                                                                                                   

abortions in Alaska (collectively Planned Parenthood) sought to enjoin enforcement of  



                                                                                                                                 

the Notification Lawonthe grounds that it violates the Alaska Constitution's privacy and  



                                                                                                                                        

equal protection guarantees.  The Sponsors intervened to defend the Notification Law.  



                                                                                                                            

The superior court denied a requested preliminary injunction against the law as a whole,  



                                                                                                                                 

although it preliminarilyenjoinedseveral"peripheralfeatures": criminal punishment and  



                                                                                                                         

civil liability for physicians; the requirement that only the physician - not an assistant  



                                                                                                                  

- notify parents; the requirement that parents show government-issued identification  



                                                                                                                               

during in-person notification to document that they are the minor's parents; and the clear  



                                                                                          

and convincing evidence standard for the judicial bypass procedure.  



                                                                                                                                   

                     After trial the superior court made broad findings of fact on a number of  



                                                                     

issues, including how the Notification Law had functioned for the 14 months between  



                                                 

its effective date and the trial.  The court rejected Planned Parenthood's argument that  



                                                                                                                          

the Notification Law violates equal protection by treating pregnant minors seeking  



                                                                                                                                

termination  differently  from those  seeking  to  carry  to  term.                                 The  court  stated  that  



                                                                                                                                

Alaska's medical emancipation statute encourages pregnant minors to seek medical care  



                                                                        

which they otherwise might avoid for fear of parental involvement, and then reasoned  



                                                                                                                           

that "once a minor elects an imminent abortion, the core rationale underpinning medical  



                                                                                                                                     

emancipation no longer applies to her; she no longer requires encouragement to see a  



          41         (...continued)  



                                                                                    

or stepparent.  No other witnesses are permitted.  AS 18.16.020(a)(4)(B).  



          42         AS 18.16.020(d); see also AS 47.17.020; AS 47.17.290(6).  

                                                                                                                  



                                                                -12-                                                          7114
  


----------------------- Page 13-----------------------

                                                                                                                     

doctor to protect her own health and that of her fetus."  The court therefore concluded  



                                                                                                                         

that minors seeking pregnancy termination are not similarly situated to minors seeking  



                                                                                                                                

to carry to term, and that the Notification Law's effective disparate application of the  



                                                                                                                               

medical emancipation statute "does not violate Alaska's equal protection clause."  



                                                                                                                         

                    The superior court also analyzed whether the Notification Law violates  



                                                                                                                               

minors'  constitutional  privacy  rights  and  concluded  that  parts  of  the  law  are  



                                                                                                                          

constitutional but others are not.  The court vacated its preliminary injunction against  



                                                                                                                      

some  provisions,  including  the  criminal  sanctions  for  physicians  and  the  parental- 



                         

documentation requirement; it issued a permanent injunction against others, including  



                                                                                                                     

the imposition of civil liability on physicians, the requirement that physicians personally  



                                                                                                                                

notify parents, and the clear and convincing evidence standard for judicial bypass of the  



                                         

notification requirement.  



                                                                                                                              

                    The superior court issued a final judgment, and the clerk of court then  



                                                                                                                                

awarded the State and the Sponsors their trial costs. The superior court later vacated the  



                                                                                                                                

cost awards, concluding that both sides were prevailing parties on a main issue in the  



                                                             

case and that no cost awards should be made.  



                                                                                                                               

                    Planned  Parenthood  appeals  the  superior  court's  ruling  upholding  the  



                                                                                                                               

majority of the Notification Law, arguing for reversal on both equal protection and  



                                                                                                                             

privacy grounds.  The State and the Sponsors appeal the court's decision to strike some  



                                                                                                                         

oftheNotificationLaw's provisions, arguing that those provisions do not violateminors'  



                                                                                      

constitutional privacy rights; they also appeal the costs ruling.  



                                                               -13-                                                         7114
  


----------------------- Page 14-----------------------

III.         STANDARD OF REVIEW                 



                                                                                                                                                43  

                         We apply our independent judgment to equal protection claims.                                                                     

                                                                                                                                                      In an  



                                                                                                                                                          

equal protection analysis we must identify and assess the nature and importance of the  



                                                                                                                                                            

competing personal and governmental interests at stake, identify the relevant level of  



                                                                                                                                       

scrutiny for governmental action, and assess the means chosen to advance governmental  



                 44  

                                                                                                                                             

interests.            These are questions of law to which we apply our independent judgment,  



                                                                                                                                                            45  

                                                                                                                                                                 

adopting "the rule of law 'most persuasive in light of precedent, reason, and policy.' " 



                                                                                                       46  

                                                                                                             

Underlying findings of fact are reviewed for clear error. 



IV.         DISCUSSION  



                         We  begin  by  noting  that  a  challenge  to  a  statute  "must  overcome  a  

                                                                                                                                                             

presumption  of  constitutionality."47                                  When  a  statute's  constitutionality  is  facially  

                                                                                                                                                 



challenged, we will uphold the statute even if it might occasionally create constitutional  

                                                                                                                                       



            43          Matanuska-Susitna Borough Sch. Dist. v. State                                         , 931 P.2d 391, 397 (Alaska           



 1997) ("This court exercises its independent judgment in deciding equal protection                                                          

claims.").   



            44           State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014) (quoting Alaska Civil  

                                                                                                                                         

Liberties Union v. State, 122 P.3d 781, 785 (Alaska 2005)).  

                                                                                                 



            45          Id. (quoting State v. Anthony, 810 P.2d 155, 156-57 (Alaska 1991)).  

                                                                                                                                         



            46           See Planned Parenthood II, 171 P.3d 577, 581 (Alaska 2007) (stating in  

                                                                                                                                                            

context  of  constitutional  challenge  that  "[w]e  review  the  superior  court's  factual  

                                                                                                                                                  

determinations for clear error" (citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska  

                                                                                                                                                 

2003))).  The parties dispute whether we should review the superior court's findings of  

                                                                                                                                                            

"constitutional" or "legislative" facts de novo or for clear error.  Because we are not  

                                                                                                                                                          

persuaded that the superior court's factual findings on which we rely would be erroneous  

                                                                                                                                              

under either standard, we do not need to address this dispute.  

                                                                                                                   



            47           Schmidt, 323 P.3d at 655 (quoting Alaska Civil Liberties Union , 122 P.3d  

                                                                                                                                                        

at 785); see also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192  

                                                                                                                                                         

(Alaska 2007).  

                



                                                                            -14-                                                                      7114
  


----------------------- Page 15-----------------------

                                                                                                                                                                                                          48  

problems in its application, as long as it "has a plainly legitimate sweep."                                                                                                                                    But a statute     



                                                                                                                                                                                                       49  

 infringing on a constitutionally protected right deserves close attention.                                                                                                                                                            

                                                                                                                                                                                                              And our duty  



                                                                                                                                                                                                                                              

to uphold the Alaska Constitution is paramount; it takes precedence over the politics of  



                                                                                                                        50  

                                                                                                                               

                                                                                      

the day and our own personal preferences. 



                   48                 Planned Parenthood II                                             , 171 P.3d at 581 (quoting                                                 Treacy v. Municipality       



 of Anchorage                           , 91 P.3d 252, 260 n.14 (Alaska 2004));                                                                               see also Haggblom v. City of                                                    

Dillingham, 191 P.3d 991, 998 (Alaska 2008) ("We will not hold a statute void for                                                                                                                                                          

vagueness if the statute has been shown to have a 'plainly legitimate sweep.' " (quoting                                                                                                                                  

 Treacy, 91 P.3d at 260 n.14));                                                      Planned Parenthood I                                         , 35 P.3d 30, 34-35 (Alaska 2001)                                                

 (concluding that our previous standard - that a statute will be upheld unless there is "no                                                                                                                                               

 set of circumstances . . . under which" it would be constitutional - is not a "rigid                                                                                                                                             

requirement" (quoting                                           Javed v. State, Dep't of Pub. Safety                                                                 , 921 P.2d 620, 625 (Alaska                              

 1996))).  



                                      Evenunderthestricter "no set ofcircumstances"analysis,only                                                                                                                 theeffective   

 applications of a statute authorizing or prohibiting conduct should be considered.                                                                                                                                                     Los  

Angeles v. Patel                              , 135 S.Ct. 2443, 2450-51 (2015).                                                              A law is measured for constitutional                            

validity "by its impact on those whose conduct it affects," and the proper constitutional                                                                                                                     

 inquiry focuses on "the group for whom the law is a restriction, not the group for whom                                                                                                                                          

the law is irrelevant."                                          Planned Parenthood of Se. Pa. v. Casey                                                                                  , 505 U.S. 833, 894   

 (1992).  



                   49                 See, e.g., State, Dep't of Health & Soc. Servs. v. Planned Parenthood of  

                                                                                                                                                                                                                                              

Alaska, Inc. , 28 P.3d 904, 912 (Alaska 2001) ("Because [the regulation] infringes on a  

                                                                                                                                                                                                                                                 

 constitutionally  protected  interest,  the  State  bears  a  high  burden  to  justify  the  

                                                                                                                                                                                                                                         

regulation."); Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1261  

                                                                                                                                                                                                                                      

 (Alaska 1980) (noting strict scrutiny applies "when fundamental rights are at stake"); see  

                                                                                                                                                                                                                                           

 also Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620, 633 (N.J. 2000) (stating  

                                                                                                                                                                                                                               

 governmental burden on fundamental right "is deserving of the most exacting scrutiny").  

                                                                                                                                                                                                                      



                   50                 See  Alaska  Const.  art.  XII,    5  (requiring  public  officers  to  swear  to  

                                                                                                                                                                                                                          

 "support and defend . . . the Constitution of the State of Alaska"); Malone v. Meekins,  

                                                                                                                              

 650 P.2d 351, 356 (Alaska 1982) ("[T]he judicial branch . . . has the constitutionally  

                                                                                                                                                                                                        

mandated duty to ensure compliance with the provisions of the Alaska Constitution  

                                                                                                                                                                                                                

 . . . ."), quoted with approval in Planned Parenthood of Alaska, 28 P.3d at 913.  

                                                                                                                                                                                                                    



                                                                                                                    -15-                                                                                                              7114
  


----------------------- Page 16-----------------------

                                Finally,   relevant   to   today's   issues,   our   opening   statement   in   Planned  



Parenthood II                      bears repeating:   



                                                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.     We   are   focused   only  on  upholding   the  

                                constitution and laws of the State of Alaska.                                                              [51]  



                A.              Equal Protection  

                                                  



                                 1.             Planned Parenthood II 's non-effect on the challenge  

                                                                                                                                                             



                                The State, the dissent - and to a lesser degree the concurring opinion -  

                                                                                                                                                                                                           



assert that our Planned Parenthood II decision forecloses an equal protection challenge  

                                                                                                                                                                                          



to  the  Notification  Law;  the  State  argues  that  "[w]hen  this  Court  held  in  Planned  

                                                                                                                                                                                           



Parenthood II that a parental notification law was a constitutional option that was less  

                                    



restrictive than the parental consent law, by implication it also rejected [the current]  

                                                                                                                                                                                             



equal protection challenge."  We disagree.  

                                                                                 



                                In  Planned  Parenthood  II  we  held  that  the  Consent  Act  was  an  

                                                                                                                                                                                                         



unconstitutional infringement on pregnant minors' constitutional privacy rights because  

                                                                                                                                                                                              



a notification statute potentially could be a less restrictive alternative furthering the  

                                                                                                                                                                                                        

 State's compelling interests.52                                             Although in that decision's introduction we made the  

                                                                                                                                                                                                         



broad conclusory statement that "the constitution permits a statutory scheme which  

                                                                                                                                                                                                 



                51              Planned   Parenthood   II,   171   P.3d   at  579   (footnote   omitted)   (quoting  



Planned Parenthood of Alaska                                               , 28 P.3d at 906).           



                52              See id. at 583-85.  

                                                        



                                                                                                   -16-                                                                                             7114
  


----------------------- Page 17-----------------------

ensures that parents are notified so that they can be engaged in their daughters' important                                           



                                                                        53  

decisions in [pregnancy-related] matters,"                                                                                       

                                                                           our holding addressed only the fundamental  

                           54  Weexplainedthat "although parentalnotificationstatutesundoubtedly  

                                                                                                                                 

              

right to privacy. 



burden the privacy  rights of minors," they would present potentially less restrictive  

                                                                                                                                     

alternatives than consent laws under a fundamental privacy right analysis.55   We did not  

                                                                                                                                                 



address other constitutional issues which might arise from a notification law - indeed,  

                                                                                                                                          

a notification law was merely hypothetical at that point.56                                              And because our privacy  

                                                                                                                                         



ruling involving the consent law effectively placed all pregnant minors on an equal plane  

                                                                                                                                             



under  the  medical  emancipation  statute,  we  did  not  address  the  equal  protection  

                                                                                                                                    

challenge to the Consent Act.57  

                                             



                       The  dissent  and  the  concurring  opinion  unreasonably  conclude  we  

                                                                                                                                                



suggested that any parental notification law would pass constitutional equal protection  

                                                                                                                                     



muster - sight unseen and without regard to either its stated justification or the factual  

                                                                                                                                           



underpinning for that justification - even though we engaged in no equal protection  

                                                                                                                                     



analysis whatsoever regarding parental notification laws.  Our actual conclusion that a  

                                                                                                                                                    



parental notification law might survive a constitutional privacy challenge does not mean  

                                                                                                                                             



            53         Id.  at  579.  



            54         Id.  at  584.  



            55         Id.  (emphasis  added).  



            56         See  generally  id.  



            57         Id.  at  581  n.  21,  585  ("Because  we  conclude  that  the  [Consent  Act]  violates  



the  right  to  privacy  under  the  Alaska  Constitution,  we  need  not  address  [whether]  the  Act  

also  violates  the  equal  protection  clause  .  .  .  .").  



                                                                       -17-                                                                  7114
  


----------------------- Page 18-----------------------

                                                                                                                 58  

that   every   conceivable   notification   law   will   do   so.                                                       Nor   does   it   mean   that   every  



conceivable notification law will satisfy the separate and independent constitutional                                                                      



equal   protection   standard.     In  the   fundamental   rights   context   there   is   a   significant  



difference between Alaska's privacy and equal protection guarantees:                                                                                        The privacy   



clause guarantees that the State may not infringe upon an individual's fundamental right                                                                                       



of    personal    autonomy    unless   a    compelling    governmental    interest    justifies    the  



infringement; in contrast the equal protection clause guarantees that the State may not                                                                                          



discriminate between individuals with respect to a fundamental                                                                      rightunless a compelling       



                                                                                                          59  

governmental interest justifies the discrimination.                                                             



                             The dissent and the concurring opinion also fail to recognize governing  

                                                                                                                                                                  

                                                                                                 60 involving a constitutional challenge to  

precedent from Sands ex rel. Sands v. Green,  

                                                                                                                                                                                    

                                                                                                                    61  Earlier, in Evans ex rel. Kutch  

 1997's reformed statute of limitations tolling provision.                                                                                                                  

                                                                                                



              58             The    concurring    opinion's    conclusion    that    the    Notification    Law    is  



unconstitutional under a privacy rights analysis should make this abundantly clear.                                                                                               



              59             Compare Alaska Const. art. I,  22 ("The right of the people to privacy is  

                                                                                                                                                                                     

recognized and shall not be infringed."), and Ranney v. Whitewater Eng'g, 122 P.3d 214,  

                                                                                                                                                                               

221 (Alaska 2005)  ("The right  of  privacy protects  'fundamental rights of personal  

                                                                                                                                                                     

autonomy' . . . ." (quoting Sampson v. State, 31 P.3d 88, 94 (Alaska 2001))), with Alaska  

                                                                                                                                                                          

Const. art. I,  1 ("[A]ll persons are equal and entitled to equal rights, opportunities, and  

                                                                                                                                                                                 

protection under the law . . . ."), and State, Dep't of Health & Soc. Servs. v. Planned  

                                                                                                                                                                      

Parenthood of Alaska, 28 P.3d 904, 909 (Alaska 2001) ("Alaska's constitutional equal  

                                                                                                                                                                             

protection clause . . . protects Alaskans' right to non-discriminatory treatment . . . .");  

                                                                                                                                                                               

also compare Ravin v. State, 537 P.2d 494, 504 (Alaska 1975) (fundamental rights  

                                                                                                                                                                            

analysis), with Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271,  

                                                                                                                                                        

 1278-79 (Alaska 2013) (equal protection analysis).  

                                                                                         



              60             156 P.3d 1130 (Alaska 2007).  

                                                                               



              61            Id. at 1131-36.  

                                         



                                                                                        -18-                                                                                 7114
  


----------------------- Page 19-----------------------

                 62  

v.   State,    the   four-person  court   had   addressed   whether   the   new   provision   passed  



                                                                                                                                                  63  

constitutional equal protection muster, and two justices concluded that it did.                                                                             

                                                                                                                                                      In Sands  



                                                                                                                                                                

the same statutory provision was challenged on the different constitutional ground that  

                                                                                                                 64   We rejected the argument  

                                                                                                                                                      

                                                                                                       

it violated minors' due process rights of access to the court. 



- essentially the same argument raised here by the dissent and the concurring opinion  

                                                                                                                                                         



- that the first decision implicitly controlled the result in the second:  

                                                                                                                        



                          In  Evans,  we  assessed  the  constitutionality  of  subsection  

                                                                                                                         

                          .140(c) only within the context of equal protection.  We did  

                                                                                             

                          not  address  the  issue  that  we  address  today:                                                 whether  

                                                                                                                            

                          subsection .140(c) violates a minor's due process right to  

                                                                                                                                          

                          access the court system. We are similarly unpersuaded by the  

                                                                                                                                         

                          State's argument that we were "aware of the ramifications of  

                                                                                                                                          

                          [our Evans] decision" because "Justice Carpeneti pointedly  

                                                                                                                            

                          discussed those ramifications in a detailed dissent."  While  

                                                                                                                                  

                          the dissent in Evans did indeed discuss the ramifications of  

                                                                                                                                          

                          subsection   .140(c)   and   argue   that   those   ramifications  

                                                                                                                  

                          constitute a denial of equal protection, it - like the lead  

                                                                                                                                     

                          opinion - did not consider the specific issue of due process.  

                                                                                                                              



                                       That our Evans decision did not reach this particular  

                                                                                                                           

                          constitutional issue merely reinforces the wisdom of the rule  

                                                                                                                                       

                          that courts should generally avoid deciding abstract cases.[65]  

                                                                                                                              



             62           56 P.3d 1046 (Alaska 2002).                 



             63           Id.  at 1066 (concluding "subsection .140(c)'s disparatetreatment                                                          ofminors   



under the age of eight is rationally based and furthers legitimate state interests").                                                  



             64           Sands, 156 P.3d at 1133.  

                                                                



             65           Id. (alteration in original) (footnotes omitted).  

                                                                                                  



                                                                                -19-                                                                          7114
  


----------------------- Page 20-----------------------

                     In  Planned Parenthood II                   we answered the question whether the then-                      



                                                                                                                               66  

existing   parental   consent   law   violated   minors'   constitutional   privacy   rights,                                      and  



                                                                                                                             

declined to answer the question whether the then-existing parental consent law violated  

                                                                        67 Here we face the new and very different  

                                                                                                                            

                                                               

minors' constitutional equal protection rights. 



question whether the current parental notification law violates minors' constitutional  

                                                                                                                    



equal protection rights.  Suggesting that we somehow answered a question that was not  

                                                                                                                                     



actually asked in Planned Parenthood II is both incorrect and contrary to precedent.  In  

                                                                                                                                       



every case we decide what we decide, and nothing more.  

                                                                                  



                     In short, the Notification Law stands or falls on its own specific terms and  

                                                                                                                                    



stated justifications.  

           



                     2.         The equal protection analysis - overview  

                                                                                        



                     The  Alaska  Constitution's  equal  protection  guarantee  requires  "equal  

                                                                                                                              

treatment of those similarly situated."68  

                                                                                                                              

                                                               As we have previously explained in the context  



                                               

of a law treating two groups differently:  



                                                                                                       

                                When equal protection claims are raised, the question  

                                                                                        

                     is whether two groups of people who are treated differently  

                                                                                                           

                     are  similarly  situated  and  therefore  are  entitled  to  equal  

                                                                                                    

                     treatment  under  the  constitution.                      In  order  to  determine  

                                                                                                                

                     whether differently treated groups are similarly situated, we  

                                                                                                                      

                     look to the state's reasons for treating the groups differently.  



           66        Planned  Parenthood  II,   171  P.3d  577,  581  n.21,  583-86  (Alaska  2007).  



           67        Id.  at  581  n.21,  585.  



           68        State,  Dep't  of  Health  & Soc.  Servs.  v.  Planned  Parenthood  of  Alaska,  Inc.,  



28  P.3d  904,  909  (Alaska  2001)  (quoting  Alaska  Pac.  Assurance  Co.  v.  Brown,  687  P.2d  

264,  271  (Alaska   1984)).  



                                                                 -20-                                                            7114
  


----------------------- Page 21-----------------------

                             As a matter of nomenclature we refer to that portion of a law                                                            

                             that treats two groups differently as a "classification."                                                          [69]  



                             Todeterminewhether theNotificationLawdiscriminatesbetweensimilarly  

                                                                                                                                                                        

situated classes, we first decide which classes must be compared.70  The parties agree that  

                                                                                                                                                                                   



the  relevant  classes  are  pregnant  minors  seeking  termination  and  pregnant  minors  

                                                                                                                                                                          



seeking to carry to term.  We next determine if the challenged law has a discriminatory  

                                                                                                                                                          

purpose or is facially discriminatory - i.e., whether the classes are treated unequally.71  

                                                                                                                                                                                            



It is clear that the Notification Law treats the two classes of pregnant minors differently,  

                                                                                                                                                                  



burdening  the  fundamental  privacy  rights  of  those  seeking  termination  but  not  the  

                                                                                                                                                                                   

fundamental privacy rights of those seeking to carry to term.72                                                                            So when we examine  

                                                                                                                                                                        



whether these classes are similarly situated, we are asking a legal question:  Under the  

                                                                                                                                                                                    



applicable  scrutiny  level,  do  the  stated  rationales  for  the  Notification  Law  justify  

                                                                                                                                                                           



              69            Pub.   Emps.   Ret.   Sys.   v.   Gallant,  153   P.3d   346,   349   (Alaska   2007)  



(emphasisadded)                       (footnotes omitted). Similarlysee                                       Stanekv.            Kenai Peninsula Borough                                ,  

81 P.3d 268, 270-71 (Alaska 2003) (quoting extensively from                                                                                 Gonzales v. Safeway         

Stores,   Inc.,   882   P.2d   389,   396   (Alaska   1994))   explaining   that   we   view   statutory  

enactment with differentialtreatmentas creating                                                       separategroups                    and that weask whether           

such classification has sufficient government justification under the appropriate level of                                                                                            

scrutiny.  



              70             State v. Schmidt, 323 P.3d 647, 660 (Alaska 2014).  

                                                                                                                             



              71            Id. at 659 (citing Alaska Civil Liberties Union v. State , 122 P.3d 781, 788  

                                                                                                                                                                                  

(Alaska 2005); Alaska Inter-Tribal Council v. State , 110 P.3d 947, 956 (Alaska 2005)).  

                                                                                                                                                                                            

"When a 'law by its own terms classifies persons for different treatment,' the law is  

                                                                                                                                                                                      

facially discriminatory."  Id. (quoting Alaska Civil Liberties Union , 122 P.3d at 788).  

                                                                                                                                                                             



              72             See AS 18.16.020(a).  

                                              



                                                                                         -21-                                                                                  7114
  


----------------------- Page 22-----------------------

discriminating between pregnant minors who choose to terminate a pregnancy and those                                                    

who choose to carry to term?                     73  



                      The  State  agrees  with  the  foregoing  legal  framework.                                      The  Sponsors,  

                                                                                                                               

                                                                                         74   for  a  different  line  of  equal  

however,  cite  Alaska  Inter-Tribal  Council  v.  State                                                                              

                                                                                 



protection cases and argue that whether two classes are similarly situated is a threshold  

                                                                                                                                 



matter to be decided before considering whether there are valid reasons for treating them  

                                                                                                                                        



differently and that "similarly situated" is a question of fact reviewed for clear error.  

                                                                                                                                              



                      Alaska Inter-Tribal Council did not involve an equal protection challenge  

                                                                                                                                 



to a statute classifying two groups of people, but rather to an alleged geographically  

                                                                                                                       

discriminatory policy of police resource allocation in Alaska.75                                          In that context, citing a  

                                                                                                                                               



federal case, we stated that whether persons, groups, or entities "are similarly situated is  

                                                                                                                                              

                                               76   The federal case we relied upon similarly did not involve  

generally a question of fact."                                                                                                      

                                       



an equal protection challenge to a statute classifying two groups of people, but rather to  

                                                                                                                                             



an alleged selective enforcement of a zoning ordinance, i.e., discrimination against a  

                                                                                                                                              



           73         See,  e.g.,   Gallant,   153 P.3d at  351-55  (applying  independent  judgment);  



Stanek,  81  P.3d  at  269-71  (applying  independent  judgment);  Gonzales,  882  P.2d  at  396- 

99  (applying  independent  judgment).  



           74          110 P.3d at 947.  

                                           



           75         Id. at 966.  

                                         



           76         Id. at 967 (citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499  

                                                                                                                                          

n.2 (2d Cir. 2001)).  We ultimately concluded, in part, that the superior court's findings  

                                                                                                                                   

of fact about the various geographical locations "show that the superior court did not  

                                                                                                                                           

clearly err in finding that the two asserted similarities are not the relevant, much less the  

                                                                                                                                            

only relevant, points of comparison for determining the issue of similarly-situatedness."  

                                                                                                                                                  

Id. at 969 (emphasis in original).  

                                        



                                                                     -22-                                                              7114
  


----------------------- Page 23-----------------------

                               77  

"class of one."                     Alaska Inter-Tribal Council                                    did not purport to overrule the stated                             



framework when considering statutory enactments, used as early as 1994 in                                                                                 Gonzales v.   

                                            78   and  then  as  recently  as  2003  in  Stanek  v.  Kenai  Peninsula  

Safeway   Stores,   Inc.                                                                                                                                     

                    79   and  used  again  not  long  after  Alaska  Inter-Tribal  Council  in  Public  

Borough,                                                                                                                                                            



                                                                                     80  

Employees Retirement System v. Gallant.  

                                                                                          



                            We separately noted in Alaska Inter-Tribal Council  that there are some  

                                                                                                                                                                       



occasions when a full equal protection analysis may not be necessary because it is so  

                                                                                                                                                                              

exceedingly clear that the two classes in question are not similarly situated.81                                                                                     When  

                                                                                                                                                                     



              77            273 F.3d at 499.                   Although we do not need to delve into the matter now, a                                                          



close reading of this case suggests that the federal court actually may have applied a                                                                                          

mixed    question    of    fact    and    law    analysis,    looking    to    the    trial    court's    factual  

determinations about business locations and then applying independent judgment to                                                                                             

whether, given the facts found by the trial court, the zoning board had a rational basis for                                                                                 

its decision.             Compare id.                at n.2 and at 500-02.                       This would be consistent with the legal                                 

framework we use today.                                 



              78            882 P.2d at 396.  

                                                     



              79            81 P.3d 268, 270-71 (Alaska 2003).  

                                                                                         



              80            153 P.3d 346, 349-54 (Alaska 2007).  

                                                                                            



              81            110 P.3d at 967.  We will  summarily conclude that two classes are not  

                                                                                                                                                                            

similarly situated only in clear cases because "[s]uch a conclusion reflects in shorthand  

                                                                                                                                                              

the analysis traditionally used in our equal protection jurisprudence."  Shepherd v. State,  

                                                                                                                                                                       

Dep't  of  Fish  &  Game,  897  P.2d  33,  44  n.12  (Alaska  1995).   But  see  id.  at  46  

                                                                                                                                                                            

(Rabinowitz, J., concurring) (arguing that the shorthand analysis "inadequately analyzes  

                                                                                                                                                                 

the issue in this case" and "simply begs the question of whether the classification itself  

                                                                                                                                                                        

is reasonable and whether it justifies  disparate treatment").  

                                                                                                 



                            State v. Schmidt, 323 P.3d 647 (Alaska 2014), reflects a somewhat mixed  

                                                                                                                                                                      

approach.                Schmidt  involved  a  property  tax  exemption  scheme  for  certain  married  

                                                                                                                                                                  

property owners.  Id. at 651-53.  Same-sex couples then-barred under Alaska law from  

                                                                                                                                                                         

marrying raised an equal protection  challenge.  Id.  at 653-54.  We first cited Alaska  

                                                                                                                                                                    

                                                                                                                                                       (continued...)  



                                                                                     -23-                                                                               7114
  


----------------------- Page 24-----------------------

 combined   with   our   statement   that   whether   two   classes   are   similarly   situated   is  



 "generally" a question of fact, we may have created some ambiguity about the standard                                                                                                                                                                               



 of review for "similarly situated" when examining an equal protection challenge under                                                                                                                                                                                         



the "shorthand analysis" - is it a question of fact or is it a mixed question of fact and   



 law? Although we presently perceive no reason there would be a different underpinning                                                                                                                                                               



 for a shorthand analysis and a full analysis of an equal protection challenge to a statute                                                                                                                                                                              



 classifying two groups of people, we do not need to address that question here.                                                                                                                                                                        



                                             The superior court stated that our equal protection analysis applied to the                                                                                                                                                               



 extent the Notification Law"treats minors                                                                                                 opting to carry to termdifferently fromminors                                                                                   



 opting to abort." The court applied its fact-finding about pregnancies and abortions and                                                                                                                                                                                             



their interplay with the Notification Law's stated justifications to conclude - not with                                                                                                                                                                                           



 a shorthand analysis, not as a purported finding of fact, but rather as a matter of law -                                                                                                                                                                                                



that   once   a   minor   elected   to   undergo   an   abortion   the   justifications  for   medical  



 emancipation did not apply and the justifications for parental involvement applied more                                                                                                                                                                                         



heavily, so that she no longer was similarly situated with a minor electing to carry to                                                                                                                                                                                                    



                       81                    (...continued)  



                                                                                                                                                                                                                                                                   

Inter-Tribal Council for the proposition that "similarly situated" generally is a question  

                                                                                                                                                                                                                                                                  

 of fact.  Id. at 655.  We examined as a threshold matter whether committed same-sex  

                                                                                                                                                                                                                                                                                           

 couples who wanted (but were prohibited by law) to marry were similarly situated to  

                                                                                                                                                                                                                                                                                        

 opposite-sex couples who wanted to marry. Id. at 660-61.  But rather than resolving the  

                                                                                                                                                                                                                                                                                  

 "similarly situated" issue purely as a factual matter reviewed for clear error, or even  

                                                                                                                                                                                                                                                                                  

through a shorthand analysis of "similarly situated" as a factual matter reviewed for clear  

                                                                                                                                                                                                                                                                                

 error, we considered the superior court's factual findings about the similarities of long- 

                                                                                                                                                                                                                                                                                              

term commitments by same-sex domestic partners and married couples and held as a  

                                                                                                                                                                                                                                                                                        

matter of law that same-sex couples who would marry if allowed to do so were - for  

                                                                                                                                                                                                                                                                                            

purposes of the tax exemption program - similarly situated to married couples.  Id. at  

                                                                                                                                                                                                                                                                     

 661.   We then undertook the usual equal protection analysis to determine whether  

                                                                                                                                                                                                                                                                               

 discrimination between married couples and same-sex couples could be justified under  

                                                                                                                                                                                                                                                                

the government interests raised to support the tax exemption scheme.  Id. at 662-64.  



                                                                                                                                           -24-                                                                                                                                   7114
  


----------------------- Page 25-----------------------

 term.   We will review that legal conclusion under the framework outlined above and                                                                                                                                                                                                                                                     



 detailed more fully below.                                                   



                                                      3.                         Core equal protection analysis                                                                 



                                                      Our core equal protection analysis applies a flexible three-step sliding-                                                                                                                                                                                          



 scale:  



                                                      First, it must be determined at the outset what weight should                                                                                                                                                      

                                                      be   afforded  the   constitutional   interest   impaired   by   the  

                                                      challenged enactment. . . . Depending upon the primacy of                                                                                                                                                                            

                                                      the interest involved, the state will have a greater or lesser                                                                                                                                                        

                                                      burden in justifying its legislation.                                                                                                       



                                                                                 Second, an                                       examination must be undertaken of the                                                                                                               

                                                      purposes served by a challenged statute.                                                                                                                           Depending on the                                              

                                                      level of review determined, the state may be required to show                                                                                                                                                            

                                                      only that its objectives were legitimate, at the low end of the                                                                                                                                                                   

                                                      continuum, or, at the high end of the scale, that the legislation                                                                                                                                    

                                                      was motivated by a compelling state interest.                                                                                                                                         



                                                                                 Third,   an   evaluation   of   the   state's   interest   in   the  

                                                      particular   means   employed   to   further   its   goals   must   be  

                                                      undertaken.   Once   again,   the   state's   burden   will   differ   in  

                                                      accordance with the determination of the level of scrutiny                                                                                                                                                   

                                                      under the first stage of analysis. At the low end of the sliding                                                                                                                                                   

                                                      scale, we have held that a substantial relationship between                                                                                                                                                 

                                                      means and ends is constitutionally adequate.                                                                                                                                         At the higher   

                                                      end of the scale, the fit between means and ends must be                                                                                                                                                                           

                                                      much closer.                                         If the purpose can be accomplished by a less                                                                                                                         

                                                      restrictivealternative,                                                               theclassification                                                  will beinvalidated.                                                         [82]  



                                                                                 a.                        Step one  

                                                                                                                                



                                                      Step one of our  core equal protection  analysis requires evaluating  the  

                                                                                                                                                                                                                                                                                                                                           



 importance of the personal right infringed upon to determine the State's burden in  

                                                                                                                                                                                                                                                                                                                                                



justifying its differential infringement.   It has long been established that the Alaska  

                                                                                                                                                                                                                                                                                                                            



                            82                       Alaska  Pac.  Assurance  Co.  v.  Brown,  687  P.2d  264,  269-70  (Alaska  1984).  



                                                                                                                                                                     -25-                                                                                                                                                             7114  


----------------------- Page 26-----------------------

Constitution's   privacy   clause   guarantees   the   fundamental   right   to   choose   between  



                                                                                83  

pregnancy termination and carrying to term.                                                                                                               

                                                                                     And it has long been established that a  



                                                                                                                                                       84  

                                                                                                                                         

law burdening the fundamental right of reproductive choice demands strict scrutiny. 



                                                                                                                                              

                        Whether the Notification Law survives strict scrutiny "depends on whether  



                                                              

the [law] is narrowly tailored and whether there is a less restrictive alternative to meet  

                                       85   For the Notification Law "[t]o be narrowly tailored, there must  

                                                                                                                                                    

the [State's] interest." 



be  a  sufficient  nexus  between  the  stated  government  interest  and  the  classification  

                                                                                                                                    

created by the [law]."86   This nexus must not be too under- or over-inclusive; as we have  

                                                                                                                                                    



explained:  

                     



                        As the level of scrutiny selected is higher on the [sliding]  

                                                                                                                     

                        scale, we require that the asserted governmental interests be  

                                                                                                                                

                        relatively more compelling and that the legislation's means- 

                                                                                                                       

                        to-ends fit be correspondingly closer.  On the other hand, if  

                                                                                                                                 

                        relaxed scrutiny is indicated, less important governmental  

                                                                                                           

                        objectives  will  suffice  and  a  greater  degree  of  over/or  

                                                                                                                      



            83           Valley Hosp. Ass'n v. Mat-Su Coal. for Choice                                          , 948 P.2d 963, 968-69         



(Alaska 1997) (establishing fundamental privacy right for pregnant women);                                                                  Planned  

Parenthood I  , 35 P.3d 30, 40-41 (Alaska 2001) (extending fundamental privacy right to                                                                  

pregnant minors).   



            84          State, Dep't of Health &Soc. Servs. v. Planned Parenthood of Alaska, Inc.,  

                                                                                                                                                    

28 P.3d 904, 909 (Alaska 2001) ("The regulation at issue in this case affects the exercise  

                                                                                                                                              

of a constitutional right, the right to reproductive freedom.  Therefore, the regulation is  

                                                                                                                                                         

subject to the most searching judicial scrutiny, often called 'strict scrutiny.' " (footnote  

                                                                                                                                           

omitted)).   We reject the Sponsors' argument that the State only needs to advance a  

                                                                                                                                                          

rational basis for treating the two groups of pregnant minors differently because those  

                                                                                

seeking termination are a "nonsuspect classification."  

                                                                                                   



            85          Treacy v. Municipality of Anchorage, 91 P.3d 252, 266 (Alaska 2004).  

                                                                                                                                            



            86          Id. (quoting Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935, 946  

                                                                                                                                                     

(9th Cir. 1997)).  

                 



                                                                          -26-                                                                    7114
  


----------------------- Page 27-----------------------

                       underinclusiveness                   in     the      means-to-ends                fit    will      be  

                       tolerated.[87]  



                                   b.         Step two  

                                                        



                        Step two of our core equal protection analysis requires identifying and  

                                                                                                                                               



assessing the State's interests in differently burdening pregnant minors' fundamental  

                                                                                                                                



privacy rights.  To justify differently burdening fundamental privacy rights, the State's  

                                                                                                                                          

interests in doing so must be compelling.88                                     The State asserts two main interests as  

                                                                                                                                                  



justifying the Notification Law's disparate treatment of pregnant minors:  (1) "aiding  

                                                                                                                                         



parents to fulfill their parental responsibilities" and (2) "protecting minors from their  

                                                                                                                                              

immaturity."89  



            87         State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio                                                , 858 P.2d     



 621, 629 (Alaska1993) (alteration in original) (quoting                                      State v. Ostrosky           , 667 P.2d 1184,     

 1193 (Alaska 1983)).     



            88         A governmental interest must be more than legitimate to be "compelling."  

                                                                                                                              

To prove an interest compelling in the equal protection context, the State must show that  

                                                                                                                                                

the interest actually needs to be vindicated because it is significantly impaired at present.  

                                                                                                                                                       

See, e.g., Vogler v. Miller, 651 P.2d 1, 5-6 (Alaska 1982); Gray v. State, 525 P.2d 524,  

                                                                                                                                               

 528 (Alaska 1974); Breese v. Smith, 501 P.2d 159, 172 (Alaska 1972).  

                                                                                                                



                       Although  we  cite  cases  discussing  the  word  "compelling"   in  the  

                                                                                                                                         

 fundamental privacy rights context, the meaning of "compelling" as an adjective is the  

                                                                                                                                                 

 same in the equal protection context.  Where our fundamental privacy rights and equal  

                                                                                                                                             

protection analyses differ is in the necessary justification:  In the fundamental privacy  

                                                                                                                                         

rights context, the compelling interest must be important enough to justify infringing on  

                                                                                                                                                  

a right, but in the equal protection context, the compelling interest must be important  

                                                                                                                                     

 enough to justify treating two classes differently regarding such a right.  See supra note  

                                                                                                                                               

 59 and accompanying text.  

                                        



            89         In Planned Parenthood II the State asserted that the Consent Act served  

                                                                                                                    

 five governmental interests:   "(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  

                                                                                                                                           

                                                                                                                              (continued...)  



                                                                       -27-                                                                  7114
  


----------------------- Page 28-----------------------

                       We   accept   that   the   State   asserts   compelling   interests:    In   Planned  



Parenthood II            we said that "the State has an undeniably compelling interest in protecting                                  



the health ofminors and in fostering family involvement in a minor's decisions regarding                                               

                            90  And we later stated that "on the most generalized level," the State has  

her pregnancy."                                                                                                                                   



a compelling interest in "protecting minors fromtheir own immaturity and aiding parents  

                                                                                                                                           

in fulfilling their parental responsibilities."91   But we note that the interest in "protecting  

                                                                                                                                    



minors from their immaturity" requires context - immaturity in and of itself is not a  

                                                                                                                                                     



            89         (...continued)  



                                                                                                                                          

abuse; and (5) strengthen the parent-child relationship." 171 P.3d 577, 582 n.29 (Alaska  

                                                                                                                                           

2007). We grouped these interests into the "generalized" interests of "protecting minors  

                                                                                                                                                         

fromtheir own immaturity and aiding parents in fulfilling their parental responsibilities."  

           

Id. at 582.  



                                                                                                                                                

                       Here the State asserts that its interest in protecting minors from their own  

                                                                                                                                              

immaturity  includes  ensuring  that  they  use  "moral  imagination"  in  making  their  

                                                                                                                                                     

decisions.   We assume the State is not implying that minors seeking to terminate a  

                                                                                                                                               

pregnancy are more lacking in "moral imagination" than those seeking to carry to term  

                                                                                                                                        

or that one decision is more or less ethical than the other, but rather is simply asserting  

                                                                                                                                      

that  minors'  inability  to  fully  appreciate  ethical  concerns  puts  their  physical,  

                                                                                                                                              

psychological, and/or sexual health at greater risk such that they are in need of more  

                                                                                                                                      

protection.  Cf. State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska,  

                                                                                                                                     

Inc.,  28  P.3d  904,  905  (Alaska  2001)  ("Alone  among  Medicaid-eligible  Alaskans,  

                                                                                                                                                   

women whose health is endangered by pregnancy are denied health care based solely on  

                                                                                                                                                   

political disapproval of the medically necessary procedure.   This selective denial of  

                                                                                                                                             

medical benefits violates Alaska's constitutional guarantee of equal protection."); Valley  

                                                                                                                                  

Hosp. Ass'n v. Mat-Su Coal. for Choice, 948 P.2d 963, 971 (Alaska 1997) (concluding  

                                                                                                                                                

"matter of conscience" not a compelling governmental interest); Ravin v. State, 537 P.2d  

                                                                                                                                       

494, 509 (Alaska 1975) ("The state cannot impose its own notions of morality, propriety,  

                                                                                                                                                 

or fashion on individuals . . . .").  The State expressly stated at oral argument that it has  

                                                                                                                                       

no  interest,  compelling  or  otherwise,  in  affecting  a  pregnant  minor's  ultimate  

                                      

reproductive choice.  



            90         Planned Parenthood II, 171 P.3d at 579.  

                                                                                       



            91         Id. at 582.  

                                  



                                                                        -28-                                                                  7114
  


----------------------- Page 29-----------------------

harm. As we stated in                      Planned Parenthood II                        , "minors often do not possess the capacity                       



to make informed, mature decisions,                                      and are therefore susceptible to a host of pitfalls                                

                                                                       92    The State's interest in "protecting minors from  

and dangers unknown in adult life                                   ."                                                                                          



their immaturity" is in protecting minors fromspecific pitfalls and dangers to which their  

                                                                                                                                                                 



immaturity makes them especially susceptible.  We therefore will consider the State's  

                                                                                                                                                             



interest in "protecting minors from their immaturity" in the contexts of relevant stated  

                                                                                                          

harms:  risks to mental and physical health and from sexual abuse.93  

                                                                                                                      



                                       c.           Step three   



                          Having  determined   that   the   Notification   Law   (1)   burdens   a   class  of  



                                                                                                                                                                 

pregnant minors' fundamental privacy rights and (2) was motivated by compelling state  



                                                                                                                                                           

interests,  we  now  examine,  under  strict  scrutiny,  whether  vindicating  the  State's  



                                                                                                                                                         

compelling interests justifies imposing disparate burdens on the two groups of pregnant  



minors' fundamental privacy rights.                                      To survive strict scrutiny the Notification Law's                                   



                                                                                                                                                                    

disparate treatment of the two classes "must further a compelling state interest and be the  



                                                                                                                                94  

                                                                                                                                                

least restrictivemeans availableto accomplish thestate's purpose."                                                                  Ifthemeans-to-end  



                                                                                                                                                                    

fit between the State's purpose and the Notification Law is not close enough - if the  



                                                                                                                                                                

Notification Law is under-inclusive or over-inclusive - then it will not survive strict  

scrutiny.95  



             92           Id.  (emphasis  added).  



             93           See  supra  note  89.  



             94           Schiel  v.   Union  Oil  Co.  of  Cal.,  219  P.3d   1025,   1030  (Alaska  2009).  



             95           See  State  v. Ostrosky,  667  P.2d 1184, 1193  (Alaska   1983)  ("As  the  level  



of  scrutiny  selected  is  higher  .  .  .  we  require  that  .  .  .  the  legislation's  means-to-ends  fit  

be   correspondingly   closer.    On  the   other  hand,   if  relaxed   scrutiny   is   indicated,   .   .   .   a  

greater  degree  of  over[inclusiveness  ]or  underinclusiveness  in  the  means-to-ends  fit  will  

                                                                                                                                               (continued...)  



                                                                                 -29-                                                                           7114
  


----------------------- Page 30-----------------------

                                         i.         Parental involvement               96  



                                                                                                                    

                     WeconcludethatvindicatingtheState'scompellinginterest in encouraging  



                                                                                                                                 

parental  involvement  in  minors'  pregnancy-related  decisions  does  not  support  the  



                                                                                                              

Notification Law's disparate treatment of the two classes of pregnant minors.  Parents  



                                                                                                                            97  

                                                                                                                                 

do have an "important 'guiding role' to play in the upbringing of their children."                                              We  



                                                                                                                           

have said that "it is the right and duty, privilege and burden, of all parents to involve  



                                                                                                                         

themselves in their children's lives; to provide their children with emotional, physical,  



                                                                                                                           

and material support; and to instill in their children 'moral standards, religious beliefs,  



                                                        98  

                                                                                                                       

and elements of good citizenship.' "                        But as the State acknowledged at oral argument,  



                                                                                                                                  

this must be true for all pregnant minors' parents, not just those whose daughters are  



                    

considering termination.  



                                                                                                                                 

                     No one challenges the  superior  court's factual finding  that "[f]ew life  



                                                                                                                           

decisions could benefit more from consultation with supportive parents than a minor's  



                                                                                                                             

decision  to  carry  to  term;  the  decision  to  abort,  comparatively,  involves  far  fewer  



                                                                                                                                

enduring consequences."  All pregnant minors, not just those seeking termination, may  



          95         (...continued)  



      

be tolerated.").  



          96         We disagree with the dissent's contention that the issue before us is about  

                                                                                                                              

parents' constitutional rights to parent their children, rather than the State's restriction  

                                                                                                           

of fundamental privacy rights in violation of the Alaska Constitution's equal protection  

                                                                                                                       

guarantee. This appeal does not arise from a suit to enjoin the State from interfering with  

                                                                                                                                

a parent's constitutional rights as a parent.  This appeal arises from a suit to enjoin the  

                                                                                                                                  

State from restricting a minor's constitutional and statutory rights to pregnancy-related  

                                                                                                           

health care based solely on that minor's exercise of her fundamental privacy right to  

                                                                                                                           

reproductive choice.  

                                  



          97          Planned Parenthood II, 171 P.3d at 583 (quoting H.L. v. Matheson, 450  

                                                                                                    

U.S. 398, 410 (1981)).  

                                     



          98         Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 233 (1972)).  

                                                                                                                    



                                                                -30-                                                          7114
  


----------------------- Page 31-----------------------

need   their   parents'   assistance   and   counsel   when   making   reproductive   choices;   and  



parents who might counsel termination are as "entitled to the support of laws designed                                                     

                                                                                      99  to guide their children as are parents  

to aid [in the] discharge of [their] responsibility"                                                                                          

                                                                 100   Yet the Notification Law's effect is that only a  

who might counsel carrying to term.                                                                                                                      

                                                         



minor seeking termination obtains parental guidance and only the parents of a minor  

                                                                                                                                                



seeking terminationaregiven an opportunity to counseltheirdaughter aboutalternatives.  

                                                                                                                                                             



But absent acompellinginterest in limiting minors' pregnancy terminations and favoring  

                                                                                                                                             



their carrying to term - which the State does not assert - the State's compelling  

                                                                                                                                       



interest in fostering parental involvement extends equally to all pregnant minors and that  

                                                                                                                                                     



interest's vindication does not justify treating the classes differently.  

                                                                                                       



                        The State and the Sponsors contend that even if the importance of the  

                                                                                                                                                     



State's asserted interest in parental involvement is equal for  both classes, disparate  

                                                                                                                                          



treatment is justified because the State's interests eventually will be furthered for minors  

                                                                                                                                               



seeking to carry to term without parental notification, while furthering these interests for  

                                                                                                                                                      



minors seeking termination requires parental notification.  They contend that parents of  

                                                                                                                                                        



a minor seeking to carry to term inevitably will learn of the pregnancy and then can  

                                                                                                                                                     



            99          Id.  (first alteration in original) (quoting                         Bellotti v. Baird           , 443 U.S. 622, 639         



(1979)).  



            100         The dissent - alone - asserts that unequal treatment is warranted solely  

                                                                                                                                                

by the moral difference in the pregnant minors' choices:  "What similarity can there be  

                                                                                                                                                       

between a decision to terminate life and a decision to preserve life?" Dissent at 72. This  

                                                                                                                                                    

moral distinction is unsupported by any asserted State interest justifying the Notification  

                                                                                                                                      

Law, and it can lead only to a conclusion that the "wrong choice" launches a pregnant  

                      

minor into a category of dissimilarity subjecting her to greater governmental interference  

                                                                                                                                      

than a pregnant minor who makes the "right choice."   It is telling that the dissent's  

                                                                                                                                           

objectiontointerferencewithparental rights toparticipatein aminor's pregnancy-related  

                                                                                                                           

health care is limited to the right to counsel against an abortion, and does not include the  

                                                                                                                                                      

right to counsel against the more  medically  dangerous  decision  to  carry  to  term.  

                                                  



                                                                          -31-                                                                    7114
  


----------------------- Page 32-----------------------

further the asserted governmental interests by counseling and assisting the minor. They                                                                                                                                                    



also contend that because an abortion can be kept secret, absent notification parents may                                                                                                                                                     

not learn of it in time to provide counseling and assistance.                                                                                                              101  



                                                                                                                                                                                                                               

                                       Based on its evaluation of testimony regarding policies of Alaska hospitals,  



                                                                                                                                                                                                                                                   

surgical centers, and health care providers, the superior court found that in Alaska an  



                                                                                                                                                                                                                                                 

abortion generally is unavailable after about 14 weeks' gestation.   After that point the  



                                                                                                                                                                                                                                   

decision to carry to termbecomes essentially irreversible, and the opportunity to exercise  

                                                                                 102        Trial testimony also reflected that it is possible for a  

                                                                                                                                                                                                                                                      

reproductive choice is lost. 



pregnancy to be kept secret well past 14 weeks' gestation. Accordingly, parents learning  

                                                                                                                                                                                                                                   



of  a  minor's  pregnancy  after  14  weeks  will  have  lost  the  opportunity  to  provide  

                                                                                                                                                                                                                                  



meaningful advice about reproductive choice; the State's interest in ensuring that parents  

                                                                                                                                                                                                                                      



have the opportunity to provide such advice thus is not necessarily furthered by the  

                                                                                                                                                                                                                                                



inevitability of the pregnancy becoming obvious.  

                                                                                                                      



                    101                The State also argues that there is no opportunity to notify parents when                                                                                                                          



minors choose to carry to term.   See  AS 25.20.025(a)(4) (permitting minors to receive                                                                                                                                      

medical treatment related to the "diagnosis, prevention, or treatment of pregnancy"                                                                                                                                    

without parental consent). But physicians could be statutorily required to notify parents                                                                                                                                            

of minors seeking any pregnancy-related medical care, just as the Notification Law                                                                                                                                                          

requires   notifying   parents   of   minors   seeking   pregnancy   termination.     The   relative  

wisdom of such a requirement, of course, is within the legislature's province, not ours,                                                                                                                                                   

and we express no opinion whether such a requirement would survive a privacy-based                                                                                                                             

constitutional challenge.   



                    102                The Sponsors argued in their briefing that carrying a child to term is not a  

                                                                                                                                                                                                                                                       

choice because it is the natural result of pregnancy absent a decision to terminate.  But  

                                                                                                                                                                                                                                               

at oral argument the Sponsors conceded that the mutually exclusive decision faced by  

                                                                                                                                                                                                                                                  

a pregnant minor is carrying to term or termination.  Cf. State, Dep't of Health & Soc.  

                                                                                                                                                                                                                 

Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 913 (Alaska 2001) ("[A]  

                                                                                                                                                                                                                                          

woman who carries her pregnancy to term and a woman who terminates her pregnancy  

                                                                                                                                                                                                                            

exercise the same fundamental right to reproductive choice.").  

                                                                                                                                                        



                                                                                                                       -32-                                                                                                                 7114
  


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                                                                              ii.                 Minors' physical and mental health                                                          



                                       The State asserts an interest in protecting minors' physical and mental                                                                                                                           



health.   But, again, we conclude that this general interest alone cannot justify disparate                                                                                                                                        



treatment based upon a pregnant minor's decision to terminate or carry to term.                                                                                                                                                                 The  



Sponsors more specifically argue that abortion entails unique medical risks not present                                                                                                                                                 



when   carrying   to   term,   such   as   post-abortion   complications,   warranting   parental  



involvement. But the superior court found that abortion raises                                                                                                                      fewer  health concerns for                                        



minors than does giving birth, that abortion is "quintessentially" and "extraordinarily"                                                                                                                    



safe, and that "the majority consensus of American psychiatry is that abortion does not                                                                                                                                                             

                                                               103   The court noted that four doctors who had performed abortions  

cause mental illness."                                                                                                                                                                                                             



in Alaska testified at the trial, and none indicated parental notification was medically  

                                                                                                                                                                                                                                 



                    103                See also Gonzales v. Carhart                                                          , 550 U.S. 124, 183 n.7 (2007) (Ginsburg, J.,                                                                              



dissenting) ("[N]either the weight of the scientific evidence to date nor the observable                                                                                                                                      

reality of 33 years of legal abortion in the United States comports with the idea that                                                                                                                                                            

having an abortion is any more dangerous to a woman's long-term mental health than                                                                                                                                                               

delivering and parenting a child that she did not intend to have . . . ." (quoting Susan A.                                                                                                                                                            

Cohen,  Abortion and Mental Health:                                                                          Myths and Realities                                        , 9 G         UTTMACHER  POL'Y  REV.  

                                                                                                                                                                                                                                                 

8 (2006))); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 429 n.11  

                                                                                                                                                                                                                            

(1983) ("There is substantial evidence that developments in the past decade, particularly  

                                                                                                                          

the development of a much safer method for performing second-trimester abortions . .  

                                                                                                                                                                                                                               

 . have extended the period in which abortions are safer  than childbirth." (emphasis  

                                                                                                                                                                                                                                                  

added)), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505  

                                                                                                                                                   

U.S. 833, 882 (1992); Beal v. Doe, 432 U.S. 438, 445 (1977) (accepting assertion that  

                                                                                                                                                                                                                                                         

"an early abortion poses less of a risk to the woman's health than childbirth"); Roe v.  

                                                                                                                                                                                                                                  

 Wade, 410U.S. 113,149(1973) ("Mortality rates forwomen undergoing earlyabortions,  

                                                                                                                                                                                                                                        

where the procedure is legal, appear to be as low as or lower than rates for normal  

                                                                                                                                                                                                                                   

childbirth."); Isaacson v. Horne, 716 F.3d 1213, 1224 (9th Cir. 2013) ("The Supreme  

                                                                                                                                                                                                                      

Court has recognized that . . . improvements in medical technology will . . . push later  

                                                                                                                                                                                                                             

in pregnancy the point at which abortion is safer than childbirth . . . ."); cf. Casey, 505  

                                                                                                                                                                                                                                                                 

U.S. at 860 ("We have seen how time has overtaken some of Roe 's factual assumptions:  

                                                                                                                                                                                                                                

advances in maternal health care allowfor abortions safe to the mother later in pregnancy  

        

 . . . .").  



                                                                                                                         -33-                                                                                                                  7114
  


----------------------- Page 34-----------------------

helpful; the doctors testified that minors are capable of providing their own medical                                                                                                                                                                                                                                                                                                                                           



histories   and   managing   post-abortion   care.     The   court   also   found   that   "[p]arental  



involvement is not required to manage complications, which are relatively rare and                                                                                                                                                                                                                                                                                                                                                                     



generally resolved by an obvious, immediate medical response."                                                                                                                                                                                                                                                                                                 In short neither the                                                                        



 Sponsors nor the State established that the medical risks of pregnancy termination justify                                                                                                                                                                                                                                                                                                                                                



the Notification Law's disparate treatment of pregnant minors.                                                                                                                                                                                                                                      



                                                                       The State also contends that its interest in protecting minors' health is                                                                                                                                                                                                                                                                                                                 



implicated differently when minors seek to carry to term because parental notification                                                                                                                                                                                                                                                                                                                        



discourages pregnant minors fromobtaining                                                                                                                                                                                               prenatal medical care. The                                                                                                                    Stateasserts                                                      that  



it thus has a more "limited" health interest in minors seeking termination which justifies                                                                                                                                                                                                                                                                                                                                        



treating them differently from those seeking to carry to term.                                                                                                                                                                                                                                                                                       But if the specter of                                                                                     



parental notificationwoulddiscouragepregnantminors                                                                                                                                                                                                                                             fromseekingtimely                                                                                          medical care  



 consistent with their statutory and constitutionally protected fundamental privacy right                                                                                                                                                                                                                                                                                                                                                         



to carry to term, then logically it also would discourage those seeking timely medical                                                                                                                                                                                                                                                                                                                                           



 care   consistent   with   their   constitutionally   protected   fundamental   privacy   right   to  



terminate.   And because the superior court found that in Alaska an abortion generally is                                                                                                                                                                                                                                                                                                                                                                          



unavailable after about 14 weeks' gestation, time is of the essence.                                                                                                                                                                                                                                                                                                 Absent a valid and                                                                 



 compelling interest indiscouraging terminationand                                                                                                                                                                                                                            favoringcarrying to term, an interest                                                                                                                   



the State expressly denied at oral argument, we conclude that the State's interest in                                                                                                                                                                                                                                                                                                                                                                           



protecting the health of a minor seeking termination is equal to its interest in protecting                                                                                                                                                                                                                                                                                                                           

the health of a minor seeking to carry to term.                                                                                                                                                                                                      104  



                                    104                                In fact, the implication of the State's argument is that parental notification                                                                                                                                                                                                                                                          



hinders  the State's interest in protecting minors' health by discouraging and potentially                                                                                                                                                                                                                                                                                                                         

delaying them from obtaining constitutionally protected medical treatment.  If there is  

                                                                                                                                                                                                                                                                                                                                                                                                                                   

no medically or psychologically inferred difference between pregnant minors making  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

reproductive choices, and if the State has no interest in which reproductive choice is  

                                                                                                                                                                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                                                                                                            -34-                                                                                                                                                                                                                   7114
  


----------------------- Page 35-----------------------

                            The concurring opinion echoes another State argument that "[p]regnant                                                         



minors   seeking   to   carry   their   pregnancies   to   term and                                                    pregnant   minors  seeking   to  



terminate their pregnancies do not face the same choice" because "the pregnant minor  



who seeks to carry her pregnancy to termdoes not strictly need medical treatment" while                                                                                



 "[t]he pregnant minor who seeks to terminate her pregnancy . . . cannot do so without                                                                             

                                          105     This arbitrary distinction is untethered to the State interests  

medical treatment."                                                                                                                                              



justifying  the  Notification  Law  and  is  inconsistent  with  the  rationale  for  medical  

                                                                                                                                                                 



 emancipation.  



                            Until actually seeking pregnancy-related medical care the only difference  

                                                                                                                                                              



between a minor seeking to terminate a pregnancy and a minor seeking to carry to term  

                                                                                                                                                                         

 is the constitutionally protected choice each is making.106                                                              But once both minors seek  

                                                                                                                                                                         



pregnancy-related medical care, the Notification Law allows the minor seeking to carry  

                                                                                                                                                                        



to  term  to  immediately  consent  to  and  receive  treatment  while  requiring  parental  

                                                                                                                                                                 



notification before the minor seeking termination may consent to and receive treatment.  

                                                                                                                                                                                    



 The statutory mandate that abortions be performed by doctors does not eliminate the  

                                                                                                                                                                            



justification  for  medical  emancipation  -  encouraging  minors  to  seek  timely  legal  

                                                                                                                                                                        



              104           (...continued)  



                                                                                                                                                            

made, under its own theory the Notification Law is detrimental to the State's compelling  

                                                                                                        

 interest in protecting the health of minors seeking termination.  



              105           See AS 18.16.010(a)(1) ("An abortion may not be performed in this state  

                                                                                                                                                                         

unless . . . by a physician . . . .").  

                                                            



              106           Cf. Planned Parenthood of Alaska, Inc., 28 P.3d at 913 ("[A] woman who  

                                                                                                                                                                          

 carries her pregnancy to term and a woman who terminates her pregnancy exercise the  

                                                                                                                                                                            

 same fundamental right to reproductive choice.").  

                                                                                    



                                                                                     -35-                                                                               7114
  


----------------------- Page 36-----------------------

                                                                                                                                                                                                                                                                                                                                     107  

medical care they otherwise might forgo or delay for fear of parental involvement                                                                                                                                                                                                                                                              -  



and does not necessitate disparate treatment of the two groups.                                                                                                                                                              



                                                                                                           iii.                       Sexual abuse prevention                                  



                                                     WeconcludethattheState'sinterestin                                                                                                                    protecting minors fromsexual abuse                                                                                       



must be the same whether a pregnant minor seeks termination or seeks to carry to term.                                                                                                                                                                                                                                                                        



The   superior   court   found   that   parental   notification   in   and   of   itself   would   not  



meaningfully advance the State's interest in protecting minors from sexual abuse.                                                                                                                                                                                                                                                     And  



the State and the Sponsors point to no evidence that pregnant minors seeking termination                                                                                                                                                                                                                    



are more likely to have been sexually abused - and therefore more in need of protection                                                                                                                                                                                                                           



-  than those seeking to carry to term. The Sponsors cite testimony that pregnant minors                                                                                                                                                                                                                                      



could be pressured by peers into seeking termination and speculate that the pressure                                                                                                                                                                                                                                   



could come from "those seek[ing] to hide illegal sexual activity."                                                                                                                                                                                                 But the Sponsors cite                                                   



no evidence that pregnant minors seeking termination are more likely to have been                                                                                                                                                                                                                                                    



involved in "illegal sexual activity," are less likely or able to report sexual abuse, or are                                                                                                                                                                                                                                                



disproportionately   more   likely   to   have   been   pressured   to   seek   termination   -   and  

                                                                                                                                                                                                                                                                                                           108   No facts  

therefore more in need of protection - than those seeking to carry to term.                                                                                                                                                                                                                                                            



                           107                       As evidenced by the multitude of illicit abortions performed in this country                                                                                                                                                                                          



before  Roe v. Wade                                                          , restrictive abortion laws do not guarantee compliance.                                                                                                                                                                  See  410 U.S.   

 113, 150 (1973) (recognizing "high mortality rates at illegal 'abortion mills' ").                                                                                                                                                                                                                                



                           108                        Even were we to assume that reporting sexual abuse is correlated with  

                                                                                                                                                                                                                                                                                                                                       

maturity, we note that the superior court did not find that minors seeking termination  

                                                                                                                                                                                                                                                                                                           

were less mature than minors seeking to carry to term.  To the contrary, the court noted  

                                                                                                                                                                                                                                                                                                                                   

that minors seeking termination may in some ways be more mature than those seeking  

                                                                                                                                                                                                                                                                                                                           

to carry to term, including being more likely to have "high educational accomplishments  

                                                                                                                                                                                                                                                                                     

or aspirations . . .[,] a greater ability to conceptualize the future, and a greater sense of  

                                                                                                                                                                                                                                                                                   

control over their lives."  The State and the Sponsors appeal this point, but they offer no  

                                                                                                                                                                                                                                                                                                                                                

evidence showing that pregnant minors seeking termination are less mature than those  

                                                                                                                                                                                                                                                                                                                                    

 seeking to carry to term.  

                                                                                                    



                                                                                                                                                                     -36-                                                                                                                                                             7114
  


----------------------- Page 37-----------------------

before us demonstrate that vindicating the State's                                                                                                                                                                                                                                                                                                      compelling interest in protecting                                                                                                                    



minors from sexual abuse justifies requiring that parents of minors seeking termination                                                                                                                                                                                                                                                                                                                                                                                                                



be notified without requiring the same for parents of minors seeking to carry to term.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                



And neither the dissent nor the concurring opinion expressly disputes this conclusion.                                                                                                                                                                                                                                                                                                                                                                                                              



                                                                                                                                   d.                                          Conclusion  



                                                                                       We   must   conclude   that   the   State's   asserted   interests   do   not   justify   a  



 distinction between pregnant minors seeking to terminate and those seeking to carry to                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



term.   Despite the factual difference between the two classes of pregnant minors, as a                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



matter of law they are similarly situated with respect to the Notification Law.                                                                                                                                                                                                                                                                                                                                                                                                                                                                   The  



Notification Law is under-inclusive because the governmental interests asserted in this                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 case are implicated for all pregnant minors - as they face reproductive choices and as                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



they live with their decisions - and the asserted justifications for disparate treatment                                                                                                                                                                                                                                                                                                                                                                                                                            



based upon a minor's actual reproductive choice are unconvincing.                                                                                                                                                                                                                                                                                                                                                                                               The Notification   



 Law's discriminatory barrier to those minors seeking to exercise their fundamental                                                                                                                                                                                                                                                                                                                                                                                                           

privacy right to terminate a pregnancy violates Alaska's equal protection guarantee.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 109  



                                            109                                        We make another observation about the dissent, which - unlike all of the                                                                                                                                                                                                                                                                                                                                                                                                



parties - contends that the Notification Law is not a real barrier to a mature minor's                                                                                                                                                                                                                                                                                                                                                                                                                                        

 ability to obtain the medical care necessary to terminate a pregnancy. The dissent argues                                                                                                                                                                                                                                                                                                                                                                                                                                              

that as a practical matter the Notification Law is not a barrier to abortion access because:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

 (1)  only one parent has to be notified; (2) there is an exception for the protection of the                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

minor's life; and (3) the "easily navigable" judicial bypass mechanism presents "an                                                                                                                                                                                                                                                                                                                                                                                                           

 almost negligible hurdle."                                                                                                                                                 Dissent at 75-76.                                                                                                       The obvious counter-argument would be                                                                                                                                                                                                                          

that if the Notification Law really is not a barrier to medical treatment for a minor                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 seeking to terminate a pregnancy, it really would not be a barrier to a minor seeking to                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

 carry to term.  Yet the dissent acknowledges that for a minor seeking to carry to term,                                                                                                                                                                                                                                                                       

parental notification would be a potential barrier to access to prenatal care. It is virtually                                                                                                                                                                                                                                                                                                                                                                                                                              

undisputed thataminor's                                                                                                                                            access to any kind of pregnancy-related health careis                                                                                                                                                                                                                                                                                             burdened  

by parental involvement - there otherwise would be no need for medical emancipation                                                                                                                                                                                                                                                                                                                                                                                                        

 statutes.    The question here is whether - given its stated justifications - the State                                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                                                                                                                                             -37-                                                                                                                                                                                                                                                                   7114
  


----------------------- Page 38-----------------------

                      Our   decision   today   is   not   novel.     Over   15   years   ago   the   New   Jersey  



Supreme Court considered whether                              a similar law violated that state's similar equal                      

                                   110  New Jersey's Constitution does not contain the explicit privacy  

protection guarantee.                                                                                                             



guarantee that Alaska's Constitution  does, but the court began  its equal protection  

                                                                                                                             



analysis  by  noting  that  New  Jersey's  Constitution  -  like  Alaska's  -  "more  

                                                                                                                                   



expansive[ly]" protects "the right of privacy and its concomitant rights, including a  

                                                                                                                                            



woman's right to make certain  fundamental choices," than  does the United  States.  

                                                                                                                                   

Constitution.111  The court held that the parental notification law was subject to the "most  

                                                                                                                                     



exacting scrutiny" and that it "significantly burden[ed the rights of] unemancipated  

                                                                                                                     

women seeking abortions."112  The court reasoned that the law would create impediments  

                                                                                                                          



preventing minors from exercising their constitutional rights, an unacceptable outcome  

                                                                                                                                 

"without substantial adequate justification for the classification."113  

                                                                                   



                      The  New  Jersey  court  considered  each  of  the  asserted  governmental  

                                                                                                                       



interests raised here by the State and the Sponsors - protecting minors from their own  

                                                                                                                                       



           109        (...continued)  



                                                                                                                                            

constitutionally can burden access to only that pregnancy-related medical care related to  

                        

terminating a pregnancy.  



           110        See generally Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620  

                                                                                                                                        

(N.J. 2000) (considering law requiring parental notification or judicial waiver before  

                                                                                                                                    

minor could obtain abortion).  

                                 



           111        Id. at 631-33; see also Planned Parenthood II, 171 P.3d 577, 581 (Alaska  

                                                                                                                                  

2007) ("Because [Alaska's constitutionally protected] right to privacy is explicit, its  

                                                                                                                           

protections are necessarily more robust and 'broader in scope' than those of the implied  

                                                                                                                                  

federal right to privacy." (quoting  Ravin v. State, 537 P.3d 494, 515 (Alaska 1975)  

                                                                                                                                     

(Boochever, J., concurring))).  

                                                   



           112        Farmer, 762 A.2d at 633.  

                                                          



           113        Id. at 636.  

                                        



                                                                    -38-                                                              7114
  


----------------------- Page 39-----------------------

immaturity, fosteringfamily                                  communications,andprotecting parents' rights                                                       toraisetheir     



children - and determined that mandatory parental notification of planned pregnancy                                                                                 

                                                                                           114  The court concluded that "the New Jersey  

terminations did not further those interests.                                                                                                                                



Constitution does not permit the State to impose disparate and unjustifiable burdens on  

                                                                                                                                                                                     



different classes of young women when fundamental constitutional rights hang in the  

                                                                                                                                                                                    

balance."115                 The court also made the following prescient statement, with which we  

                                                                                                                                                                                   



agree:  



                             We emphasize that our decision in no way interferes with  

                                                                                                                                                    

                             parents'  protected  interests,  nor  does  it  prevent  pregnant  

                                                                                                                                          

                             minors or their physicians from notifying parents about a  

                                                                                                                                                           

                             young woman's choice to terminate her pregnancy.  Simply,  

                                                                                                                                             

                             theeffectofdeclaring thenotification statuteunconstitutional  

                                                                                                                            

                             is to maintain the State's neutrality in respect of a minor's  

                                                                                                                                            

                             child-bearing  decisions  and  a  parent's  interest  in  those  

                                                                                                                                                 

                             decisions.  In effect, the State may not affirmatively tip the  

                                                                                                                                                       

                             scale   against   the   right   to   choose   an   abortion   absent  

                                                                                                                                              

                             compelling reasons to do so.[116]  

                                                                                     



                             The dissent nonetheless contends we are out of the mainstream of judicial  

                                                                                                                                                                          



reasoning,  pointing  to  other  jurisdictions  with  either  parental  consent  or  parental  

                                                                                                                                                                        



notification laws in place.  But this contention is unsupported by any serious judicial  

                                                                                                                                                                          



reasoning tied to the required equal protection analysis under the Alaska Constitution:  

                                                                                                                                                                                            



Relevant inquiries about each jurisdiction's laws are conspicuously absent.  

                                                                                                                                                   



               114          Id.  at 636-39.                The court noted evidence that cesarean sections, which did                                                               



not have a parental notification requirement, were more dangerous for pregnant minors                                                                                       

than were abortions and that minors seeking terminations for the most part were not                                                                                                

immature.   Id.  at 636-37.   



               115          Id. at 638.  

                                          



               116          Id. at 622.  

                                          



                                                                                         -39-                                                                                  7114
  


----------------------- Page 40-----------------------

                                                             Does that jurisdiction have the same broad fundamental privacy right for   



 a minor's reproductive choice as conferred by the Alaska Constitution?                                                                                                                                                                                                                                                                        The answer   



 obviously   must   be   "no"   for   any   jurisdiction   with   a   parental   consent   law   or   any  



jurisdiction with privacy or liberty rights co-extensive with those of the United States                                                                                                                                                                                                                                                                                 



 Constitution.     Does   the   jurisdiction   have   the   same   equal   protection   guarantee   as  



 conferred   by   the   Alaska   Constitution?  And   if   it   does:     (1)   what   weight   does   that  



jurisdiction give to a minor's privacy interest; (2) what are the government's asserted                                                                                                                                                                                                                                                                         



 interests and what weight does that jurisdiction give them; and (3) what level of scrutiny                                                                                                                                                                                                                                                                      



 does   the   jurisdiction   apply?    If   the   jurisdiction   does   not   afford   minors  the   same  



 fundamental privacy right to reproductive choice as Alaska, or if the jurisdiction asserts                                                                                                                                                                                                                                                                            



 more compelling governmental interests in limiting minors' abortion rights than does                                                                                                                                                                                                                                                                                          



 Alaska,  then  the   weighing   of   interests   -   even   under   our   own   equal   protection  

 framework - likely would render a different result.                                                                                                                                                                                       117  



                                                             The bare assertion that some other jurisdictions have parental consent or  

                                                                                                                                                                                                                                                                                                                                                                                           



 notification laws conflates different constitutional interests and protections and lends  

                                                                                                                                                                                                                                                                                                                                                                            



 nothing to the required equal protection analysis under the Alaska Constitution.  For  

                                                                                                                                                                                                                                                                                                                                                                                 



                               117                           We reiterate that our decision today is based on the limited State interests                                                                                                                                                                                                                      



 raised as the Notification Law's justification.                                                                                                                                                                 The dissent criticizes that we have not                                                                                                                             

 identified exactly what is wrong with the Notification Law's language and that our                                                                                                                                                                                                                                                                                                 

 decision means no notification law can ever be worded to pass equal protection muster                                                                                                                                                                                                                                                                                

 in Alaska.                                     Our response - again - is that the Notification Law's problem is not with                                                                                                                                                                                                                                                       

 wording,   but   rather   with   the   lack  of   an   acceptable   justification   for   discriminating  

 between pregnant minors based on how they exercise their fundamental privacy right to                                                                                                                                                                                                                                                                                                      

 reproductive choice:                                                                            The equal protection clause guarantees that the State may not                                                                                                                                                                                                                       

 discriminatebetween                                                                            individuals with respect to a fundamental right unless a compelling                                                                                                                                                                           

 governmental interest justifies the discrimination.                                                                                                                                                                           See supra                                     note 59 and accompanying                              

 text.  



                                                                                                                                                                                          -40-                                                                                                                                                                                 7114
  


----------------------- Page 41-----------------------

                                                                                                                                                                           118  

example, relying on                        Planned Parenthood of Southeastern Pennsylvania v. Casey                                                                      ,      the  



dissent asserts that the United States Supreme Court "has clearly explained" that a state                                                                                    



may legitimately enact laws "designed to encourage a woman contemplating abortion to                                                                                                



be   informed   regarding   the   effects   that   abortion   may   have   on  her  and   regarding  

                                                       119       The  dissent  therefore  concludes  that  the  State  has  a  

alternatives   to   abortion."                                                                                                                                                      

legitimate interest in the Notification Law that today's decision "trivializes."120  

                                                                                                                                        



                            We do not disagree with the dissent's characterization of Casey. But Casey  

                                                                                                                                                                           



involved the balancing of a woman's liberty interest and a state interest in preserving  

                                                                                                                                                                 

                                                                                                            121      In the case before us:   (1) the  

unborn life  under the United States Constitution.  

                                                                                                                                                                                



fundamental  right  of  privacy  and  the  right  of  equal  protection  under  the  Alaska  

                                                                                                                                                                        



Constitution are at issue; (2) the State expressly disavowed any governmental interest in  

                                                                                                                                                                                   



the ultimate reproductive choice made by pregnant minors, i.e., the State did not assert  

                                                                                                                                                                           

a compelling interest in preserving unborn life;122 and (3)as discussed extensively above,  

                                                                                                                                                                          



the compelling State interests justifying the Notification Law do not include requiring  

                                                                                                                                    



pregnant  minors  to  be  informed  of  the  "effects"  of  abortion  or  the  alternatives  to  

                                                                                                                                                                                  



abortion, but rather include aiding parents to fulfill their parental responsibilities and  

                                                                                                                                                                               



              118           505 U.S. 833 (1992).          



              119           Dissent at 65.         



              120           Dissent at 66.         



              121           505 U.S. at 869-79.       



              122           Any   balancing   -   under   the   Alaska   Constitution   -   of   a   woman's  



fundamental privacy right of reproductive                                               choice and a hypothetical government interest                                   

in limiting abortions and preserving unborn life is not before us.  To avoid any future  

                                                                                                                                                                           

misunderstanding, we note that our  Casey discussion here is not intended to be an  

                                                                                                                                                                                  

explicit or implicit approval or disapproval of any position on such an abstract question.  

                                                                                                                                                                    



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----------------------- Page 42-----------------------

                                                                                                                                                                                                                                                             123  

 protecting minors fromrisks to mental and physical health and fromsexual abuse.                                                                                                                                                                                      The  



 parties did not cite  Casey  in their briefing, nor did they make the immaterial argument                  



 the dissent advances.              



                      B.                   Privacy  



                                           Part II of the concurring opinion, to which three justices agree, concludes  

                                                                                                                                                                                                                                                   



 that  a  number   of  the  Notification  Law's  provisions  violate   pregnant  minors'  

                                                                                                                                                                                                                                                       



 constitutional privacy rights.  But because the Notification Law cannot stand in the face  

                                                                                                                                                                                                                                                                      



 of the Alaska Constitution's equal protection guarantee, it is unnecessary to decide -  

                                                                                                                                                                                            



 and it is not decided - whether invalidation of those provisions on the constitutional  

                                                                                                                                                                                                                                        

 privacy  ground  renders  the  Notification  Law  unenforceable  in  its  entirety.124                                                                                                                                                                                 We  

                                                                                                                                                                                                                                                                     



                      123                  Given the dissent's viewpoint on the morality of abortion and its emphasis                                                                                                                                 



 on parents' constitutional rights to instill moral standards and religious beliefs in their   

 children,   the   dissent   apparently   presumes,   without   regard   to   any   of   the   stated  

justifications for theNotification Law,                                                                                  that parentswouldfollowthedissent'smoral                                                                                                   code  

 and try to persuade their pregnant daughters not to have abortions.                                                                                                                                                           Some probably   

 would.   Some probably would not.                                                                               Casey  itself is instructive in this regard:                                                              



                                                                Men and women of good conscience can disagree, and                                                                                                            

                                           we suppose some always shall disagree, about the profound                                                                                                        

                                           moral and spiritual implications of terminating a pregnancy,                                                                                            

                                           even in its earliest stage.                                                          Some of us as individuals find                                                             

                                           abortion offensive to our most basic principles of morality,                                                                                                     

                                           but that cannot control our decision.                                                                                     Our obligation is to                                         

                                           define the liberty of all, not to mandate our own moral code.                                                                                                                



 505 U.S. at 849.                     



                      124                  Cf.  Planned  Parenthood  II,  171  P.3d  577,  581  n.21  (Alaska  2007)  

                                                                                                                                                                                                                                                              

 (declining to address equal protectionclaimafterholdinglawunconstitutionalon privacy  

                                                                                                                                                                                                                                                            

 grounds); State, Dep't of Health & Soc. Servs. v. Valley Hosp. Ass'n, 116 P.3d 580, 584  

                                                                                                                                                                                                                                                                        

 (Alaska 2005) (noting court has a "practice of reaching constitutional issues only when  

                                                                                                                                                                                                                                                                  

 the case cannot be fairly decided on statutory or other grounds" (citing Kenai Peninsula  

                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                    -42-                                                                                                                            7114
  


----------------------- Page 43-----------------------

reiteratethat                our  Planned Parenthood II                                 conclusion indicating aparental notification law                                                  



might  satisfy Alaska's                           constitutionalprivacy standard does not necessarily mean that any                                                                       



particular parental notification law                                             will   do so.               We also reiterate that today's equal                                    



protection   decision   is   based   on   the   limited   State   interests   asserted   to   justify  the  



Notification Law's discrimination against minors seeking to terminate a pregnancy, and                                                                                                    



that a similar law with different supporting justifications would require a new equal                                                                                                



protection analysis.                           



               C.             Cross-Appeal  



                              In light of our ruling, we do not need to reach the issues raised in the State's  

                                                                                                                                                                                   



and the Sponsors' cross-appeals.  

                                          



V.             CONCLUSION  



                              The Parental Notification Law violates the Alaska Constitution's equal  

                                                                                                                                                                                     



protection guarantee.  We REVERSE the superior court's decision to the extent that it  

                                                                                                                                                                      



upholds the Parental Notification  Law,  and we REMAND  for  further  proceedings,  

                                                                                                                                                                    



including entry of judgment consistent with our decision.  

                                                                                                             



               124            (...continued)  



                                                                                                                                            

Fisherman's Coop. Ass'n v. State, 628 P.2d 897, 908 (Alaska 1981))).  



                                                                                            -43-                                                                                              7114  


----------------------- Page 44-----------------------

 FABE, Chief Justice, concurring; MAASSEN, Justice, and BOLGER, Justice, joining                                                                                                        



 only in Part II of the concurrence.              



                               I   disagree   with   the   court's   analysis   and   conclusion  that   the   Parental  



Notification Law violates the guarantee of equal protection.  But because this parental   



notification scheme violates the fundamental right to privacy, I concur with the court's                                                                                                 



judgment.   A law that burdens reproductive choice "must be subjected to strict scrutiny                                                                                               



 and can only survive review if it advances a compelling state interest using the least                                                                                                       

                                                                                                      1   This law does not achieve its goals using  

restrictive means of achieving that interest."                                                                                                                                              



 the least restrictive means; on the contrary, it is one of the most restrictive parental  

                                                                                                                                                                                      



notification laws in the country. I believe that the Alaska Constitution permits a parental  

                                                                                                                                                                                     



notification law, but not one that contains provisions that are among the most restrictive  

                                                                                                                                                                                  



 of any state's notification laws.  Thus, I agree with the court that this law violates the  

                                                                                                                                                                              



 Alaska Constitution.  

                                                  



 I.	            RIGHT TO PRIVACY, RATHER THAN EQUAL PROTECTION, IS THE  

                                                                                                                                                                                             

                APPROPRIATE CONSTITUTIONAL FRAMEWORK FOR THIS LAW.  

                                                                                                                                                                                         



                               We have held "that reproductive rights are fundamental, and that they are  

                                                                                                                                                                                                  



 encompassed within the right to privacy expressed in article I, section 22 of the Alaska  

                                                                                                                                                                                         

 Constitution."2  

                                                                                                                                                                                    

                                        Since our first decision on this issue, we have most often analyzed  



                                                                                                                                                                                                  

 challenges to laws that relate to a woman's right to reproductive choice as matters of the  

                                                                      3   I continue to view the right to privacy as the appropriate  

                                                                                                                                                                               

 constitutional right to privacy. 



                1              State v. Planned Parenthood of Alaska                                                     (Planned Parenthood II                                 ), 171 P.3d     



 577, 582 (Alaska 2007).                  



                2               Valley Hosp. Ass'n v. Mat-Su Coalition For Choice, 948 P.2d 963, 969  

                                                                                                                                                                                                

 (Alaska 1997).  

                    



                3              See Planned Parenthood II, 171 P.3d at 581 n.21 ("Because we conclude  

                                                                                                                                                                                    

                                                                                                                                                                          (continued...)  



                                                                                                -44-	                                                                                        7114
  


----------------------- Page 45-----------------------

lens through which to analyze such laws, including the parental notification statute at                                                                                 



issue in this case.       



                           When fundamental rights are at issue, our right-to-privacy analysis closely                                                        



resembles our equal protection analysis.                                         Both modes of analysis require identification                   

of a compelling governmental interest, advanced by the least restrictive means.                                                                              4  They  



differ in what aspect of a law is subjected to this strict review:  its infringement of the  

                                                                                                                                                                      



fundamental  right  or  its  discriminatory  treatment  of  the  fundamental  rights  of  two  

                                                                                                                                                                   



different groups.  In my view the notification law infringes on a minor's fundamental  

                                                                                                                                 



right  to  reproductive  choice  in  a  manner  that  is  not  the  least  restrictive  means  of  

                                                                                                                                                                       



accomplishing the government's compelling interests, but it does not treat similarly  

                                                                                                                                                         



situated groups dissimilarly.  

                                



                           As we have recognized, the State has compelling interests in "protecting  

                                                                                                                                                      



minors  from  their  own  immaturity  and  aiding  parents  in  fulfilling  their  parental  

                                                                                                                                                           



             3             (...continued)  



                                                                                                                                                            

that  the  [Parental  Consent  Act]  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."); State v. Planned Parenthood of Alaska  (Planned  

                                                                                                                                                          

Parenthood I), 35 P.3d 30, 41, 45 (Alaska 2001) (holding that "[t]o justify the [Parental  

                                                                                                                                                                  

Consent Act's] restriction of a minor's right to terminate a pregnancy, . . . the state must  

                                                                                                                                                         

establish a compelling interest in restricting the minor's right to privacy" and declining  

                                                                                                                                                                

to decide the equal protection question until further evidentiary hearings were held);  

                                                                                                                                                 

 Valley Hosp., 948 P.2d at 969 (explaining that "reproductive rights are . . . encompassed  

                                                                                                                                                                

within the right to privacy expressed in . . . the Alaska Constitution").  But see State,  

                                                                                                                                                             

Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, 28 P.3d 904, 908-13  

                                                                                                                                                               

(Alaska 2001) (applying equal protection analysis in striking down a statute that denied  

                                                                                      

Medicaid funding for medically necessary abortions).  



             4             See, e.g., Planned Parenthood II, 171 P.3d at 581 (fundamental right to  

                                                                                                                                                                        

privacy); Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1278  

                                                

(Alaska 2013) (equal protection).  

                                            



                                                                                  -45-                                                                           7114
  


----------------------- Page 46-----------------------

                                        5  

responsibilities."    The court concludes that the State's interest in aiding parents in                                                                                                               



fulfilling their parental responsibilities does not require different treatment of pregnant                                                                                            



minors   seeking   to   carry   their  pregnancies   to   term and                                                                      pregnant   minors   seeking   to  



terminate their pregnancies.                                       I agree with the court's legal framework for analyzing this                                                                      



question.   But I believe that those groups are not similarly situated with regard to the                                                                                    



State's broad interest in protecting minors from their own immaturity.                                                                    



                                "In order to determine whether differently treated groups are similarly                                                                               

                                                                                                                                                                              6  The State's  

situated, we look to the                              [S]tate's reasons for treating the groups differently."                                                                               



reasons arediscernablefromthefull contextofAlaska'smedicalnotification and consent  

                                                                                                                                                                                          

laws for minors.  Under Alaska law, minors generally cannot consent to medical care.7  

                                                                                                                                                                                                              



There is, however, an exception "for diagnosis, prevention or treatment of pregnancy,  

                                                                                                                                                                           

                                                                                                                         8  This exception encourages minors  

and for diagnosis and treatment of venereal disease."                                                                                                                                       

                                                                                                     



not to delay or forgo medical assistance that they might hesitate to discuss with their  

                                                                                                                                                                                                 



parents.   The Parental Notification Law,  then, is an exception to the exception:   It  

                                                                                                                                                                                                      



requires pregnant minors seeking to terminate their pregnancies to notify their parents  

                                                             



or seek a judicial bypass before doing so.  

                                                                                           



                               Pregnant minors seeking to carry their pregnancies to term and pregnant  

                                                                                                                                                                                       



minors seeking to terminate their pregnancies do not face the same choice about whether  

                                                                                                                                                                                         



to seek medical assistance.  Although she would surely be wise to visit a doctor, the  

                                                                                                                                                                                                    



pregnant minor who seeks to carry her pregnancy to term does not necessarily need  

                                                                                                                                                                    



medical treatment to achieve her aims.  The pregnant minor who seeks to terminate her  

                                                                                                                                                                                                    



                5              Planned Parenthood II                                  , 171 P.3d at 582.              



                6  

                                                                                                                                                                             

                               Pub. Emps. Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007).  



                7  

                                                   

                               See AS 25.20.025.  



                8  

                                         

                               AS 25.20.025(a)(4).  



                                                                                                 -46-                                                                                           7114
  


----------------------- Page 47-----------------------

                                                                                                                                                                 9  

pregnancy, in contrast, cannot do so without medical treatment.                                                                                                      As the superior court                     



noted,   "once a minor                                    elects   an   imminent abortion,                                               the   core rationale underpinning               



medical emancipation no longer applies to her; she no longer requires encouragement to                                                                                                                                  



see a doctor to protect her own health or that of her fetus."                                                                                                   Instead, she                      must   seek  



medical treatment, and the risk of delay or avoidance that animates the exception to the                                                                                                                             



general   parental   consent   requirement   for   "diagnosis,   prevention   or   treatment   of  



pregnancy, and for diagnosis and treatment ofvenerealdisease"is qualitatively different.                                                                                                              



                                  The State may not discriminate between women in order to influence their                                                                                                       

                                                       10   And carrying a pregnancy to term may entail risks to a minor's  

reproductive choices.                                                                                                                                                                                  



physical and mental health that are equal to the corresponding risks from terminating a  

                                                                                                                                                                                                                         



pregnancy. But pregnant minors seeking to carry their pregnancies to term and pregnant  

                                                                                                                                                                                                      



minors seeking to terminate their pregnancies face significantly different incentives to  



delay or avoid medical assistance and significantly different risks from that delay or  

                                                                                                                                                                                                                       



avoidance.  Thus, an equal protection analysis of the Parental Notification Law should  

                                                                                                                                                                                                           



not treat these groups as similarly situated.  

                                                                                        



                                  Moreover, in Planned ParenthoodII "wedetermine[d]that theconstitution  

                                                                                                                                                                                               



permits a statutory scheme which ensures that parents are notified so that they can be  

                                                                                                                                                                                                                      

engaged in their daughters' important decisions" in matters related to pregnancy.11                                                                                                                                  By  

                                                                                                                                                                                                                    



holding up parental notification laws as a less restrictive alternative to the parental  

                                                                                                                                                                                                       



consent  law  then  at  issue,  we  indicated  that  at  least  some  such  laws  would  pass  

                                                                                                                                                                                                                



                 9                See   AS 18.16.010(a) ("An abortion may not be performed in this state                                                                                                        



unless . . . by a physician . . . in a hospital or other facility approved for the purpose.").                                                                                                  



                 10               See State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska,  

                                                                                                                                                                                                          

28 P.3d 904, 913 (Alaska 2001).  

                                                                   



                 11                171 P.3d 577, 579 (Alaska 2007).  

                                                                                                        



                                                                                                         -47-                                                                                                   7114
  


----------------------- Page 48-----------------------

                                                                             12  

 constitutional muster.                                                             But the court today calls that determination into question.                                                                                                                                                      In  



 order to give similar treatment to minors seeking to carry to term and minors seeking to                                                                                                                                                                                                                



terminate their pregnancy - and thus to survive the court's equal protection analysis -                                                                                                                                                                                                                            



 a notification statute would have to require parental notice of                                                                                                                                                  all  pregnancy-related care.                                                                     



Yet none of the notification statutes we cited as alternatives in                                                                                                                                                            Planned Parenthood II   



require such universal notice for all pregnant minors, and thus they would likely fail                                                                                                                                                                                                             

                                                                                                                                                       13        For these reasons, I respectfully disagree  

under the court's equal protection analysis.                                                                                                                                                                                                                                      



with the court's application of our equal protection doctrine here.  Instead, I believe that  

                                                                                                                                                                                                                                                                                                  



the appropriate lens through which to analyze the parental notification law at issue in this  

                                                                                                                                                                                                                                                                                                   



 case is the right to privacy, and I turn to that analysis next.  

                                                                                                                                                                                                                



                        12                     Although the parties raised the equal protection question in that case, we   



 determined that we did not need to reach it.                                                                                                            See id.                   at 581 n.21.                                But by explaining that                                             

 "the constitution permits" a parental notification law, we strongly suggested that such a                                                                                                                                                                                                                  

 law might pass constitutional muster more broadly, as long as it struck "the proper                                                                                                                                                                                                   

 constitutional    balance    between    the    State's    compelling    interests    and    a    minor's  

 fundamental right to privacy."                                                                              Id.  at 579.   



                        13                     See id. at 583 n.40; DEL. C                                                                      ODE ANN . tit. 24,  1783 (2015); F                                                                                          LA. S              TAT.  

                                                                                                                      

                                                                                 A. C           ODE  ANN .  15-11-682 (2015); 750 I                                                                                         LL. C                OMP. S                  TAT. 70/15   

  390.01114 (2015); G 

                                OWA CODE  135L.3 (2015); MD. CODE ANN ., HEALTH-GEN.  20-103 (West  

 (2015); I                                                                                                                                                                   

                                  INN. S                TAT.  144.343 (2015); N.H. R                                                                                 EV. S              TAT. A                  NN .  132:33 (2015); S.D.                                                    

2015); M 

 CODIFIED  LAWS    34-23A-7 (2015); W. V                                                                                                               A. C           ODE    16-2F-3 (2015);                                                          see also                       COLO.  

REV. S                   TAT.  12-37.5-104 (2015),                                                                           invalidated by Planned Parenthood of the Rocky                                                                                                             

Mountains Servs., Corp. v. Owens                                                                                          , 287 F.3d 910 (10th Cir. 2002) (holding the statute                                                                                                          

unconstitutional because it failed to include an exception for the health of the pregnant                                                                                                                                                                                       

minor).  



                                                                                                                                                 -48-                                                                                                                                         7114
  


----------------------- Page 49-----------------------

II.         THE LAW VIOLATES THE RIGHT TO PRIVACY.                                          



                                                                                                                               14  

                       The right to privacy, enshrined in the Alaska Constitution,                                                                 

                                                                                                                                   protects the  



                                                                                                                               15  

                                                                                                                                                 

fundamental right to reproductive choice for minors as well as adults.                                                              A law that  



                                                                                                                                                      

burdens this interest "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  



                16  

interest."            



                                                                                                                                                

                       In Planned Parenthood II we held that a parental consent law failed strict  



                                                                         

scrutiny by prohibiting a pregnant minor from terminating her pregnancy without first  



                                                                                                                                                     17  

                                                                                                                                                          

obtaining the consent of her parents, unless she had been granted a judicial bypass. 



That parental consent law was not the least restrictive means of achieving the State's  

                                                                                                                                            



interests because "[t]here exists a less burdensome and widely used means of actively  

                                                                                                                                          



                                                                                                                                                     18  

involving parents in their minor children's abortion decisions:  parental notification."                                                                  

                                                                                                                              



                                                                                                                                 

This does not mean, however, that any and all parental notification laws comport with  



                                                                                                                                                   

strict scrutiny; as we recognized, "parental notification statutes undoubtedly burden the  

                                                19    These  laws  must  still  achieve  their  aims  without  any  

                                                                                                                                                 

privacy  rights  of  minors." 



unnecessary burden on minors' privacy rights; that is, they must use the least restrictive  

                                                                                                                                       



means of achieving the State's compelling interests.  The parental notification law at  

                                                                                                                                                     



issue here does not achieve its goals using the least restrictive means:  In fact, it is one  

                                                                                                                                                  



            14         See   Alaska   Const.   art.   I,      22   ("The   right   of   the   people   to   privacy   is  



recognized  and  shall  not  be  infringed.").  



            15         See  Planned  Parenthood  II,   171  P.3d  at  581-82.  



            16         Id.  at  582.  



            17         See  id.  at  583.  



            18         Id.  at  579.  



            19         Id.  at  584.  



                                                                        -49-                                                                   7114
  


----------------------- Page 50-----------------------

 of the most restrictive laws of its type in the country.                                                                                                                                                                            The fact that other states achieve                                                                            



the same interests by significantly less restrictive means indicates that Alaska's Parental                                                                                                                                                                                                                                                      



Notification Law is not narrowly tailored.                                                                                                      



                                                          When undertaking a review of this statute as a whole, it becomes evident                                                                                                                                                                                                                  



that the law's methods are not the least restrictive means available to advance the State's                                                                                                                                                                                                                                                            



recognized compelling interests. First, the standard of proof for a court exemption from                                                                                                                                                                                                                                                                       



the notice requirement is clear and convincing evidence -the strictest standard of proof                                                                                                                                                                                                                                                                     



 in the country for any such law.                                                                                                        Although the superior court enjoined this aspect of the                                                                                                                                                                       



 statute, the State and its co-appellants appeal that ruling, which requires us to address                                                                                                                                                                                                                                                         



whether the standard of proof survives strict scrutiny. The law recognizes three grounds                                                                                                                                                                                                                                                         



 for judicial bypass:                                                                (1) sufficient maturity; (2) physical, sexual, or repeated emotional                                                                                                                                                                                

                                                                                                                                                                                                                                                                    20  is not in the minor's best  

 abuse by the parent or guardian; and (3) that parental consent                                                                                                                                                                                                                                                                                                    

 interest.21   Each of these must be proved by clear and convincing evidence.22   Only three  

                                                                                                                                                                                                                                                                                                                                                               



 other  notice  states  require  a  minor  to  prove  her  sufficient  maturity  by  clear  and  

                                                                                                                                                                                                                                                                                                                                                                 

                                                                                            23  only two require her to prove that notice would not be in her best  

 convincing evidence;                                                                                                                                                                                                                                                                                                                                              

                                                  

 interest by that standard.24                                                                                              And not one of the six states that provide for bypass on  

                                                                                                                                                                                                                                                                                                                                                                       



                             20                           This reference to parental consent appears to be an anomaly in the statute,                                                                                                                                                                                                                



 in which parental notice otherwise replaced parental consent.                                                                                                                                                                      



                             21                           AS   18.16.030(b)(4)(A)-(B).  



                             22                           AS   18.16.030(e)-(f).  



                             23                           See  FLA.  STAT.     390.01114(4)(c);  S.D.  CODIFIED  LAWS    34-23A-7;  see  



 also  COLO.  REV.  STAT.     12-37.5-107(2)(a),  invalidated  by  Planned  Parenthood  of  the  

Rocky  Mountains  Servs.,  Corp.  v.  Owens,  287  F.3d  910  (10th  Cir.  2002).  



                             24                           See   FLA.   STAT.      390.01114(4)(d);   S.D.   CODIFIED   LAWS      34-23A-7.
   



Florida   has   a   separate   abuse   ground   for   bypass   that  need  only   be   proved   by   a
  

                                                                                                                                                                                                                                                                                                                           (continued...)
  



                                                                                                                                                                                  -50-                                                                                                                                                                          7114
  


----------------------- Page 51-----------------------

grounds of abuse (rather than folding evidence of abuse into the best interest inquiry)                                                                                                                                

requires proof by clear and convincing evidence.                                                                                      25  



                                     The standard of proof can have a real, significant impact on these cases:  

                                                                                                                                                                                                                                                



As observed in the child custody context, "in close cases, a higher standard of proof will  

                                                                                                                                                                                                                                   

place the risk of erroneous factfinding on the child."26                                                                                                    Here, that risk is acute.   The  

                                                                                                                                                                                                                                 



"clear and convincing" requirement in the Parental Notification Law would require that  

                                                                                                                                                                                                                                   



a trial court deny a judicial bypass to some minors even if it finds that they are likely  

                                                                                                                                                                                                                              



(though not clearly and convincingly) sufficiently mature, or victims of abuse, or best  

                                                                                                                                                                                                                                  



 served by a bypass. The high standard of proof yields a particularly stark outcome in the  

                                                                                                                                                                                                                                     



case of a minor who has been abused by a parent or guardian, where a trial judge would  

                                                                                                                                                                                                                            



be required to deny judicial bypass for a pregnant minor who was likely abused by her  

                                                                                                                                                                                                                                    



own parent but cannot provide sufficient evidence to satisfy the clear and convincing  

                                                                                                                                                                                                              



                  24                 (...continued)  



                                                                                                                                                                                                                                  

preponderance of the evidence, limiting the severity of this standard of proof for the best  

                                                                LA. S         TAT.  390.01114(4)(d).     

interest analysis.  See F 



                  25                 See FLA. S                   TAT.  390.01114(4)(d) (no notice required if court finds abuse                                                                                             

                                                

by preponderance of the evidence); 750 I                                                                       LL. C           OMP. S            TAT. 70/20(4) (no notice required                                    

if        minor                 declares                    abuse                or          neglect                  to         physician                      in         writing);                     IOWA                CODE  

  135L.3(3)(m)(4)-(5) (no notice required if minor declares abuse to physician and it has                                                                                                                                        

                                                                                                                                             D.           CODE                 ANN .,                 HEALTH-GEN.  

been                previously                         reported                     to          authorities);                          M 

  20-103(c)(1)(i) (no notice required if physician judges that notice may lead to abuse);                                                                                                                               

MINN. S                TAT.  144.343(4)(c) (no notice required if minor declares abuse or neglect to                                                                                                                                  

physician, who must then report abuse);                                                                      see also              COLO. R                 EV. S        TAT.  12-37.5-105(1)(b)      

(no notice required if minor declares abuse or neglect to physician),                                                                                                                               invalidated by   

Planned Parenthood of the Rocky Mountains Servs.                                                                                               , 287 F.3d 910.              



                  26                Evans  v.  McTaggart,  88  P.3d  1078,  1095  (Alaska  2004)  (Fabe,  C.J.,  

                                                                                                                                                                                                                               

dissenting).  

                                  



                                                                                                                 -51-                                                                                                          7114
  


----------------------- Page 52-----------------------

                 27  

standard.             It may be especially hard for a minor to meet this standard of proof in such                                                        



familial abuse cases, where "a child's report of a parent's [abusive] conduct is often the                                                                   

                                                        28    As in the child custody context where this issue has  

primary source of evidence."                                                                                                                                



previously been discussed, "[e]ven if it is not debatable that the parent's actions are  

                                                                                                                                                             



[abusive], the lack of corroboration - particularly in light of a parent's denial - may  

                                                                                                                                                           



mean that the child's report, although providing a preponderance of the evidence, will  

fail to satisfy the clear and convincing standard."29                                           In such a case, the trial court would  

                                                                                                                                                       



be required to deny judicial bypass.  Given the balance of rights and interests involved,  

                                                                                                                                                 



this  outcome  can  hardly  be  viewed  as  the  least  restrictive  means  of  achieving  a  

                                                                                                                                                                



compelling state interest. Thus the burden of proof for the judicial bypass procedure fails  

                                                                                                                                                           



strict scrutiny.  

                             



                         Second, the only other way for an abused minor to avoid the parental  

                                                                                                                                                   



notification requirement is for the abuse to be documented in a notarized statement  

                                                                                                                                                



signed by a witness who has "personal knowledge of the abuse" and who is a law  

                                                                                                                                                           



enforcement  officer,  a  Health  and  Social  Services  investigator,  or  a  grandparent,  

                                                                                                                                          

stepparent, or sibling over the age of 21.30   Here again, the requirements of the law clash  

                                                                                                                                                         



with the realities of a pregnant minor who has been abused by a parent yet must seek  

                                                                                                                                                          



corroborating evidence from her own family or from a government official to prove it.  

                                                                                                                                                                    



Because much familial abuse is not susceptible to outside witness, or may only be  

                                                                                                                                                              



witnessed by another family member who is not willing to testify, in practice this option  

                                                                                                                                                       



             27          AS 18.16.030(b)(4)(B), (f).                    



             28  

                                                                                                                    

                         Evans, 88 P.3d at 1097 (Fabe, C.J., dissenting).  



             29          Id.  



             30  

                                 

                         AS 18.16.020(a)(4).  



                                                                             -52-                                                                        7114
  


----------------------- Page 53-----------------------

                                                                                                                                                                                                           31  

will   likely  be   foreclosed   to   many   of   the   young   women   it   is   designed   to   protect.                                                                                                       



                                                                                                                                                                                            

Requiring a signed and notarized declaration from a witness, therefore, unduly restricts  



                                                                                                                                                                                       

these minors' rights. Nor does the judicial bypass -even if it were not overly restrictive  



                                                                                                                                                                                            

itself - cure the unreasonably  restrictive nature of this provision.                                                                                                      As we held  in  



                                                                                                                                                                                               

Planned Parenthood II, "the inclusion of [a] judicial bypass procedure does not reduce  

                                                                                                                 32    So for a daughter who was abused by  

                                                                                                                                                                                                         

the restrictiveness" of the provision in question. 



a parent or guardian - perhaps the very person she is required to notify under this  

                                                                                                                                                                                                      



law   -  neither   the   judicial   bypass   nor   the   witnessed   declaration   provides   a  

                                                                                                                                                                                                          



constitutionally adequate alternative to the law's parental notification requirement.  

                                                                                                                                                                        



                                Third, the Parental Notification Law burdens physicians and all involved  

                                                                                                                                                                                          



families by imposing verification requirements that have no analogue in the notification  

                                                                                                                                                                                    



laws of other states.  Most of the 11 states other than Alaska that have notification laws  

                                                                                                                                                                                                    



do not specify how the identity of a notice recipient is to be established, and those that  

                                                                                                                                                                                                      

do simply require that the recipient produce government-issued identification33 or that  

                                                                

                                                                                                                                                                                                  34     In  

the physician record the number dialed and the date and time of the phone call.                                                                                                                          

                                                                                                                                                                                        



                31              As   the   superior   court   explained,  witnesses   at   trial   testified   that   the  



opportunity for exemption by means                                                    ofawitnessed affidavit is "largelyillusory"because                                                    

it requires the minor to disclose her pregnancy to a family member who witnessed the                                                                                                                    

abuse   but   "who   has   to   that   moment   remained   silent."     And   as   the   superior  court  

recognized, "[i]t is unlikely that an adolescent would recall the name of an OCS worker                                                                                                       

or a police officer who was involved with the family at a prior time, or will desire to                                                                                                                   

reveal her pregnancy to such a stranger." Therefore, the superior court concluded, "only                                                                                                          

a small percentage of abuse victims will avail themselves of the [law's] affidavit-of-                                                                                           

abuse exception to notice."                                        



                32               171 P.3d 577, 584 (Alaska 2007).  

                                                                                                  



                33              See GA.  CODE  ANN .      15-11-681(2);   15-11-682(a)(1)(A).  

                                          



                34              See  FLA.  STAT.     390.01114(3)(a).  



                                                                                                   -53-                                                                                            7114
  


----------------------- Page 54-----------------------

contrast, Alaska's Parental Notification Law imposes a burden that is not found in any                                                                                         



other    state's    statute    by    requiring    that    any    in-person    notice    recipient    "show  



government-issued identification along with additional documentation of the person's                                                                                 

                                                       35  and that the physician delivering notice by phone "attempt[]  

relationship to the minor,"                                                                                                                                       



to verify through a review of published telephone directories that the number to be dialed  

                                                                                                                                                                           



is that of the minor's parent, legal guardian, or custodian, and ask[] questions of the  

                                                                                                                                                                                



person  to  verify  that  the  person's  relationship  to  the  minor  is  that  of parent,  legal  

                                                                                                                                                                            

guardian,   or   custodian."36                                     As   the   superior   court   recognized,   the   additional  

                                                                                                                                                                



documentation  requirement  for  in-person  notice  "clashes  with  the  realities  of  rural  

                                                                                                                                                                            



Alaska." These documentation requirements also mean that a doctor has not fulfilled the  

                                                                                                                                                                                 



statute's notice requirement even after giving in-person notice to a parent who is fully  

                                                                                                                                                              



aware of a daughter's decision to terminate her pregnancy but has misplaced her birth  

               



certificate.   Furthermore, the law requires the physician to deliver notice himself or  

                                                                                                                                                                                  



                                                                                                                                                                                   37  

herself rather than permitting delegation of this responsibility to medical office staff.                                                                                                



This is a far more burdensome approach than that selected by other states, the vast  

                                                                                                                                                                              

majority of which statutorily allow someone other than the physician to deliver notice.38  

                                                                                                                                                                                         



              35            AS 18.16.020(b)(1).   



              36  

                                                                         

                            AS 18.16.020(b)(2).  



              37            AS 18.16.020(b). TheStateand                                       its co-appellants do not appeal the superior  



court's injunction against the law's requirement that the physician personally deliver                                                                                  

notice  in  all  cases,  but  we  nonetheless  review  this  provision  in  reviewing  the  

                                                                                                                                                                               

constitutionality of the statute as a whole.  

                                                                                          



              38            See DEL. C             ODE  ANN . tit. 24,  1783(1) (notice may be provided by, among                                                       

                                     

others, an agent of the physician); G                                      A. C     ODE  ANN .  15-11-682(a)(1)(B) (notice may be                                                 

provided by the physician's qualified agent); 750 I                                                         LL. C      OMP. S        TAT. 70/15 (notice may   

                                                                                      INN. S       TAT.  144.343(2)(a) (same); N.H. R                                          EV.  

be provided by the physician's agent); M 

                                                                                                                                                           (continued...)  



                                                                                       -54-                                                                                 7114
  


----------------------- Page 55-----------------------

Thus, this parental notification scheme is not the least restrictive means of advancing the                                                                                                                                                                               



 State's compelling interests.                                



                                           Fourth, the statute's imposition of civil liability for all violations of the                                                                                                                                                 



Parental Notification Law is more punitive and chilling than penalties in equivalent                                                                                                                                                             



notification   laws   in   other   states.     Again,   although   the   superior   court   enjoined   the  



operation of this portion of the statute, the State and its co-appellants argue that the                                                                                                                                                                                



injunction against it should be lifted. Of the five states that make physicians civilly liable                                                                                                                                                                    

                                                                                                                                                                                                                                                           39   Only  

 for failure to provide notice, two require that the physician's failure be "willful."                                                                                                                                                                             



one of the remaining three discusses punitive damages, and then only to clarify that the  

                                                                                                                                                                                                                                                                         

 statute does not specifically prohibit such damages.40                                                                                                                            In contrast, Alaska's Parental  

                                                                                                                                                                                                                                                        



Notification Lawexplicitly allows punitivedamagesagainstphysicianswithoutrequiring  

                                                                                                                                                                                                                                                       

                                                                                    41       This is yet another way in which this statute is an outlier,  

any finding of willfulness.                                                                                                                                                                            

                                                



at odds with our constitution's express recognition of the fundamental right to privacy  

                                                                                                                                                                                                                                                           



and its requirement that any burden on that right must be the least restrictive means of  



achieving a compelling government interest.  

                                                                                                                    



                     38                    (...continued)  



 STAT. A                  NN .  132:33(II) (same); S.D.C                                                                   ODIFIED  LAWS   34-23A-7 (same); W. V                                                                                       A. C         ODE  

  16-2F-3(a) (requirement met if "physician has given [notice] or caused [notice] to be                                                                                                                                                                                   

given"); see also                                       COLO. R                      EV. S            TAT.  12-37.5-104(1)(a) (notice may be provided by,                                                                                                               

among others, any person older than 18 who is not related to the minor),                                                                                                                                                             invalidated by   

Planned Parenthood of the Rocky Mountains Servs., Corp. v. Owens                                                                                                                                                     , 287 F.3d 910 (10th                          

Cir. 2002).                          



                     39                    See S.D. C                        ODIFIED  LAWS  34-23A-22;  see also COLO. R                                                                                                        EV. S            TAT.  12- 



                                                                                                                                                                                                                                                                      

 37.5-106(1), invalidated by Planned Parenthood of the Rocky Mountains Servs., 287  

                 

F.3d 910.  



                     40                    See DEL. C                         ODE  ANN . tit. 24,  1789B;                                                          see also                   MINN. S                    TAT.  144.343(5)                                           

                                                        

 (establishing civil liability but not damages); N.H. R                                                                                                                EV. S           TAT. A                NN .  132:35 (same).                      



                     41                    See AS 18.16.010(e).  

                                                                    



                                                                                                                                   -55-                                                                                                                            7114
  


----------------------- Page 56-----------------------

                            Fifth, I cannot conclude that the specter of a felony conviction and five                                                                



                                                                                                                                                                               42  

years imprisonment for any person who knowingly violates the notice requirement                                                                                                    is  



                                                                                                                                                                             

narrowly tailored to advance a compelling state interest.  Four notification states have  

                                                                                                                   43    Another six make violation a  

                                                                                                                         

                                                                    

no criminal penalty attached to their notification laws. 

misdemeanor.44                       Only one makes it a felony, and even there a violation of the notice  

                                                                                                                                                                          

requirement is the lowest class of felony, with a maximum of two years imprisonment.45  

                                                                                                                                                                                         



The Parental Notification Law's criminal penalty is by far the most severe of any state,  

                                                                                                                                                                             



demonstrating that it is not the least restrictive means of enforcing a notification law.  

                                                                                                                                                                                         



And although the Parental Notification Law fails the least-restrictive-means analysis  

                                                                                                                                                                      



even without reference to its criminal penalties, these penalties are a further indication  

                                                                                                                                                                  



that the law's provisions are not narrowly tailored.  

                                                                                          



                            Furthermore, the law as originally adopted contained still more elements  

                                                                                                                                                                     



that  fail  the  least-restrictive-means  test.                                            For  example,  the  law  as  enacted  allowed  

                                                                                                                                                                      



constructive notice to be mailed only after 24 hours of failed attempts at telephonic  

                                                                                                                                                                 



                                                                                                                                                                                    46  

notice, and it applied even when medical conditions rendered fetal death inevitable.                                                                                                     

                                                                                                                                                              



              42            See  AS 18.16.010(c).   



              43  

                                      

                            See FLA. S              TAT.  390.01114; 750 I                             LL. C        OMP. S        TAT. 70/40 (no criminal           

penalty for physicians, misdemeanor for unauthorized signing of waiver of notice); M                                                                                              D.  

    ODE ANN ., H              EALTH-GEN.  20-103 (no criminal penalty for physicians);                                                                 see also          COLO.  

C             

REV. S        TAT.  12-37.5-106,                        invalidated by Planned Parenthood of the Rocky Mountains                                                

Servs., 287 F.3d 910.                          



              44            See DEL. C              ODE  ANN . tit. 24,  1789; GA. C                                   ODE  ANN .  15-11-688; I                            OWA  



CODE   135L.3(3)(n); M                               INN. S        TAT.  144.343(5); N.H. R                                 EV. S       TAT. A         NN .  132:35;     

              

           A. C     ODE    16-2F-8.                  

W. V 



              45            See  S.D.  CODIFIED  LAWS    22-17-5,  22-6-1.   



              46            See  AS  18.16.020(c).   Although  the  superior  court  construed  the  statute  to  



                                                                                                                                                           (continued...)  



                                                                                       -56-                                                                                  7114
  


----------------------- Page 57-----------------------

These aspects of the law further demonstrate that the statutory scheme as designed was                                                                                                            



one of the most restrictive and burdensome in the country.                                                                                 



                               And not only does this law achieve its aims by overly restrictive methods,                                                                             



it also adopts an overly expansive scope by sweeping in minors whose maturity in                                                                                                                      



reproductive choices the legislature has formerly recognized.                                                                                    The parental consent act                           

                                                                                                                                                                                         47   Both  

we considered in                        Planned Parenthood II                                  applied only to minors 16 and younger.                                                           



the court and the dissent in that case noted that this represented "a serious effort to  

                                                                                                                                                                                                      

narrowly tailor the scope of the [Parental Consent Act]"48  by excluding "the population  

                                                                                                                                                                                  



of teenage girls most likely competent, by virtue of maturity and experience, to make the  

                                                                                                                                                                                                    

decision regarding abortion without adult assistance."49   The notification law at issue in  

                                                                                                                                                                                                       



this appeal does not demonstrate a serious effort at narrow tailoring. Indeed, while a 17- 

                                                                                                                                                                                                  



year-old  living  independently  from  her  parents  may  make  her  own,  uninfluenced  

                                                                                                                                                                           

decisions about all other medical questions,50 the Parental Notification Law would not  



                                                                                                                                                                             51  a decision  

allow her the same independence with regard to her reproductive choice,                                                                                                               

                                                                                                                                                             



                46             (...continued)  



avoid  these  two  particular  problems,  their  inclusion  in  the  original  statutory  text  provides  

yet   another   indication   that   the   law   as   enacted   did  not  use   the   least  restrictive   means  

available.  



                47             See Planned Parenthood II, 171 P.3d 577, 583 (Alaska 2007).  

                                                                                                                                                                   



                48             Id.  



                49             Id. at 587 (Carpeneti, J., dissenting).  

                                                                                          



                50             See AS 25.20.025(a)(1) ("[A] minor who is living apart from the minor's  

                                                                                                                                                                                         

parents  or  legal  guardian  and  who  is  managing  the  minor's  own  financial  affairs,  

                                                                                                                                                                                          

regardless of the source or extent of income, may give consent for medical and dental  

                                                                                                                                                                                             

services.").  



                51             AS  18.16.010(a)(3) (parental  notification  law  applies  to  all  "pregnant,  

                                                                                                                                                                                 

                                                                                                                                                                           (continued...)  



                                                                                                 -57-                                                                                          7114
  


----------------------- Page 58-----------------------

 protected by her fundamental right to privacy.                                                                                       The fact that the law reaches the minors                                                       



 least likely to need protection from their own immaturity again indicates that its scope                                                                                               



 is not narrowly tailored.                                              Although this list of the ways that the law's methods infringe                                                                                            



 on a minor's constitutional right to privacy is not meant to be exhaustive, it is more than                                                                                                                                                



 adequate to establish that the Parental Notification Law cannot stand.                                                                                                                                  



 III.               THE UNCONSTITUTIONAL PROVISIONS ARE NOT SEVERABLE.                                                                                                                              



                                       The law's provisions that violate the right to privacy affect virtually every                                                                                                                     



 aspect of the notification process.                                                              From the notification mechanism, to the law's scope,                                                                                 



 to its civil and criminal penalties, to the judicial bypass procedure, and even to the                                                                                                                                                        



 provision excusing notice in the case of an abused minor, these constitutionally intrusive                                                                                                                                     



 provisions reach the point where "their invalidation so undermines the structure of the                                                                                                                                                        

                                                                                                                             52   Our severability doctrine rests on the test  

 Act as a whole that the entire Act must fall."                                                                                                                                                                                                



 set out in Lynden Transport, which "asks (1) whether 'legal effect can be given' to the  

                                                                                                                                                                                                                                                



 severed statute and (2) if 'the legislature intended the provision to stand' in the event  

                                                                                                                                                                                                                                         

 other provisions were struck down."53  

                                                                                                                                                                                                                                                

                                                                                                               We later explained that "Lynden Transport is the  



 test for severability of enacted measures, whatever their source" - including for laws  

                                                                                                                                                                                              54       I believe that the  

                                                                                                                                                                                                                                                

 adopted by a ballot measure, like the Parental Notification Law. 



 remaining, constitutionally valid portions of the Parental Notification Law would not  

                                                                                                                                                                                                                                               



 satisfy this test.  

                                               



                    51                 (...continued)  



                                                                                                                                                                                                                     

 unmarried, unemancipated wom[e]n under 18 years ofage"); AS09.55.590 (establishing  

                                                                                                                        

judicial process by which a minor can be emancipated).  



                    52                 State v. Alaska Civil Liberties Union, 978 P.2d 597, 633 (Alaska 1999).  

                                                                                                                                                                                                                                   



                    53                Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 209 (Alaska  

                                                                                                                                                                                                                                   

 2007) (quoting Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975)).  

                                                                                                                                                                                                                   



                    54                 Id. at 209-10.  

                                                        



                                                                                                                       -58-                                                                                                                7114
  


----------------------- Page 59-----------------------

                          The "legislative intent" prong of our                                        severability   test incorporates the                        



widely  accepted   principle   that   "the   touchstone   for   any   decision   about   remedy   is  



legislative intent, for a court cannot 'use its remedial powers to circumvent the intent of                                                                           

                                   55    In assessing legislative intent, our recent cases have considered  

the legislature.' "                                                                                                                                 



whether the act in question contained a severability clause, reading such a clause as the  

                                                                                                                                                                    



primary "indicat[ion] that the legislature intended the remainder of the Act to stand if  

                                                                                                                                                                       

part of it were invalidated."56                             In both Alaskans for a Common Language v. Kritz  and  

                                                                                                                                                                  



State v. Alaska Civil Liberties Union, the presence of a severability clause was central  

                                                                                                     



to our conclusion that the remaining portions of the acts could stand alone after severing  

                                                                                                                                                         



the constitutionally invalid portions. Other state high courts and the U.S. Supreme Court  

                                                                                                                                                               



have taken  a similar  approach to  severability  clauses,  generally  removing  only  the  

                                                                                                                                                                   



challenged portions if a severability clause exists but striking  the entire law in the  

                                                                                                                                                                   

absence of such a clause.57  

                                                      



             55           Ayotte v. Planned Parenthood of N. New England                                                        , 546 U.S. 320, 330               



(2006) (quoting                 Califano v. Westcott                   , 443 U.S. 76, 94 (1979)) (Powell, J., concurring in                                           

part and dissenting in part).               



             56           Alaskans for a Common Language , 170 P.3d at 209 (quoting Alaska Civil  

                                                                                                                                                                

Liberties Union, 978 P.2d at 633).  

                                                          



             57           E.g., Ayotte , 546 U.S. at 331 (allowing certain portions of the challenged  

                                                                                                                                                    

law to stand in part because "the Act contains a severability clause"); Ruiz v. Hull, 957  

                                                                                                                                                                  

P.2d  984,  1002  (Ariz.  1998)  ("[W]e  decline  to  sever  the  invalid  portions  of  the  

                                                                                                                                                                   

Amendment . . . because [it] does not contain a severability clause and . . . because the  

                                                                                                                                                                    

record is devoid of evidence that the voters would have enacted such a rewritten and  

                                                                                                                                                                  

essentially meaningless amendment."); Dallman v. Ritter, 225 P.3d 610, 638 (Colo.  

                                                                                                                                                             

2010) (holding that, when assessing "the autonomy of the portions remaining" and "the  

                                                                                                                                                                  

intent oftheenacting legislativebody,"thecourt "must takeinto account any severability  

                                                                                                                                                   

clause, which demonstrates the lawmaking body's intent that the law remain largely in  

                                                                                                                                                                      

force despite particular, limited infirmities").  

                                                                                          



                                                                                 -59-                                                                          7114
  


----------------------- Page 60-----------------------

                      The Parental Notification Law did not contain a severability clause.  The       



omission   of   a   severability   clause   is   particularly   illuminating   here,   given   that   the  

                                                                                                                  58  that the enacted  

initiative's sponsors had reason to know, based on this law's history,                                                              



law might face a challenge on constitutional grounds. I do not suggest that a severability  

                                                                                                                             



clause is dispositive:  Indeed, the presence  of a severability clause does not necessarily  

                                                                                                                              



mean that a statute's constitutionally invalid provisions are severable fromthe remainder  

                                                                                                                                

of the statutory scheme.59                  But here the absence of a severability clause weighs in favor  

                                                                                                                                        



of finding that the invalid portions of the law are not severable and thus that the entire  

                                                                                                          



act must fall.  

                         



                      Moreover, we have held that a law will fail the legislative intent prong if  

                                                                                                      



the remainder of the law is not "independent and complete in itself" so that we may  

                                                                                                                                         



presume the remaining, valid portions were intended to stand on their own in the event  

                                                                                                                                       

that the other portions were struck down.60  Here, the constitutional infirmities described  

                                                                                                                                 



above are pervasive - they touch nearly every aspect of the Parental Notification Law.  

                                                                                                                                                  



If the portions of the law that violate the right to privacy were removed, it would mean  

                                                                                                                                       



eliminating key elements of the notification requirement, the civil and criminal penalties  

                                                                                                                                  



for  its  violation,  the  judicial  bypass  procedure,  and  the  alternative  provision  for  

                                                                                                                                           



documented abuse of the pregnant minor.  The law cannot be considered "independent  

                                                                                                                          



           58         Planned          Parenthood    II,              171      P.3d       577      (Alaska          2007);    Planned  



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



           59         See, e.g., Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 139 (9th Cir.  

                                                                                                                                          

 1980), aff'd, 454 U.S. 1022 (1981) (holding that the entire statute must fall despite the  

                                                                                                                                           

inclusion of a severability clause).  

                                                           



           60         Alaskans for a Common Language, 170 P.3d at 212 (quoting Sonneman v.  

                                                                                                                                              

Hickel, 836 P.2d 936, 941 (Alaska 1992)).  

                                                           



                                                                     -60-                                                              7114
  


----------------------- Page 61-----------------------

                                                    61  

and complete in itself"                                 in the absence of all these provisions.                                                  Thus, under our prior                   



case law, we cannot presume the remaining portions were intended to stand on their own.                                                                                                               



The law therefore fails the legislative intent prong of the                                                                      Lynden  test.   



                              Next, although the failure of one                                       Lynden  prong is sufficientto concludethat                                            



the invalid portions cannot be severed, in this case the statute likely fails the "legal                                                                                              



effect" prong of the test as well.                                       Specifically, I have serious doubt that "legal effect can                                                          

                      62  to this law once critical aspects of virtually all the core provisions are found  

be given"                                                                                                                                                                              



unconstitutional.  As other courts engaging in similar severability analyses have noted,  

                                                                                                                                                                                      



the challenged portions of a statute may "represent a vital part of the statutory scheme,"  

                                                                                                                                                                               



such that altering or removing them"would create a programquite different fromthe one  

                                                                                                                                                                                            

the  people  actually  adopted."63                                                The  Ninth  Circuit,  for  instance,  has  held  that  

                                                                                                                                                                                          



constitutionally flawed provisions of a law cannot be severed when doing so "would  

                                                                                                                                                                                   

essentially eviscerate the statute."64  

                                                                                   



                              The Supreme Court of Colorado undertook a similar analysis in a recent  

                                                                                                                                                                                     



case challenging an amendment to the state constitution, which limited certain types of  

                                                                                                                                                                                               

political campaign contributions, and which had been passed by voter initiative.65   After  

                                                                                                                                                                                        



striking the invalid provisions, the court explained, the entire law must fall "if what  

                                                                                                                                                                                         



remains is so incomplete or riddled with omissions that it cannot be salvaged as a  

                                                                                                                                                                                                 



               61             Id.  



               62             Lynden  Transp.,  Inc.  v.  State,  532  P.2d  700,  713  (Alaska   1975).  



               63             Spokane   Arcades,   Inc.,   631   F.2d   at   139   (internal   alterations   omitted)  



(quoting  Sloan  v.  Lemon,  413  U.S.  825,  834  (1973)).  



               64             Id.  



               65             Dallman  v.  Ritter,  225  P.3d  610,  616-17,  638-40  (Colo.  2010).   



                                                                                             -61-                                                                                        7114
  


----------------------- Page 62-----------------------

                                                          66  

meaningful legislativeenactment."                             Emphasizing that acourt"cannotrewriteor reshape                         



                                                                                67  

a law in order to maintain its constitutionality,"                                                                                       

                                                                                    the court ultimately explained that it  



                                                                                                                                              

was required to "strike the entire law" because "its purpose [was] so eviscerated by  



                                                                                                                                        68  

                                                                                                                             

necessary nullifications that the original law cannot stand in any working order." 



                       Similarly,  the  pervasive  constitutional  infirmities  affect  every  core  

                                                                                                                                          



provision of the Parental Notification Law.  The unconstitutional provisions described  

                                                                                                                                  



above include elements of the procedure that a doctor must follow under the notification  

                                                                                                                               



requirement, the age cutoff for the requirement, the civil and criminal penalties for  

                                                                                                                                             



violating it, the burden of proof for the judicial bypass - which applies to all three  

                                                                                                                                          



potential bypass options - and the requirements for the alternative process that an  

                                                                                                                                              



abused minor may use. In short, the constitutional infirmities touch all four pillars of the  

                                                                                                                                             



                                                                                                                                               69  

statutory framework under the "notice or consent" provision at issue in this case.                                                                  

                                                                                                                                       



Without these pillars, the law cannot stand.  

                                                                           



                       I  therefore  believe  that  the  constitutionally  impermissible  provisions  

                                                                                                                                



"represent a vital part of the statutory scheme" and that severing them "would essentially  

                                                                                                                                 

eviscerate the statute."70                 Attempting to patch together a constitutional statute from the  

                                                                                                                                             



remaining portions of the law would effectively be an exercise in rewriting the law. Our  

                                                                                                                                            



           66         Id.   at   639   (alterations   omitted)   (quoting   City   of   Lakewood   v.   Colfax  



Unlimited  Ass'n ,  634  P.2d  52,  69  (Colo.   1981)).  



           67         Id.  (citing  Ayotte  v.  Planned  Parenthood  of  N.  New  England,  546  U.S.  320,  



329  (2006)).  



           68         Id. (citing City of Lakewood, 634 P.2d at 70).  

                                                                                             



           69         AS  18.16.020(a)(1)-(4).  

                              



           70         See Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 139 (9th Cir. 1980),  

                                                                                                                                       

aff'd, 454 U.S.  1022 (1981).  

                                     



                                                                     -62-                                                                7114
  


----------------------- Page 63-----------------------

                      71                                                                                                           72  

own   cases,               as   well   as   similar   approaches   used   by   other   courts,                                          caution   against  



wholesale revision of statutory language in this manner.                                                     Nor can we simply modify the                        

                                                                                                                      73 becausewemust refrain  

constitutionally problematicprovisions asthedissentsuggests,                                                                                               



from this "quintessentially legislative work" of "rewriting [the] law to conform it to  

                                                                                                                                                                   

constitutional  requirements."74                                 Thus,  at  the  point  where  we  would  be  essentially  

                                                                                                                                                  



rewriting every major provision of a statute, the entire statute instead must be struck  

                                                                                                                                                           



down.  Here, where the unconstitutional portions of the law affect every element of the  

                                                                                                                                                                 



statutory scheme, the law reaches the point where it is so riddled with constitutional  

                                                                                                                                            



holes that it cannot be salvaged.  

                                            



                          Accordingly, becausetheParentalNotification Lawfails both prongs ofthe  

                                                                                                                                                                  



Lynden test, I would conclude that the constitutionally invalid portions of the law are not  

                                                                                                                                                                 



severable from the remaining provisions, and thus the entire law must fall.  I therefore  

                                                                                                                                                     



would  hold  that  the  Parental  Notification  Law  impermissibly  violates  a  minor's  

                                                                                                                                                       



fundamental right to privacy because it does not advance the compelling state interest by  

                                                                                                                                                                  



             71           See, e.g.       ,  State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v.                                                         



Alyeska Pipeline Serv. Co.                           , 262 P.3d 593, 598 (Alaska 2011) (declining to alter the                                                   

meaning of a statute even when it was likely misdrafted).                               



             72           Ayotte , 546 U.S. at 329-30 (noting that, when deciding whether to sever a  

                                                                                                                                                                     

portion of a statute, courts should refrain from rewriting the law in question); Ruiz v.  

                                                                                                                                                                   

Hull, 957 P.2d 984, 1002 (Ariz. 1998) (declining to perform "judicial surgery" because  

                                                                                                                                                        

it would leave a "rewritten and essentially meaningless [law]"); Dallman, 225 P.3d at  

                                                                                                                                                                   

638  ("[W]e  cannot  rewrite  or  actively  reshape  a  law  in  order  to  maintain  its  

                                                                                                                                                                 

constitutionality." (citing Ayotte , 546 U.S. at 330)).  

                                                                                        



             73           Dissent at 90.  

                                               



             74           Ayotte , 546 U.S. at 329 (quoting  Virginia v. Am. Booksellers Ass'n, 484  

                                                                                                                                                               

U.S. 383, 397 (1988)).  

                             



                                                                               -63-                                                                          7114
  


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the least restrictive means, and I concur with the court's judgment that the law must be                                                                                                                                                                                                                                                                                                                                                                                                            



 struck down as violating the Alaska Constitution.                                                                                                                                                                



                                                                                                                                                                                                                                                                 -64-                                                                                                                                                                                                               7114
  


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STOWERS, Justice, dissenting.        



                       I dissent from today's opinion because it unjustifiably departs from our                                              

                                                                                                              1 misapplies our equal  

earlier approval of parental notification in                          Planned Parenthood II                  ,                             



protection case law by comparing two groups that are not similarly situated, and fails to  

                                                                                                                                                



consider how other states have handled similar questions related to parental notification  

                                                                                                                                



laws.  I also disagree with the concurring opinion that the Parental Notification Law  

                                                                                                                                            



violates the Alaska Constitution's Privacy Clause.  But, for argument's sake, even if it  

                                                                                        



does,  I  believe  that  any  privacy  concerns  could  be  resolved  by  severing  certain  

                                                                                                                                       



provisions of the Parental Notification Law.  

                                                                   



                       Moreover  the  majority  and  concurrence  ignore  in  practical  effect  the  

                                                                                                                                             



interests and rights of the State and parents in taking steps to assist a minor who is  

                                                                                                                                                



seeking an abortion in receiving information and counseling concerning all aspects of  

                                                                                                                                                



that decision.  The United States Supreme Court has clearly explained that the State has  

                                                                                                                                              



a legitimate right to enact laws designed to encourage a woman contemplating abortion  

                                                                                                                                     



to  be  informed  regarding  the effects  that  abortion  may  have  on  her  and  regarding  

                                                                                                                                   



alternatives to abortion. In Planned Parenthood v. Casey, Justice Sandra Day O'Connor  

                                                                                                                                                     



wrote for the Court and stated:  

                                          



                       [I]t must be remembered that Roe v. Wade speaks with clarity  

                                                                                                                  

                       in  establishing  not  only  the woman's liberty  but also  the  

                                                                                                                       

                       State's "important and legitimate interest in potential life."  

                                                                                                                              

                       That portion of the decision in Roe has been given too little  

                                                                                           

                       acknowledgment  and  implementation  by  the  Court  in  its  

                                                                                                                        

                       subsequent cases.  Those cases decided that any regulation  

                                                                                                    

                       touching  upon  the  abortion  decision  must  survive  strict  

                                                                                                                   

                       scrutiny, to be sustained only if drawn in narrow terms to  

                                                                                                                         

                       further  a  compelling  state  interest.                         Not  all  of  the  cases  

                                                                                                                   



           1  

                                                                                                                                         

                       State  v.  Planned  Parenthood  of  Alaska,  171  P.3d  577  (Alaska  2007)  

                                       

(Planned Parenthood II).  



                                                                      -65-                                                                     7114  


----------------------- Page 66-----------------------

                                        decided under that formulation can be reconciled with the                                                                                                                  

                                        holding in                      Roe  itself that the State has legitimate interests in                                                                                         

                                        the health of the woman and in protecting the potential life                                                                                                               

                                        within her.   

                                                             . . . .  



                                                             Though the woman has a right to choose to terminate                                                                                 

                                        or continue her pregnancy before viability, it does not at all   

                                         follow that the State is prohibited from taking steps to ensure                                                                                                  

                                        that   this   choice   is   thoughtful   and   informed.     Even   in   the  

                                         earliest stages of pregnancy, the State may enact rules and                                                                                                              

                                        regulations designed to encourage her to know that there are                                                                                                                

                                        philosophic and social arguments of great weight that can be                                                                                                                  

                                        brought to bear in favor of continuing the pregnancy to full                                                                                                       

                                        term and that there are procedures and institutions to allow                                                                                                        

                                         adoption of unwanted children as well as a certain degree of                                                                                                                  

                                         state   assistance   if   the   mother   chooses  to  raise   the   child  

                                        herself.[2]  



                                        In the case before us, the Alaska Legislature enacted a law after Alaska  

                                                                                                                                                                                                                                                

citizens passed the Parental Notification Act initiative3 requiring that parents be notified  

                                                                                                                                                                                                                                               

                                                                                                                                      



if their minor daughter is seeking an abortion, with exceptions discussed below.  One  

                                                                                                                                                                                                                                                        



obvious purpose of this law is to provide the minor's parents the opportunity to discuss  

                                                                                                                                                                                                                                                



with their daughter the potential effects of and alternatives to abortion.  This is beyond  

                                                                                                                                                                                                                                               



doubt a legitimate interest and right that the State and the parents possess.  Contrary to  

                                                                                                                                                                                                                                                                



the Supreme Court's clear statement in this regard, the Alaska Court today trivializes and  

                                                                                                                                                                                                                                                           



makes this right of no effect.  

                                                                                         



                    2                   Planned Parenthood of Southeastern Pa. v. Casey                                                                                                          , 505 U.S. 833, 871-72                         



(1992) (internal citations omitted).                                                                       



                    3                   AS 18.16.010-.040; Alaska Laws Initiative Meas. 2 (Bal. Meas. 2), 26th  

                                                                                                                                                                                                                                                        

Leg., 2d Sess. (2010).  See also Planned Parenthood of Alaska v. Campbell, 232 P.3d  

                                                                                                                                                                                                                                          

725, 727 (Alaska 2010) (discussing the initiative's procedural history).  

                                                                                                                                                                                              



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I.               INTRODUCTION  



                                 [T]he right to the care and custody of one's own child is a  

                                                                                                                                                                                 

                                 fundamental right recognized by both the federal and state  

                                                                                                                                                                        

                                 constitutions.  This right is one of the most basic of all civil  

                                                                                                                                                                  

                                 liberties.[4]  



                                 This appeal raises questions about the Parental Notification Law through  

                                                                                                                       



the lens of minors' equal protection and privacy rights, but it also raises questions about  

                                                                                                                                                                                                       



parents' fundamental rights to be informed  that their minor daughter is seeking an  

                                                                                                                                                                                                              



abortion and parents' rights to discuss this potentially life-changing decision with their  

                                                                                                                                                                                                          

daughter before she undergoes this procedure.5   In 1997 the Alaska Legislature enacted  

                                                                                                                                                                                                  



a law that provided that minors could not obtain abortions without their parents' consent,  

                                                                                                                                                                                                 

                                                                          6     Planned Parenthood challenged this Alaska Parental  

subject to certain exceptions.                                                                                                                                                                  

                                              



                 4               Seth D. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                                       ,  



 175 P.3d 1222, 1227-28 (Alaska 2008) (citations omitted). I acknowledge that this quote                                                                                                                

is frequently found in the context of court decisions concerning the termination of                                                                                             

parental rights.                       But it seems reasonable to conclude that parents' fundamental rights to                                                                                                  

provide care for their children include the right to know that their minor daughter is                                                                                                                          

planning to obtain an abortion and the right to counsel their daughter concerning the                                                                                                                        

"philosophic and social arguments of great weight" recognized by the Supreme Court in                                                                                                                           

Planned Parenthood v. Casey                                               , quoted above.       



                 5               The majority argues that the issue before this court has nothing to do with  

                                                                                                                                                                                                          

parents' constitutional rights to parent their children and that this case instead involves  

                                                                                                                                                                                                

only the questions of whether the Notification Law violates minors' equal protection or  

                                                                                                                                                                                                                

privacy rights.  In my view, this case is more about the rights of parents to be informed  

                                                                                                                                                                                              

about and involved in their daughter's decision to have an abortion than anything else.  

                                                                                                                                                                                                                       

Nevertheless, the legal analysis in this dissent responds to the court's majority and  

                                                                                                                                                                                                           

concurring opinions that rest upon equal protection and privacy grounds and conclude  

                                                                                                                                                                                              

that the Parental Notification Law does not violate either equal protection or the right to  

                                                                                                                                                                                                                

privacy.  



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

                                                                                        



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                                                                                                                                                7  

Consent Act, arguing that it violated the minors' rights to privacy and equal protection.                                                          



                                                                                                                                             

In a 3-2 decision, the Alaska Supreme Court agreed with Planned Parenthood that the  



Parental Consent Act violated the minors' rights to privacy and decided that it did not  

                                                                            8  But notably, the court majority gave its  

                                                                                       

                                         

need to reach the equal protection challenge. 



repeated, unambiguous blessing to a law upholding parents' rights to be notified that  

                                                                                                                                            



their minor daughter is seeking an abortion:  

                                                            



                       We decide today that the State has an undeniably compelling  

                                                                                                         

                       interest in protecting the health of minors and in fostering  

                                                                                                             

                       family  involvement  in  a  minor's  decisions  regarding  her  

                                                                                                                      

                      pregnancy . . . .  [ W]e 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.[9]  

                                                      

                                                                        



The court explained its rationale why a parental notification statute, as opposed to a  

                                                                                                                                                



parental consent statute, is constitutionally permissible:  

                                                                                               



                       There exists a less burdensome and widely used means of  

                                                                                                            

                       actively involving parents in their minor children's abortion  

                                                                                                              

                       decisions: parental notification. 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  minor's  abortion  

                                                                                                             



           7          Planned Parenthood II                   , 171 P.3d 577, 580 (Alaska 2007).                           



           8          Id .  at  581  n.21,  585.               In  my  view,  the  dissenting  opinion  in Planned  

                                                                                                                                    

Parenthood II, authored by Justice Carpeneti and joined in by Justice Matthews, is a far  

                                                                                                                                              

more compelling resolution of the privacy argument raised in that case. See id. at 585-98  

                                                                                                                                       

(Carpeneti, J., dissenting).   I can only echo Justice Carpeneti's remarks in Planned  

                                                                                                                                    

Parenthood II, which I find equally applicable to this appeal:  "Because this court's  

                                                                                                                                      

rejection of thelegislature's thoughtful balance is inconsistent with our own case law and  

                                                                                                                                             

unnecessarily dismissive of the legislature's role in expressing the will of the people, I  

                                                                                                                                                 

respectfully dissent."  Id . at 585.  

                                                



           9          Id . at 579 (emphasis added) (majority opinion).  

                                                                                        



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----------------------- Page 69-----------------------

                           decision."     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   State's   interests   and   therefore   cannot   be  

                           sustained.[10]  



The court concluded by again lauding the benefits of a parental notification statute in  

                                                                                                                                                                          



language that, given today's decision, can only be regarded as ironic:  

                                                                                                                                              



                           These  expressed  legislative  goals  -  increased  parental  

                                                                                                                                 

                           communication, involvement, and protection - are no less  

                                                                                                                                            

                           likely to accompany parental notification than the parental  

                                                                                                                                   

                           "veto power" [over a minor's decision to have an abortion].  

                                                                                                                                                     

                                        . . . .  

                                               



                                        Notification statutes protect minors by enhancing the  

                                                                                                  

                           potential  for  parental  consultation  concerning  a  [minor's]  

                                                                                                                               

                           decision.  In fact, to the extent that parents who do not have  

                                                                                                                                          

                           a "veto power" over their minor children's 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 notificationrequirementmayactually  

                                                                                                                                    

                           better serve the State's compelling interests.[11]  

                                                                                                  



                           In  reasonable reliance on the court's approval of parents' rights to be  

                                                                                                                                                                        



notified of their daughters' intent to have an abortion, the Alaska Legislature enacted the  

                                                                                                                                                                        



Parental  Notification  Law  in  accordance  with  a  voter  initiative  passed  by  Alaska  

                                                                                                                                                               



             10           Id . (quoting            Ohio v. Akron Ctr. for Reproductive Health                                           , 497 U.S. 502, 511            



(1990)) (emphasis added).              



             11           Id .  at  585  (second  alteration  in  original)  (emphasis  added)  (citations  

                                                                                                                                                          

omitted).  



                                                                                   -69-                                                                            7114
  


----------------------- Page 70-----------------------

                                        12  

citizens.                                        Planned Parenthood again challenged this law, arguing that it violated the                                                                                                                                                                                                                                                                                    



minors' rights to privacy and equal protection.                                                                                                                                                                                               The superior court, mindful of the                                                                                                                              



 supreme court's unqualified approval of a law recognizing parents' rights to be notified                                                                                                                                                                                                                                                                                                



that their minor daughter is seeking an abortion, held that the Parental Notification Law                                                                                                                                                                                                                                                                                                                 



did not violate minors' rights to equal protection.                                                                                                                                                                                           Superior Court Judge John Suddock                                                                                                      



cogently explained:   



                                                                It is hard to fathom the Alaska Supreme Court overturning                                                                                                                                                                            

                                                                the [Parental Notification Law] on equal protection grounds                                                                                                                                                                                             

                                                                notwithstanding   Planned  Parenthood   II 's   privacy-clause  

                                                                affirmance   .   .   .   .     When   a   minor   decides   to   opt   out  of  

                                                                pregnancy,   she   is   no   longer   similarly   situated   with   other  

                                                                pregnant  minors   with   respect   to   the   familial   consultation  

                                                                issue.     Accordingly,   this   court   holds   that  the   [Parental  

                                                                Notification Law] does not violate Alaska's equal protection                                                                                                                                                                                   

                                                                clause.  



                                                                But today a majority of the supreme court inexplicably walks back on its   



broad pronouncements in                                                                                                   Planned Parenthood II                                                                                          and holds that                                                    theParentalNotification                                    



Law   unconstitutionally   violates   pregnant  minors'   rights   to   equal   protection.     The  



majority does so by the expedient of finding that pregnant minors who seek abortions are                                                                                                                                                                                                                                                                                                                         



 similarly situated to minors who wish to carry their pregnancies to term - an untenable                                                                                                                                                                                                                                                                                         



conclusion.    The determination that two groups are similarly situated is a finding of                                                                                                                                                                                                                                                                                                                             



                                 12                             AS 18.16.010-.040; Alaska Laws Initiative Meas. 2 (Bal. Meas. 2), 26th                                                                                                                                                                                                                                                                   



Leg., 2d Sess. (2010).  See also Planned Parenthood of Alaska v. Campbell, 232 P.3d   

725, 727 (Alaska 2010) (discussing the initiative's procedural history).                                                                                                                                                                                                                                    



                                                                                                                                                                                                       -70-                                                                                                                                                                                             7114
  


----------------------- Page 71-----------------------

                          13  

  fact,                           subject to reversal by an appellate court only if the trial court that made that factual                                                                                                                                                                                                                                                                                                                               

  finding clearly erred.                                                                                              14  



                                      13                                   The majority today does not agree that whether two groups are similarly                                                                                                                                                                                                                                                                                          



  situated is a question of fact.                                                                                                                                  The majority acknowledges that this court has held in a                                                                                                                                                                                                                                                             

 unanimous   decision   as   recently   as   two  years  ago   that   "[w]hether   two   entities   are  

  similarly situated is generally a question of fact."                                                                                                                                                                                                                           State v. Schmidt                                                                               , 323 P.3d, 647, 655                                                                    

  (Alaska 2014). But today, being confronted with this inconvenient holding, the majority                                                                                                                                                                                                                                                                                                                                                      

 now claims that this statement "may have created some ambiguity about the standard of                                                                                                                                                                                                                                                                                                                                                                                            

 review for 'similarly situated' when examining an equal protection challenge under the                                                                                                                                                                                                                                                                                                                                                                                     

  'shorthand analysis' - is it a question of fact or is it a mixed question of fact and law?"                                                                                                                                                                                                                                                                                                                                                                

  Opinion at 26.                                                                         The majority                                                                       rationalizes that "rather                                                                                                                  than  resolving the 'similarly                                                                                

  situated' issue purely as a factual matter" in                                                                                                                                                                                           Schmidt, "we considered the superior court's                                                                                                                                                                 

  factual findings . . . and held as a matter of law that same-sex couples who would marry                                                                                                                                                                                                                                                                                                                                                                   

 if allowed to do so were . . . similarly situated to married couples."                                                                                                                                                                                                                                                                                                         Opinion at 26 n.82.                                                                                              

 But the majority also claims that "[w]e do not need to address that question [raised by                                                                                                                                                                                                       

 Schmidt  regarding the 'similarly situated' standard of review] here" because we are not                                                                                                                                                                                                                                                                                                                                                                                   

 using a shorthand analysis.                                                                                                                            Opinion at 26-27.                                                                                          



                                                                           The standard of review can be critical to the outcome of a case. If the issue                                                                                                                                                                                                                                                                                                          

 presented concerns a factual finding by the trial court, this court will review that finding                                                                                                                                                                                                                                                                                                                                                        

 under a very deferential clear error standard: only if the trial court's finding is clearly                                                                                                                                                                                                                                                                                                                                              

  erroneous will we reverse that finding.                                                                                                                                                                              Planned Parenthood II                                                                                                             , 171 P.3d at 581.                                                                                But if   

 the issue presented involves a question of law, this court will be free to substitute its own                                                                                                                                                                                                                                                                                                                                                                        

judgment for that of the trial court. This court reviews such questions de novo, adopting                                                                                                                                                                                                                                                                                                                                                    

 the rule of law "in light of precedent, reason, and policy."                                                                                                                                                                                                                                                                     Id .  



                                                                           It is ironic, at the least, that themajoritytoday must disavow precedent even                                                                                                                                                                                                                                                                                                            

 with respect to the standard of review in order to also disavow its approval of a parental                                                                                                                                                                                                                                                                                                                                                

 notification law repeatedly championed in                                                                                                                                                                                                        Planned Parenthood II                                                                                                                    .    The law on the                                                             

  standard of review had been settled and is straightforward:                                                                                                                                                                                                                                                                        whether the two groups are                                                                                                             

  similarly situated has been traditionally understood to be a question of fact.                                                                                                                                                                                                                                                                                                                                                         Now the   

 majority unjustifiably uses its "independent judgment" to "clarify" the law to avoid                                                                                                                                                                                                                                                                                                                                                                        

  applying the clearly erroneous standard of review to the superior court's factual finding                                                                                                                                                                                                                                                                                                                                                           

 that minors seeking abortions are not similarly situated to minors who want to carry their                                                                                                                                                                                                                                                                                                                                                                          

 pregnancies to term.                                                               



                                      14                                   Schmidt, 323 P.3d at 655 (" 'Whether two entities are similarly situated is  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                                                                                                                                     (continued...)  



                                                                                                                                                                                                                                     -71-                                                                                                                                                                                                                           7114
  


----------------------- Page 72-----------------------

                                            In this case the superior court found, reasonably, that minors who seek                                                                                                                                                          



abortions are                               not   similarly situated to minors who want to carry their pregnancies to                                                                                                                                                                



term.   This determination, with which the concurrence agrees, is self-evident.                                                                                                                                                                                        What  



 similarity can there be between a decision to terminate life and a decision to preserve                                                                                                                                                               



life?    Yet   the   majority   concludes,  erroneously   and   in   sweeping   language,   that  



"vindicating the State's compelling interest in encouraging parental involvement in                                                                                                                                                                                                 



minors' pregnancy-related decisions does not support the Notification Law's disparate                                                                                                                                                                         



treatment of the two [similar] classes of pregnant minors," that is to say, minors who                                                                                                                                                                                       



wish to abort their pregnancies and minors who wish to carry their pregnancies to term.                                                                                                                                                                                    



                                            This court has previously proclaimed that "it is the right and duty, privilege                                                                                                                                     



and burden, of all parents to involve themselves in their children's lives; to provide their                                                                                                                                                                                 



children with emotional, physical, and material support; and to instill in their children                                                                                                                                                                        

                                                                                                                                                                                                                                          15      The Parental  

 'moral standards, religious beliefs, and elements of good citizenship.' "                                                                                                                                                                                       



Notification Law focuses on the State's interest in "aiding parents in fulfilling their  

                                                                                                                                                                                                                                                                            

                                                                                  16 by upholding the parents' rights to be notified of a significant  

parental responsibilities"                                                                                                                                                                                                                             

                             



medical decision involving their minor daughter, and to at least have the opportunity to  

                                                                                                                                                                                                                                                                                      



counsel their child regarding this important decision and its lasting consequences.  The  

                                                                                                                                                                                                                                                                              



court's decision today totally undermines the parents' rights and responsibilities in this  

                                                                                                                                                                                                                                                                                



regard and makes a mockery of its earlier proclamations of the proper and fundamental  

                                                                                                                                                                                                                                                   



role parents have traditionally played in their children's lives.  

                                                                                                                                                                                         



                      14                    (...continued)  



                                                                                                                                                                                                                                                   

generally  a  question  of  fact,'  reviewed  for  clear  error."  (citing Alaska  Inter-Tribal  

                                                                                                                                                  

 Council v. State, 110 P.3d 947, 967 (Alaska 2005))).  



                      15                    Planned Parenthood II, 171 P.3d at 583 (quoting  Wisconsin v. Yoder,  

                                                                                                                                                                                                                                                                     

406 U.S. 205, 233 (1972)).  

                                                                                           



                      16                    Id. at 582.  

                                                               



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----------------------- Page 73-----------------------

                                       Under its ruling today,                                             no  parental notification law recognizing parents'                                                                       



fundamental legal rights to notification of, much less meaningful involvement in, their                                                                                                                                                       



minor daughters' decisions to have abortions will be upheld by this court under its                                                                                                                                                                 



strained jurisprudence defining minors' rights to equal protection. And notwithstanding                                                                                                                      



its broad approval in                                          Planned Parenthood II                                                    of a parental notification law being an                                                                     



acceptable lesser restrictive alternative to a parental consent law, the concurrence's                                                                                                                            



opinion today that the Parental Notification Law violates a minor's right to privacy                                                                                                                                                 



suggests that this court will always find a lesser restrictive alternative that will defeat the                                                                                                                                                    



legislature's effort to craft a constitutional parental notification law.                                                                                                                



                                       I cannot see how the court can reach these results under our standard of                                                                                                                                      



review for constitutional questions:  "adopting the most persuasive rule of law in light                                                                                                                                               

                                                                                                           17           I  have  explained  above  why  the  Parental  

of   precedent,   reason,   and   policy."                                                                                                                                                                                        



Notification Law does not violate equal protection: the two classes of minors are not  

                                                                                                                                                                                                                                                  



similarly situated. Given the critical balance between a woman's right to decide to have  

                                                                                                                                                                                                                                              



an abortion, the State's legitimate and compelling interests in the health of the minor who  

                                                                                                                                                                                                                                                



is  seeking  an  abortion,  and  the  parents'  fundamental  rights  to  be  informed  of  and  

                                                                                                                                                                                                                                                



involved in their minor daughter's decision making, I conclude that so long as there is  

                                                                                                                                                                                                                                                       



an effective, reasonably simple way for asufficiently matureminor to bypass the parental  

                                                                                                                                                                                                                                     



notification requirements under the statute, our precedent, reason, and policy compel  

                                                                                                                                                                                                                                      



upholding the Parental Notification Law as a legitimate exercise of the people's power  

                                                                                                                                                                                                                                         



to initiate law and of legislative power to enact law.  In the balance, a mature minor's  

                                                                                                                                                                                                                                     



right to privacy, whatever its contours, is protected by the judicial bypass mechanism  

                                                                                                                                                                                                                          



contained in the statute; an immature minor's right to privacy, if any, is not so protected  

                                                                                                                                                                                                                                 



nor should it be - because she is immature.  

                                                                                                    



                    17  

                                                        

                                       Id . at 581.  



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----------------------- Page 74-----------------------

II.	                 THE   PARENTAL   NOTIFICATION   LAW   DOES   NOT   IN   PRACTICE  

                     INHIBIT A MATURE MINOR'S RIGHT TO OBTAIN AN ABORTION.                                                                                                                                                       



                                          The Parental Notification Law does not require a minor to obtain parental                                                                                                                                     



consent for an abortion. Furthermore, it neither bars a minor from obtaining an abortion                                                                                                                                                               



nor presents significant hurdles for a minor seeking an abortion.                                                                                                                                             Instead, the Parental                    



Notification Law requires that one of the minor's parents receive 48 hours' notice before                                                                                                                                                                     



the   abortion   occurs.    And   this   requirement   is   not   absolute;   the   law   includes   a  



                                                                                                                                                                                                          18  

constitutionally necessary exception to protect the minor's life                                                                                                                                                                                     

                                                                                                                                                                                                                 as well as a judicial  



                                                              19  

                                                                                                                                                                                                                                                                      

bypass mechanism.                                                      This judicial bypass mechanism is available to minors who can  



                                                                                                                                                                                                                                                   

demonstrate "that one or both of the minor's parents or the minor's guardian or custodian  



                                                                                                                                                                                                                                                                        

was engaged in physical abuse, sexual abuse, or a pattern of emotional abuse against the  



                                                                                                                                                                                                                                                 

minor, or that the consent of a parent, guardian, or custodian otherwise is not in the  

                                                                      20   The bypass is also available to minors who - regardless of the  

                                                                                                                                                                                                                                                                        

minor's best interest." 



reason - do not wish to have their parents notified and can demonstrate that they are  

                                                                                                                                                                                                                                                                        



                     18                   AS 18.16.010(g) (providing an affirmative defense for failing to notify a                                                                                                                                                           



minor's parent prior to the abortion when an "immediate threat of serious risk to the life                                                                                                                                                                             

or physical health of the pregnant minor from the continuation of the pregnancy create[s]                                                                                                                                                              

a medical emergency necessitating the immediate performance or inducement of an                                                                                                                                                                                          

abortion");  Roe v. Wade                                                       , 410 U.S. 113, 163-64 (1973) ("If the State is interested in                                                                                                                              

protecting fetal life after viability, it may go so far as to proscribe abortion during that                                                                                      

period,   except  when   it   is   necessary   to   preserve   the   life   or   health   of   the   mother."  

(emphasis added)).   



                     19                    See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 899  

                                                                                                                                                                                                                                                                     

(1992) ("Our cases establish, and we reaffirm today, that a State may require a minor  

                                                                                                                                                                                                                                                           

 seeking an abortion to obtain the consent of a parent or guardian, provided that there is  

                                                                                                                                                                                                                                                                            

an adequate judicial bypass procedure." (emphasis added)).  

                                                                                                                                                                     



                     20                   AS 18.16.030(b)(4)(B) (emphasis added).  

                                                                                                                                                       



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----------------------- Page 75-----------------------

"sufficiently mature and well enough informed to decide intelligently whether to have  

 an abortion without notice to . . . a parent, guardian, or custodian."21  

                                                                                                    



                        Even  in  the  absence  of  abuse,  the  bypass  process  presents  an  almost  

                                                                                                                                               



negligible  hurdle  to  access  to  an  abortion  with  the  inclusion  of  the  "mature  and  

                                                                                                                                                    



well-informed" language in AS18.16.030(b)(4)(A). Thesuperior court found that under  

                                                                                                                                                 



this broad provision "[i]f an Alaskan minor invokes the sufficient-maturity prong in her  

                                                                                                                                                      

bypass petition, her petition will invariably be granted."22                                               While filing a petition and  

                                                                                                                                                     



 appearing in court may seem to be a challenging experience for a minor, it is not difficult  

                                                                                                                                             



 for an appropriately mature and well-informed minor to obtain judicial bypass, not only  

                                                                                                                                                   



because of the broad scope of the language in AS 18.16.030(b)(4)(A), but also because  

                                                                                                                                             



 access and cost are not barriers in either theory or practice.  

                                                                                           



                        First, the statute itself  ensures that access and  cost are not barriers to  

                                                                                                                                                       



judicial bypass.  The statute explicitly provides that an attorney will be appointed if the  

                                                                                                                                                      

                                                                  23  and that there is no cost to obtain the necessary  

minor does not retain one of her own                                                                                                      

                                                            

                                                                             24   The statute also provides that the minor  

 forms, file these forms, or appear in court.                                                                                                   

                                                                   



must be informed that she may request a telephonic hearing to avoid an in-person hearing  

                                                                                                                                              

 and that the court may excuse a minor from school to participate in her hearing.25  

                                                                                                                                 



            21          AS 18.16.030(b)(4)(A).   



            22  

                                                                                                                                

                        During the 14 months that this Parental Notification Law was in effect, 9  

                                                                                                                                       

minors filed bypass petitions.  Of those petitions, 8 were granted and 1 was withdrawn.  

The superior court also noted that studies from Minnesota and Massachusetts indicated                                                      

                                                                                                     

their rates of denied petitions to be 0.25% and 0.013%, respectively.  



            23          AS 18.16.030(d).  

                                



            24          AS 18.16.030(l), (m).  

                                                        



            25          AS 18.16.030(n).  

                                



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                                                                            Second, access and cost are not barriers to judicial bypass in practice. The                                                                                                                                                                                                                                                                                                                    



bypass petition instructions list a toll-free number through which the minor can speak to                                                                                                                                                                                                                                                                                                                                                                                               



 a magistrate judge, who may appoint counsel and help direct the minor to the correct                                                                                                                                                                                                                                                                                                                                                                      



 court.    Minors may file their bypass petitions via email, fax, mail, or in person.                                                                                                                                                                                                                                                                                                                                                                                       An  



Alaska attorney who handled judicial bypass petitions testified in the superior court that                                                                                                                                                                                                                                                                                                                                                                                     



 she was able to prepare minors for these hearings by phone and that one of the minors                                                                                                                                                                                                                                                                                                                                                 



 she represented successfully appeared at the hearing telephonically.                                                                                                                                                                                                                                                                                                                       She indicated that                                                                



 all of the petitions she worked on were successful; that she "receives notice from the                                                                                                                                                                                                                                                                                                                                                                                          



 court system within an hour or two of a petition's lodging"; that all of her conferences                                                                                                                                                                                                                                                                                                                                       



with the minors occurred within 24 hours of the initial contact; and that all of her bypass                                                                                                                                                                                                                                                                                                                                                                  



hearings were held within 48 hours of the filing of the petition.                                                                                                                                                                                                                                                



                                                                           Thus, the Parental Notification Law includes an easily navigable, broad                                                                                                                                                                                                                                                                                                                



bypass process, which ensures that the Notification Law does not stand in the way of a                                                                                                                                                                                                                                                                                                                                                                                                       



minor's access to abortion.                                                                                                                                     However, even though all petitions under the Parental                                                                                                                                                                                                                             



Notification Law have been granted so far, this law is necessary for the State to ensure                                                                                                                                                                                                                                                                                                                                                                      



that in those cases where a minor does not petition to bypass parental notification,                                                                                                                                                                                                                                                                                                                                                                                          the  



people society holds responsible for her well-being - her parents - will be informed                                                                                                                                                                                                                                                                                                                                                           



 of what is happening in her life.                                                                                                                         



III.                                  EQUAL PROTECTION   



                                      A.                                   Our Departure From                                                                                                               Planned Parenthood II                                                                                                       



                                                                           In  Planned   Parenthood   II,   this   court   decided   "that   the   State   has   an  



undeniably compelling interest in protecting the health of minors and in fostering family                                                                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                                                                                             26  The court concluded,  

 involvement in a minor's decisions regarding her pregnancy."                                                                                                                                                                                                                                                                                                                                                                        



however,  that  the  Parental  Consent  Act  burdened  a  minor's  fundamental  right  to  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                      26  

                                                                                                                                                                                                                                                                                                                                                                           

                                                                          Planned Parenthood II, 171 P.3d 577, 579 (Alaska 2007).  



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----------------------- Page 77-----------------------

             27  

privacy          and that even though the State's interests in "protecting minors from their own                                                 



immaturity   and   aiding   parents   in   fulfilling   their   parental   responsibilities"   were  



                     28  

                                                                                                                                                

compelling,             the Parental Consent Act could not stand because it failed to use the least  



                                                                                                                            29  

                                                                                                             

restrictive means available to advance the State's compelling interests. 



                                                                                                                                                   

                       While this court held that theParental ConsentAct improperly balanced the  



                                                                                                                                                 

minor's  right  to  privacy  and these compelling government interests,  the court also  



                                                                                                                                                    

endorsed "a statutory scheme which ensures that parents are notified so that they can be  



                                                                                                                   30  

                                                                                                                                   

engaged in their daughters' important decisions in these matters."                                                      More specifically,  



                                                                                                                                          

this court held that "[t]here exists a less burdensome and widely used means of actively  



                                                                                                                                                     31  

                                                                                                                                                          

involving parents in their minor children's abortion decisions:  parental notification." 



                                                                                                                                      

The court identified the option of parental notification as a constitutionally acceptable  



                                                                                                                                           

lesser restrictive means of achieving the State's compelling interests; the court claimed  



                                                                                                                                         

that "[b]ecause 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  



                                                                                                                                                     32  

                                                                                                                                                          

restrictive means of achieving the State's interests and therefore cannot be sustained." 



                                                                                                                                                

That last holding was based on the idea that the legislature could have achieved the same  



            27         Id.  at 581-82.
   



            28         Id.  at 582.
   



            29
        Id. at 583-85.  

                                  



            30         Id . at 579.  

                                  



            31         Id .  



            32         Id .  



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----------------------- Page 78-----------------------

                                                                                                                                                                              33  

goals through less restrictive means:                                                    namely, a parental notification law.                                                      This was an             



explicitendorsementofparental                                                notification. By                       strikingdown                      the ParentalNotification      



Law, today's decision departs - without any compelling reason - from the court's                                                                                                                



decision and rationale in                                   Planned Parenthood II                                    .  



                                Today's majority opinion recognizes this inconsistency and claims that                                                                                                 



Planned Parenthood II                                   did not "mean that every conceivable notification law will satisfy                                                                        

                                                                                                                                                                            34     The opinion  

the separate and independent constitutional equal protection standard."                                                                                                                       



goes on to proclaim that "the Notification Law stands or falls on its own specific terms  

                                                                                                                                                                                                    

and stated justifications."35   And its reasoning suggests that the legislature could amend  

                                                                                                                                                                                                 



the Parental Notification  Law  or  make further findings that might make a parental  

                                                                                                                                                                                            



notification statute constitutional under Alaska law.  

                                                                                                                   



                                But  the  majority's  equal  protection  analysis  does  not  rely  on  or  even  

                                                                                                                                                                                                    

mention  the  specific  terms  and  shortcomings  of  this  parental  notification  statute.36  

                                                                                                                                                                                                                   



Instead, it focuses on the fact that the statute requires notification when minors choose  

                                                                                                                                                                                                



to abort but not when they choose to carry to term.  Most instructive is the following  

                                                                                                                                                                                         



statement:  



                                We must conclude that the State's asserted interests do not  

                                                                                                                                                                         

                                justify  a  distinction  between  pregnant  minors  seeking  to  

                                                                                                                                                                           

                                terminate  and  those  seeking  to  carry  to  term.  .  .  .                                                                          The  

                                                                                                                                                                      



                33              Id .  



                34              Opinion at 17-18.           



                35              Opinion at 20.              



                36              Had there been something specific to this notification law that rendered it                                                                                                   



unconstitutional   the   majority's   analysis   would   be   expected   to   look   similar   to   the  

concurrence's analysis of the privacy issue.   That it does not is telling.  Instead, the  

                                                                                                                                                                                                         

majority engages in an unconvincing equal protection analysis, ultimately grounded on  

                                                                                                                                                                                                           

a false similarity between two distinct classes of pregnant minors.  

                                                                                                                                             



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----------------------- Page 79-----------------------

                           Notification   Law's   discriminatory barrier                                         to   those minors   

                           seeking    to    exercise    their    fundamental    privacy    right    to  

                           terminate   a   pregnancy   violates   Alaska's   equal  protection  

                           guarantee.[37]  



 But a law requiring parental notification of a minor's abortion necessarily differentiates  

                                                                                                                                                  



 between minors seeking an abortion and minors who intend to carry to term.  This is  

                                                                                                                                                                        



 because   Alaska  minors  who  intend  to  carry  to  term  are  able  to  consent  to  

                                                                                                                                                                      

 pregnancy-related care without parental notification or consent.38   The legislature could  

                                                                                                                                                                 



 have required parental notification for any pregnancy-related treatment of a minor.  But  

                                                                                                                                                                     



 the parties agreed in the superior court that "no useful purpose is served by withdrawing  

                                                                                                                                                   



 medical emancipation and requiring parental consultation for carry-to-term decisions."  

                                                                                                                                                      



 And the superior court found that medical emancipation for carry-to-term decisions  

                                                                                                                                                         



 encouraged  minors  "to  obtain  prenatal  care  [that]  advances  important  interests  in  

                                                                                                                                                                       



 maternal and fetal health."  This is all the more important in light of the superior court's  

                                                                                                                                                              



 findings regarding the serious health risks pregnant minors face when carrying to term.  

                                                                                                                                                                  



                           Furthermore,  the  majority  of  states  whose  laws  we  cited  in  Planned  

                                                                                                                                                          

Parenthood II make a similar distinction.39  

                                                             



              37           Opinion at 37.         



              38           AS 25.20.025(a)(4).   



              39           Planned Parenthood II                         , 171 P.3d 577, 583 (Alaska 2007) ("Although the                                             



 precise   details   of   [the   parental  notification   statutes   cited   in   note   40   of   Planned  

Parenthood II] 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 children's decision-making processes." (emphasis added)).                                                                                         

 The following list sets forth the status of this distinction in the states we cited in Planned  

                                                                                                                                                            

Parenthood II, note 40:  COLO. R                                   EV. S     TAT.  12-37.5-101 to -108 (requiring parental         

                                                  

 notification),  13-22-103.5 (providing medical emancipation for care related to an                                                                                  

 intended live birth); D                    EL. C     ODE  ANN . tit. 13,  710 (providing medical emancipation for,                                                 

                                                                                                                                                 (continued...)  



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----------------------- Page 80-----------------------

                                                    Instead ofexplaining what portionofAS18.16.030                                                                                                                                                   justifies departing from   



the court's                                  unqualified   approval of parental notification                                                                                                                                      in   Planned   Parenthood   II,  



                          39                        (...continued)  



                                                                                                                                                                                                                                                                                                                   

 inter alia,  pregnancy-related care other than abortion to minors age 12 and older),  

                                                                                                                                                                                                                                               LA.   STAT.      390.01114  

tit.  24,    1780-1789B  (requiring  parental  notification);  F 

 (requiring parental notification),  743.065(a) (providing medical emancipation for a                                                                                                                                                                                                                                                   

minor for pregnancy-related care); G                                                                                                               A. C              ODE   ANN .  15-11-680 to -688 (requiring                                                                                      

parental notification),  31-9-2(a)(5) (providing every woman with the ability to consent                                                                                                                                                                                                                        

to medical treatment when related to her pregnancy),  31-9-5 (specifically excluding                                                                                                                                                                                                                  

abortion   and   sterilization   from                                                                                               31-9-2);   410  ILL. C                                                            OMP. S                      TAT.   210/1   (granting   a  

pregnant minor the same capacity to act as a person of legal age with respect to medical                                                                                                                                                                                                                       

consent), 750 I                                         LL. C                  OMP. S                     TAT. 70 (requiring parental notification); M                                                                                                                              D. C             ODE ANN .,  

       EALTH-GEN.     20-102(c)(4)   (permitting   a   minor   to   consent   to   pregnancy-related  

H                                                         

treatment),      20-103   (requiring   parental   notification);  MINN.    STAT.       144.343(1)  

 (permitting a minor to consent to pregnancy-related treatment),  144.343(2) (requiring                                                                                                                                                                                                              

parental   notice   of   abortion);   MONT.    CODE   ANN .       41-1-402(2)(c)   (emancipation  

provision)  50-20-501 to -511 (requiring parental consent). Montana enacted a notice                                                                                                                                                                                                                             

law in 2011 and a consent law in 2013.                                                                                                                         The 2013 consent statute replaced the 2011                                                                                                                 

notification statute, but the 2013 statute was enjoined, so the 2011 statute remains in                                                                                                                                                                                                            

effect.   Planned Parenthood of Mont. v. State                                                                                                                                        , 342 P.3d 684, 687 n.2 (Mont. 2015).                                                                                                                       

Kansas allows a minor to consent to pregnancy-related care when no parent or guardian                                                                                                                                                                                                                       

is   available.   KAN. S                                                         TAT. A                      NN .                   38-123   (allowing   a   pregnant  minor   to   consent   to  

pregnancy-related care "where no parent or guardian is available"),  65-6704 to -6705                                                                                                                                                                                                                                 

 (requiring parental consent for minor's abortion).                                                                                                                                                   Iowa, Nevada, South Dakota, and                                                                                          

West Virginia do not have medical emancipation laws allowing minors to consent to                                                                                                                                                                                                                                                     

pregnancy-related medical care, but they do have parental notification laws.                                                                                                                                                                                                                                        IOWA  

CODE   135L.3; NEV. R                                                                           EV. S                TAT. 442.255 (Nevada's parental notification statute is                                                                                                                                                         

                                                                  

permanently enjoined.                                                                      Glick v. McKay                                                     , 937 F.2d 434 (9th Cir. 1991) (preliminary                                                                                   

injunction   upheld);   No.   CV-N-85-331-ECR   (D.   Nev.   Oct.   10,   1991)   (permanent  

                                                                                                        ODIFIED  LAWS  34-23A-7; W. V                                                                                                   A. C            ODE  16-2F-1 to -9.   

injunction issued)); S.D. C 

New Jersey has a medical emancipation law, but the state's parental notification law was                                                                                                                                                                                                                                       

                                                                                                                                          TAT.    ANN .      9:17A-1   (emancipation   provision),  

declared   unconstitutional.     N.J.  S 

  9:17A-1.1 to -1.12 (requiring parental notification)                                                                                                                                                         declared unconstitutional under                                                                       

state constitution in Planned Parenthood of Cent. N.J. v. Farmer                                                                                                                                                                                                , 762 A.2d 620, 622                                            

 (N.J.  2000).   Nebraska now requires parental consent. N                                                                                                                                                                 EB. R               EV. S                TAT.  71-6901 to   

 -6908.   



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----------------------- Page 81-----------------------

today's opinion suggests that there is something wrong with                                                                                                             this  notification statute and                                                 



that some other notification statute might survive an equal protection challenge.                                                                                                                                                  But it   



is difficult to see how any                                                      parental notification law could survive unless there are                                                                                                 



significant changes to Alaska's medical emancipation laws, such that minors intending                                                                                                                                    



to carry to term are subject to parental notification as well.                                                                                                       Neither party endorses such                                       



changes.  



                   B.                 The Two Groups Are Not Similarly Situated.                                                                   



                                      The Alaska Constitution provides equal protection only among those who                                                                                                                            

are similarly situated.                                      40                                                                                                                                                                     

                                                                   If the groups being compared are similarly situated "we apply  



                                                                                                                                                                41  

                                                                                                                                                                                                                                          

a sliding  scale of scrutiny to  the challenged  practice."                                                                                                               "[W]e first determine the  



                                                                                                                                                                                                                          

importance  of  the  constitutional  right  .  .  .  .                                                                                              We  then  examine  the  [S]tate's  



                                                                                                                                                                                                                                                42  

                                                                                                                                                                                                                    

interests . . . .  Finally, we consider the means the [S]tate uses to advance its interests." 



                                                                                                                                                                                                                                         

                                      The majority concedes that there is a "factual difference between the two  



                                                                                                                                                                                                                              

classes of pregnant minors." However, the majority concludes that "the State's asserted  



                                                                                                                                                                                                                                          

interests do not justify a distinction between pregnant minors seeking to terminate and  



                                                                       

those seeking to carry to term."  



                                                                                                                                                                                                                                           

                                      As explained in the Introduction, the Parental Notification Law does not  



                                                                                                                                                                                                                           

violate Alaska's guarantee of equal protection because the two groups are not similarly  



                                                                                                                                                                                                                                         

situated.  I agree with the reasoning set forth in the superior court's decision on this  



                                                                                                                   

matter, with which the concurrence also agrees.  



                   40                 Shepherd v. State, Dep't of Fish & Game                                                                             , 897 P.2d 33, 44 (Alaska 1995)                                                              



("The Equal Rights and Opportunities Clause of the Alaska Constitution requires equal                                                                                                                                                

treatment  only for those who are similarly situated                                                                                           ." (emphasis added)).                



                   41                Alaska Inter-Tribal Council v. State , 110 P.3d 947, 966-67 (Alaska 2005).  

                                                                                                                                                                                                                                  



                   42                Id. at 967 (footnotes omitted).  

                                                                                                 



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----------------------- Page 82-----------------------

                       C.                    A Review Of Other States' Notification And Consent Laws                                                                                                                                            



                                              Today's opinion is also a significant departure from the majority approach                                                                                                                                                



throughout the United States regarding parental rights to notice of or consent to their                                                                                                                                                                                                

                                                                      43                                                                                                                                                                                  44  or parental  

daughter's abortion.                                                         A majority of states have enacted parental notice                                                                                                                                   



                       43                     Contra  Opinion at 38 ("Our decision today is not novel.").                                                                                                               



                       44                     Twelve other states have active parental notification laws.                                                                                                                                                  COLO. R                          EV.  



     TAT.  12-37.5-101 to -108; D                                                                                 EL. C              ODE   ANN . tit. 24,  1780-1789B; F                                                                                         LA. S              TAT.  

 S                    

                                                      A. C            ODE  ANN .  15-11-680 to -688; 750 I                                                                                             LL. C               OMP. S                  TAT. 70; I                     OWA  

  390.01114; G 

CODE      135L.1   to   L.8;   MD.   CODE   ANN .,   HEALTH-GEN.      20-103;  MINN.   STAT.  

                                                                  EV. S              TAT. A                  NN .  132:32-36; S.D. C                                                                 ODIFIED   LAWS    34-23A-7;   

  144.343; N.H. R 

                 A.C           ODE   16-2F-1 to -9;                                                   Planned Parenthood of Mont. v. State                                                                                           , 342 P.3d 684, 687                                

W.V 

n.2   (Mont. 2015) (indicating parental consent law is currently enjoined, but parental                                                                                                                                                                                   

notice law is in effect).                                                       



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----------------------- Page 83-----------------------

                   45                                                                              46  

consent                laws that are currently in effect.                                                The Supreme Court of the United States has                                                        



                                                                                                                                                                                                               47  

held that a law requiring parental notification is not unconstitutional under federal law.                                                                                                                           



 Several of these state laws have been challenged and declared constitutional under their  

                                                                                                                                                                                                        

                                                                          48   including  some  that  have  survived  equal  protection  

respective  state  constitutions,                                                                                                                                                        

                                        



                45               Twenty-six   states   have   active   parental   consent   statutes.   ALA.    CODE  



  26-21-1 to -8; A                            RIZ. R         EV. S       TAT. A           NN .  36-2152; A                          RK. C        ODE  ANN .  20-16-801 to   

               DAHO  CODE  ANN .  18-609A (as amended by 2015 I                                                                            DAHO  SESS. L                     AWS  141); I  ND .  

-810; I 

CODE    16-34-2-4; K                               AN. S         TAT. A          NN .  65-6705; K                          Y. R      EV. S        TAT. A          NN .  311.732; L                        A.  

REV. S           TAT. A           NN .  40:1299.35.5; M                                    ASS . G          EN. L        AWS. ch. 112,  12S; M                                       ICH. C         OMP.  

LAWS                        722.901-.908;                          MISS.             CODE              ANN .                     41-41-51                   to        -63;          MO.            REV.  

 STAT.  188.028; N                              EB. R        EV. S        TAT.  71-6901 to -6911; N.C. G                                                   EN. S        TAT.  90-21.6      

                                      ENT.   CODE      14-02.1   to   -03.1;   OHIO   REV.   CODE   ANN .     2919.121  

to   .10;   N.D.  C 

                                                                                                                                                                                                        

unconstitutional provisions severed in Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d  

                                                                 KLA.S           TAT. tit. 63,  1-740.1                               to .6; 18 P            A.C        ONS. STAT. ANN .  

361, 364 (6th Cir. 2006); O 

                                  EN. L        AWS   23-4.7-6; S.C. C                                ODE  ANN .  44-41-31; T                                   ENN. C          ODE  ANN . 37-  

  3206; R.I. G 

 10-301 to -308; T                           EX. O         CC. C         ODE   ANN .  164.052(a)(19); U                                              TAH   CODE   ANN .  76-7-                     

304.5; V             A.C       ODE  ANN .                  16.1-241(W) (creating a process whereby a minor may petition  

a court for the ability to consent to an abortion),  54.1-2969(J) (excluding abortion from                                                                                                            

a list of procedures to which a minor may independently consent unless the minor                                                                                                                   

complies with  16.1-241); W                                            IS. S      TAT.  48.375; W                         YO. S        TAT. A           NN .  35-6-118.                       But see   

CAL. H            EALTH  & S               AFETY  CODE   123450 (requiring parental consent)                                                                          invalidated under   

state constitution in Am. Acad. of Pediatrics v. Lungren                                                                              , 940 P.2d 797, 800 (Cal. 1997).                             



                46               The  majority  argues  that  I  cite  these  jurisdictions  without  "[r]elevant  

                                                                                                                                                                                       

inquiries about each jurisdiction's laws."  Opinion at 39.  But in Planned Parenthood II  

                                                                                                                                                                                                               

the dissent cited these jurisdictions for similar propositions, and I believe it is fair to cite  

                                                                                                                                                                                                          

them  for  similar  purposes  here.                                                         Planned  Parenthood  II,  171  P.3d  577,  596  

                                                                                                                                                                                                       

(Alaska 2007) (Carpeneti, J., dissenting).  

                                                                         



                47              H.L. v. Matheson, 450 U.S. 398, 409 (1981) (citing Bellotti v. Baird, 443  

                                                                                                                                                                                                          

U.S. 622, 640, 649 (1979)).  

                                                



                48              Ex  parte  Anonymous,  531  So.  2d  901,  905  (Ala.  1988);  Planned  

                                                                                                                                                                                            

Parenthood Ariz., Inc. v. Am. Ass'n of Pro-Life Obstetricians &Gynecologists, 257 P.3d  

                                                                                                                                                                                                        

 181, 186 (Ariz. App. 2011); Hope Clinic for Women, Ltd. v. Flores, 991 N.E.2d 745,  

                                                                                                                                                                                                        

                                                                                                                                                                                  (continued...)  



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                               49  

challenges.                          Only one state upholding parental notification or consent in the face of an                                                                                                                          



equal protection challenge has equal protection language so different from our own that                                                                                                                                               

it would impact the analysis in this dissent.                                                                           50  



                                                                                                                                                                                                                                        

                                     Having previously stricken the Parental Consent Act and now holding the  



                                                                                                                                                                                                                                         

Parental  Notification  Law unconstitutional  places  Alaska  out  of  the  mainstream of  



                   48                (...continued)  



                                                                                                                                                                                                                        

765-69  (Ill.  2013); In  re  Doe,  407  So.  2d  1190  (La.  1981)  (per  curiam); Planned  

                                                                                                                                                                                                                              

Parenthood League of Mass., Inc. v. Att'y Gen., 677 N.E.2d 101, 106 n.10 (Mass. 1997);  

                                                                                                                                                                                                                       

Pro-Choice  Miss.  v.  Fordice,  716  So.  2d  645,  656-60  (Miss.  1998);  cf.  Planned  

                                                                                                                                                                                                                             

Parenthood of Kan. v. Nixon, 220 S.W.3d 732 (Mo. 2007) (upholding related statute  

                                                                                                                                                                                                                          

providing  civil  penalties  against  providers  of  abortions  who  assist  minors  without  

                                                                                                                                                                                                                                     

parental consent or judicial bypass of the consent requirement).  Arkansas's statute also  

                                                                                                                                                                                                                             

 seems likely to survive constitutional challenges because that state applies the federal  

                                                                                   RK. C          ONST. amend. 68,  2 ("The policy of Arkansas is to                                                                                      

constitutional analysis.  See A 

protect the life of every unborn child from conception until birth, to the extent permitted                                                                                                                           

by the Federal Constitution.").           



                   49                Planned Parenthood Ariz., Inc., 257 P.3d at 186; Hope Clinic for Women,  

                                                                                                                                                                                                                          

Ltd., 991 N.E.2d at 765-69; Planned Parenthood League of Mass., Inc., 677 N.E.2d at  

                                                                                                                                                                                                                                           

 106  n.10  (generally  affirming  parental  consent  statute  in  face  of  equal  protection  

                                                                                                                                                                                                                  

challenge); Pro-Choice Miss., 716 So. 2d at 656-60.  

                                                                                                                                                   



                   50                 Compare Alaska Const. Art. 1,  1 ("This constitution is dedicated to the  

                                                                                                                                                                                                                                        

principle[] . . . that all persons are equal and entitled to equal rights, opportunities, and  

                                                                                                                                                                                                                                      

protection under the law . . . ."), with ARIZ. C                                                                          ONST. art. 2,  13 ("No law shall be enacted                                                     

                                                                                                      

granting to any citizen . . . privileges or immunities which, upon the same terms, shall                                                                              

not equally belong to all citizens or corporations."); I                                                                                        LL. C            ONST. art. 1,  2 ("No person                               

 shall be . . . denied the equal protection of the laws."); M                                                                                              ASS. C            ONST. art. 1 ("All people                        

are born free and equal . . . .                                                      Equality under the law shall not be denied or abridged                                                                            

because of sex, race, color, creed or national origin.").                                                                                                Mississippi's constitution does                                           

not contain specific equal protection language.                                                                                 See generally                          MISS. C              ONST.;  Pro-Choice  

Mississippi v. Fordice                                        , 716 So. 2d 645 (Miss. 1998).                                     



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----------------------- Page 85-----------------------

                                                                                                                                                                                                      51  

accepted limits                                      on   the right to privacy and equal protection                                                                                                          and shows a marked                          



disrespect to the people's and the legislature's expression of the State's interests in both                                                                                                                                                                        



the health and well-being of its minor citizens and the minors' parents' rights to be                                                                                                                                                                                     



informed and involved in their daughters' decision making.                                                                                                         



IV.                  THE RIGHT TO PRIVACY                                         



                                          While   I   agree   with   that   part   of   the   concurrence's   equal   protection  



discussion concluding that the two classes of pregnant minors are not similarly situated,                                                                                                                                                               



I disagree with the concurrence's conclusion that the Parental Notification Law violates                                                                                                                                                                  



the Alaska Constitution's Privacy Clause. The                                                                                                    plain language of the Privacy Clause does  



not address this question, nor is there any suggestion in the history of the constitutional                                                                                                                                            



amendment creating the right to privacy in Alaska that the amendment was intended to                                                                                                                                                                                        



overturn parents' rights to be informed that their minor daughters were intending to                                                                                                                                                                                       



                                                         52  

obtain    abortions.                                                                                                                                                                                                                                           

                                                                       As  explained  above,  in  Planned  Parenthood  II  this  court  



                                                                                                                                                                                                                                                                     

determined -correctly - that the State's interests in "protecting minors fromtheir own  



                                                                                                                                                                                                                                                                     

immaturity   and   aiding   parents   in   fulfilling   their   parental   responsibilities"   are  

                                      53         It is only a misapplication of the "strict scrutiny/narrow tailoring of  

compelling.                                                                                                                                                                                                                                                               



                     51                   See Planned Parenthood of Southeastern Pa. v. Casey                                                                                                                       , 505 U.S. 833, 871-                            



72 (1992).   



                     52                   See Gray v. State, 525 P.2d 524, 528 (Alaska 1974) ("In 1972 Alaska  

                                                                                                                                                                                                                                                           

amended its constitution expressly providing that, 'The right of the people to privacy is  

                                                                                                                                                                                                                                                                             

recognized and shall not be infringed.'  There is no available recorded history of this  

                                                                                                                                                                                                                                                                      

amendment . . . .  But the right of privacy is not absolute.  Where a compelling state  

                                                                                                                                                                                                                                                                   

interest is shown, the right may be held to be subordinate to express constitutional  

                                                                                                                                                                                                                                      

powers such as the authorization of the legislature to promote and protect public health  

                                                                                                                                                                                                                                                               

and provide for the general welfare." (emphasis added) (internal citations omitted)).  

                                                                                                                                                                                                                                           



                     53                   Planned Parenthood II, 171 P.3d 577, 582 (Alaska 2007).  

                                                                                                                                                                                                               



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----------------------- Page 86-----------------------

means-to-end test" that justifies a conclusion that the Parental Notification Act violates                                                                                                      

the Privacy Clause.                              This defies reason and common sense.                                                           54  



                                 I disagree with the concurrence's statement that the Parental Notification  

                                                                                                                                                                

                                                                                                                                                               55     Whether a method  

Law "does not achieve its goals using the least restrictive means."                                                                                                                             

                                                                                                                                            



is the least restrictive means of achieving the State's compelling interests is in the eye of  

                                                                                                                                                                                                              



the beholder. What one judge or policymaker considers to be the least restrictive means  

                                                                                                                                                                                                    



of achieving a given goal may not seem to be the least restrictive means to another judge  

                                                                                                                                                                                                      



or policymaker.   Based on their individual experiences, how they  weigh the given  

                                                                                                                                                                                                    



evidence, and their personal values, whether one policy is less restrictive than another  

                                                                                                                                                                                    



typically comes down to a value judgment.  

                                                                                 



                                 The  Alaska  Supreme  Court's  persistent  use  of  an  ever-narrowing  

                                                                                                                                                                           



means-to-endtest in theseparentalconsent and notification cases demonstrates that when  

                                                                                                                                                                                                      



the test passes the limits of reason and common sense, the test loses whatever legitimacy  

                                                                                                                                                                                          



it (may have) once possessed. The quest to discover "lesser restrictive means" to achieve  

                                                                                                                                                                                                 



the State's compelling interests at some point becomes self-fulfilling - there can always  

                                                                                                                                                                                                  



be  found  some  lesser  alternative  that  might  have  been  employed,  and  thus  every  

                                                                                                                                                                                                    



legislative enactment touching upon abortion can be held unconstitutional - whether  

                                                                                                                                                                                               



                54               Cf. Planned Parenthood of Southeastern Pa.                                                                      , 505 U.S. at 871 ("                             Roe v.   



 Wade  speaks with clarity in establishing not only the woman's liberty but also the State's                                                                                                       

 'important and legitimate interest in potential life.'                                                                      That portion of the decision in                                            Roe  

has   been   given   too  little   acknowledgment   and   implementation   by   the   Court   in   its  

subsequent cases.                            Those cases decided that any regulation touching upon the abortion                                                                               

decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to                                                                                                                       

further a compelling state interest.   Not all of the cases decided under that formulation                                                                  

can be reconciled with the holding in                                                      Roe  itself that the State has legitimate interests in                                                             

the health of the woman                                  and  in protecting the potential life within her." (emphasis added)                                                                       

(internal citations omitted)).               



                55               Concurring Opinion at 44.  

                                                                                          



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----------------------- Page 87-----------------------

under the rubric of right to privacy or equal protection.                                                                                     The court's "lesser restrictive                    



alternative" analysis today                                            reminds me of Zeno's paradox                                                        of the race                    between   the  



Tortoise and Achilles (purporting to prove that the faster runner can never win the race                                                                                                                        



because, when one artificially divides the distance of the racecourse in half, then again                                                                                                                    



in half, and again and again ad infinitum, the runner can never cross the finish line                                                                                                                            



because there will always be some small incremental half-distance remaining).                                                                                             



                                  In   my   view,   once   it   is   understood   that   the   Parental   Notification   Law  



contains an effective, reasonably simple judicial bypass mechanism that will permit                                                                                                                      

sufficiently mature minors to bypass parental notification,                                                                                        56 and provides for bypass if  



there is evidence of parental abuse,57  then the court should respect the people's and the  

                                                                                                                                                                                                                   



legislature's policy decisions and line drawing with respect to the remaining details of  

                                                                                                                                                                                                                     



the Notification Law.   For example, the concurrence finds it objectionable that the  

                                                                                                                                                                                                                  

legislature drew a line at age 16 in the Parental Consent Act58 but drew the line at age 18  

                                                                                                                                                                                                                     

                                                                                  59      I do not find this difference to be of constitutional  

in the Parental Notification Act.                                                                                                                                                       

                                                                       



magnitude.  Though a minor aged 16 to 17 is brought within the Notification Act, if she  

                                                                                                                                                                                                                  



is sufficiently mature, or if there is evidence of parental abuse, then she will be able to  

                                                                                                                                              



bypass parental notification.  I find this entirely reasonable and do not think it is the  

                                                                                                                                                                                                                   



court's constitutional responsibility or prerogative to second guess this legislative policy  

                                                                                                                                                                                                           



call.  

               



                                  Finally, assuming for the sake of argument that the Parental Notification  

                                                                                                                                                                                            



Law as written does violate the Privacy Clause, I also cannot join in the concurrence's  

                                                                                                                                                                                       



                 56               AS 18.16.030(b)(4)(A).   



                 57  

                                            

                                  AS 18.16.030(b)(4)(B).  



                 58  

                                                                                                                                        

                                  See Planned Parenthood II, 171 P.3d at 583.  



                 59  

                                            

                                  AS 18.16.010(a)(3).  



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----------------------- Page 88-----------------------

conclusion that the Notification Law cannot be modified to comply with the Alaska                                                                                                                  



Constitution's privacy guarantee by severing certain provisions.                                                                   



                                 Even if the legislature does not explicitly include a severability clause in                                                                                                   



legislation, Alaska courts interpret legislation as though it includes a severability clause                                                                                                          

                                                  60  "We have consistently severed laws rather than invalidating them  

under AS 01.10.030.                                                                                                                                                                                      

when construing this general severability clause [in AS 01.10.030]."61  

                                                                                                                                          



                                 This court determines severability using a two-part test. "A provision will  

                                                                                                                                                                                                            



not be deemed severable 'unless it appears both that, standing alone, legal effect can be  

                                                                                                                                                                                                               



given to it and that the legislature intended the provision to stand, in case others included  

                                                                                                                                                                                                

in the act and held bad should fall.' "62                                                                  "The key question is whether the portion  

                                                                                                                                                                                                  



remaining, once the offending portion of the statute is severed, is independent and  

                                                                                                                                                                                                           



complete in itself so that it may be presumed that the legislature would have enacted the  

                                                                                                                                                                                                             

valid parts without the invalid part."63  

                                                                            



                                 The  concurrence  identifies  three  major  issues  as  being  overbroad  in  

                                                                                                                                                                                                               



addition to those that the superior court has already enjoined that are not on appeal.  

                                                                                                                                                                                                                       



First, the concurrence states that the clear and convincing evidence standard of proof that  

                                                                                                                                                                                                            



the Parental Notification Law requires a minor to meet before she may bypass the  

                                                                                                                                                                                                            



                 60              AS 01.10.030 ("Any law heretofore or hereafter enacted by the Alaska                                                                                              



legislature which lacks a severability clause shall be construed as though it contained the                                                                                                                   

clause in the following language: 'If any provision of this Act, or the application thereof                                                                                                         

to   any   person   or   circumstance   is   held   invalid,  the   remainder   of   this   Act   and   the  

application to other persons or circumstances shall not be affected thereby.' ").                                                                                                           



                 61              Alaskans  for  a  Common  Language,  Inc.  v.  Kritz ,  170  P.3d  183,  214  

                                                                                                                                                                                                          

(Alaska 2007).  

                     



                 62              Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975) (quoting  

                                                                                                                                                                                                

Dorchy v. Kansas, 264 U.S. 286, 290 (1924)).  

                                                                                              



                 63              Sonneman v. Hickel, 836 P.2d 936, 941 (Alaska 1992).  

                                                                                                                                                         



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----------------------- Page 89-----------------------

                                                                                                                        

Notification Law is one of the strictest in the country. Second, the concurrence suggests  



                                                                                                                                 

that  the  heavy  burden  the  Notification  Law  places  on  physicians  and  families  is  



                                                                                                                               

overbroad compared to similar laws in other jurisdictions.  The concurrence notes that  



                                                                                                                   

a parent or guardian must show government identification and proof of their relationship  



                                                                                                                        

to the minor before receiving notice.   The concurrence also argues that the Parental  



                                                                                                       

Notification Law places physicians under a heavy burden, as they are required to both  



                                                                                                                       

verify that the phone number they use to provide notice is that of the parent or guardian  



                                                                                      

and to ask questions to verify the identity of the parent or guardian once the physician  



                                                                                                                                

reaches them. Finally, the concurrence suggests that the Parental Notification Law is too  



                                                                                                                        

expansive in scope because it applies to minors over the age of sixteen, while Planned  



                                                                                                                               

Parenthood II only considered a notification law applicable to minors aged sixteen and  



younger.  



                                                                                                                               

                    I  disagree  with  the  concurrence's  conclusions  that  this  law  "does  not  



                                                                                                                        

demonstrate a serious effort at narrow tailoring" and that these aspects of the Parental  



                                                                                                                    

Notification Law are overbroad. As just one example, consider the clear and convincing  



                                                                                                                               

evidence  standard,  which  requires  a  minor  to  make  certain  showings  by  clear  and  



                                                                                               

convincing evidence before bypassing the Notification Law.  Practically, this standard  



                                                                                                                         

is no more strict than similar laws in other states.   When a minor seeking a judicial  



                                                                                                                              

bypass appears before the court alleging she is sufficiently mature to make her own  



                                                                                                   

decision, she in all probability will be the only witness present.  Her testimony will be  



                                                                                                                            

persuasive on the merits or it will not be.  If it is persuasive to the court, it will be found  



                                                                                                                                

to be clear and convincing; if it is found unpersuasive, the testimony would not meet the  



                                                 

preponderance of the evidence standard.  



                                                                                                                                

                    Furthermore, the superior court has already enjoined certain portions of the  



                                                                                                                              

Parental Notification Law while upholding others. The superior court enjoined the civil  



                                                                                                                                      

liability portion of the statute as well as the personal-notice-by-physician provision.  



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----------------------- Page 90-----------------------

There   is   no   reason   to   think  that  the   clear   and   convincing   evidence   standard,   the  



provisions that place heavier burdens on physicians and families than similar provisions                                                                                                                                                                                                    



in other states, and the age provisions of the Notification Law cannot also be severed if                                                                                                                                                                                                                                    



they are constitutionally infirm.                                                                                        The provisions that the concurrence questions are no                                                                                                                                            



more fundamental to the Parental Notification Law than those enjoined by the superior                                                                                                                                                                                                               



court. It would be easy to remove the clear and convincing evidence standard, lessen the                                                                                                                                                                                                                                



burdens on families and physicians, and change the age restrictions in the Parental                                                                                                                                                                                                               



Notification   Law   should   the   court   find   that   these   portions   of   the   law   are   indeed  



overbroad.  



                                                  If these provisions are severed, the heart of this legislation remains - the                                                                                                                                                                                         



requirement that parents of a minor seeking an abortion be notified of their daughter's                                                                                                                                                                                



choice.   The other issues the concurrence raises are merely side issues.                                                                                                                                                                      



                                                  The Alaska Legislature and the voters of this state have exerted substantial                                                                                                                                                             

                                                                                                                                                                                                                               64            I  have  little  difficulty  

efforts   to   pass   some   form   of   parental   involvement  law.                                                                                                                                                                                                                         



concluding that they would prefer this court save the Parental Notification Law by  

                                                                                                                                                                                                                                                                                                                        



 severing certain non-integral provisions if at all possible, and I believe we could do so.  

                                                                                                                                                                                                                                                                                                                                      



V.                       CONCLUSION  



                                                  For  all  of  these  reasons,  I  dissent  from  the  majority  opinion's  equal  

                                                                                                                                                                                                                                                                                                            



protection analysis and I disagree with theconcurring opinion's right to privacy analysis.  

                                                                                                                                                                                                                                                                                                   



                         64                       See ch. 14, SLA 1997; ch. 178, SLA 2004; Ballot Measure No. 2 (Alaska  

                                                                                                                                                                                                                                                                                                                                      

2010), http://www.elections.alaska.gov/doc/bmp/2010/2010_prim_bmp.pdf.  

                          



                                                                                                                                                          -90-                                                                                                                                                                  7114  

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