State Supreme Court sends abortion issue back to judge

Posted: Sunday, November 18, 2001

ANCHORAGE (AP) -- The Alaska Supreme Court, in a very narrow ruling, has rejected a Superior Court judge's summary judgment in an abortion case.

The court's 3-2 ruling Friday orders evidence hearings on the central issue: whether the state has a ''compelling interest'' in requiring minors to get parental consent, or a judge's order, to obtain an abortion.

The two dissenting justices, Walter L. Carpeneti and Chief Justice Warren W. Matthews, were prepared to overturn the ruling by Superior Court Judge Sen Tan and allow the law to go into effect.

The majority wasn't ready to take that step, however. And the opinion by Justice Alexander O. Bryner says the court has ruled in prior cases that children have fundamental rights under the state constitution, including rights far more trivial.

''In Breese v. Smith, for example, we held that students attending public schools have a 'constitutional right to wear their hair in accordance with their personal tastes,''' Bryner wrote. That issue arose back in 1972.

The justices ''have long emphasized the state's special interest in protecting the health and welfare of children,'' Bryner notes, pointing out that some restrictions that are OK for children wouldn't be right for adults. ''Yet we have not, in doing so, exempted minors from constitutional protection,'' he writes.

The two pivotal clauses of the state constitution in the case are equal protection and the right to privacy.

In the Superior Court ruling, Judge Tan wrote that girls who chose to have babies were treated differently than those who wanted an abortion. That's a violation of equal protection because ''no compelling state interest has been established to justify the classification of minors based on their reproductive choices,'' he determined.

The state's lawyers argued, however, that the court overlooked abundant evidence of compelling state interest and the judge should have heard that evidence and not rejected it out of hand with a summary judgment, which is restricted to cases in which the judge is persuaded that the issue is so clear a trial isn't necessary. The state's high court was persuaded by the state's logic:

''We agree that it was error to declare S.B. 24 unconstitutional without allowing an evidentiary hearing on the issue of whether the act furthers compelling state interests using the least restrictive means,'' the opinion says.

The majority of the justices weren't ready to conclude that there are those ''compelling interests,'' but neither were they ready to dismiss them.

''In our judgment, the conflicting positions asserted in this case are too close, too significant, and too ensnarled in unresolved factual disputes to permit summary adjudication,'' says Bryner's opinion, joined by Justices Dana Fabe and Robert L. Eastaugh.

But Chief Justice Matthews, in his dissent, says he's convinced the compelling state interest is clear:

''The act is designed to make sure that each child makes a decision that is best for her,'' he wrote. ''As such, it serves a compelling state interest.''

Matthews notes that the parental consent rule, which applies to girls sixteen and younger, allows for quick, anonymous and free access to a hearing before a judge, who can determine either that she is mature and informed enough to make her own decision, or that it is in her best interest. The act provides for a free lawyer as well.

And Matthews rejects the argument that it's a violation of equal protection to provide different treatment to girls who choose to give birth and those who want an abortion.

''In the former case, an interest in a healthy baby becomes critical and can justify not requiring parental consent for prenatal care,'' Matthews wrote. ''But refusing to consent to an abortion for a young woman too immature to make her own decisions is an act of a different kind and character.''

While 42 states have enacted parental consent or notification statutes that also allow a judge to approve the abortion decision, Alaska's constitution has some unique wrinkles, particularly its privacy clause, that could affect the ultimate outcome of this case.

The privacy clause was at the heart of a unanimous 1997 ruling by the state's highest court when it decided that reproductive rights were fundamental rights and that a Palmer hospital must allow abortions to be performed there.

The law in question in this case was sponsored by Sen. Loren Leman, R-Anchorage, and was passed in 1997. Gov. Tony Knowles vetoed the measure, but his veto was overridden. The law was then challenged by Planned Parenthood of Alaska and two doctors, Jan Whitefield and Robert Klem.

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