Judge's abortion finding rejected

Posted: Sunday, November 18, 2001

ANCHORAGE -- The Alaska Supreme Court has rejected a Superior Court judge's ruling that the state should not require minors to get permission before having an abortion.

The court's 3-2 ruling Friday doesn't overturn Judge Sen Tan's ruling, which came in a lawsuit challenging a 1997 state law.

Instead, it 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 Tan's ruling 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 of a 1972 case.

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 acceptable 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. Summary judgments are restricted to cases in which the judge is persuaded that the issue is so clear that a trial isn't necessary.

The state's high court agreed there should be an evidentiary hearing on whether the act furthers compelling state interests using the least restrictive means.

"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 16 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."

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

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