State Upholds Parental Notification Law

In 2010, voters passed an initiative requiring minors to inform a parent 48 hours before getting an abortion. This week, the Anchorage Superior Court upheld most of that law, and even okayed portions that were initially viewed as too burdensome. But while the court determined the law was constitutional, it didn’t endorse it as good public policy.

If the case of Planned Parenthood v. State of Alaska were a movie script, it would end with a plot twist.

Anchorage Superior Court Judge John Suddock spends the first half of his decision knocking down arguments for a parental notification law. He writes that the “overwhelming weight of credible evidence at trial” showed that parental involvement didn’t improve health outcomes for minors obtaining abortions. He points out that the law doesn’t contain any provisions that would protect minors from sexual predators. He also goes through research and testimony that demonstrates that high school-age minors and college-age adults have similar decision-making processes.

And then, as he wraps his decision up, he concludes that the state has an interest in promoting family cohesion and that the parental notification law is on solid constitutional ground.

“We were a little surprised,” says Janet Crepps, an attorney who represented Planned Parenthood in the case. She says her team is disappointed by the outcome.

Meanwhile, the state is welcoming the decision, even if they’re not in total agreement with the judge’s findings of fact, says assistant attorney general Margaret Paton-Walsh.

“He may not feel like this law is good policy, and he is entitled to that opinion as an individual,” says Paton-Walsh. “But he probably in this decision put those feelings aside and found that the law was nevertheless constitutional because it doesn’t violate key provisions of the Constitution in the way that Planned Parenthood alleged.”

In addition to keeping the parental notification law intact, the ruling also lifts some restrictions on it that had previously been in place. Most significantly, it allows abortion providers who knowingly break the parental notification law to be charged with a felony. Judge Suddock describes the maximum penalty of five years in prison and a $1,000 fine as “draconian,” but thought that the courts could handle these situations on a case-by-case basis. And at any rate, the state argued that – quote – “such statutes have never been enforced and are functionally irrelevant.”

Paton-Walsh says there’s still value in having a law like that on the books, even if the state doesn’t anticipate using it.

“You know, we don’t think anyone is going to be violating the law, really, but that doesn’t mean that the penalty has no meaning even if it’s not functional in the sense that we think we’re going to be prosecuting people,” says Paton-Walsh. “It can still have a symbolic importance.”

While criminal sanctions were approved, Judge Suddock did determine that a provision allowing civil sanctions was too broad. It opened abortion providers up to lawsuits if they broke part of the notification law without realizing it, and it didn’t cap the amount of damages.

“In the criminal context, if you don’t quite make the 48-hour waiting period – let’s say you miss it by a couple of minutes – it’s really unlikely that a prosecutor would find that there’s enough evidence to convict you beyond a reasonable doubt,” say Crepps. “But in the civil provision, if you miss the 48 hours by a couple of minutes, then you could be subject to unlimited civil damages.”

The superior court decision also strikes language requiring doctors to personally notify the parent involved. Now, their staff can do that work. And the decision clarifies an exception for medical emergencies. If the situation is so grave that a minor’s pregnancy is no longer viable, the doctor treating her doesn’t have to go through the 48-hour notification process.

Planned Parenthood of the Great Northwest has not yet decided whether it will try to appeal this decision to the state Supreme Court.