Parental notification before abortion ruled constitutional by Alaska judge
10/10/2012 6:48 AM
10/10/2012 6:59 AM
An Anchorage Superior Court judge has upheld as constitutional a state law requiring parents to be notified before a teen's abortion. But the issue may not be resolved. Both sides expect it will wind up before the state Supreme Court.
Judge John Suddock, in a 65-page decision issued Monday, said the legal requirement does not violate a teenager's right to privacy. Nor, the judge ruled, does it violate provisions to treat people equally even though a pregnant teen generally cannot receive an abortion without her parents' knowing, but could get prenatal care.
The law applies to Alaska teenagers age 17 and younger. It says abortion providers must generally inform parents before performing an abortion. Girls can get around the requirement by going to a judge or providing the doctor with notarized statements attesting to abuse at home. Pro-choice advocates say that's a lot to ask of a girl in crisis.
The law came about through an August 2010 voter initiative that was fiercely contested. Most aspects of it took effect that December.
Planned Parenthood of the Great Northwest and two doctors sued to block the law, arguing that it could delay or prevent vulnerable girls from receiving an abortion because of the legal hoops and complicated mechanisms. The state argued to keep the law in place, saying that parents should be involved in such an important decision.
The issues were aired during a three-week trial in February and March.
"We said, 'Have there been girls put into difficult situations because of this law?'" recalled Margaret Paton Walsh, an assistant attorney general who was part of the state's trial team defending the law. "And the answer to that question was 'Not really.' ... The girls who wanted abortions have gotten abortions."
But not always easily, witnesses on the other side testified.
The number of teen abortions in Alaska dropped significantly in 2011, the first full year after the law was put into place. That year, 87 Alaska girls age 17 and under received abortions, down 23 percent from 113 in 2010, which was a drop from 125 in 2009, according to the state Bureau of Vital Statistics.
Both sides agree one year is too short a time, and that the numbers alone provide too little information, to determine whether the parental notification requirement played a role.
Teen pregnancy also is on the decline because of teens delaying sex and more effective birth control, including injections that last three months, said Clover Simon, Planned Parenthood of the Great Northwest spokeswoman.
Most teens, especially young ones, involved their parents in their abortion decision even before the law took hold, she said. Planned Parenthood is Alaska's main abortion provider, and parents typically accompany daughters to its clinics. Even if the young woman shows up without parents, they often already know, she said.
"But there are a small number of teens who have tenuous circumstances at home and don't enjoy the same communication that other teens have with their parents and for whatever reason they are not able to talk to their parents and they choose to go through judicial bypass," Simon said.
Besides upholding the overall law, Suddock struck some aspects, while reinstating others -- including the possibility of criminal penalties -- that had been blocked since a preliminary ruling in December 2010.
Suddock ruled that:
Doctors and clinics who perform abortions without ensuring parents are notified can face criminal prosecution. That element had been on hold. But he struck a provision allowing civil damages against providers.
Other members of clinic staffs can notify parents -- doctors don't have to do it themselves, even though the voter initiative required it. One witness testified that the process can take an hour or longer.
Parents who accompany a minor to the clinic must show proof of the relationship, such as a birth certificate, a requirement that also had been on hold.
In the 14 months that the law was in effect before the February trial, just nine minors went to court to bypass the notification requirement, Suddock said in his order. Eight petitions were granted and one teen withdrew her request.
Teens went to court because of "parents' strong religious beliefs, potential ostracism by a religious community, and a premonition of emotional abuse, ejection from the family home, or disinheritance," Suddock wrote, summarizing the testimony of the lawyer who represented the girls.
He found that the court process worked well.
An on-call magistrate is available any day of the year. While petition forms are hard to find on the Alaska Court System Web site, a Google search of "Alaska pregnant teen" goes to Planned Parenthood's Web site, which includes links, he wrote. Teens can fax, mail, or e-mail their petition, or bring it person. A lawyer with the Office of Public Advocacy will represent them. Hearings can be over the phone and all occurred within 48 hours of the petition being filed. Judges ruled immediately.
That's still a complicated, intimidating and stressful experience for teens, Simon said.
And even if parents are involved, the law's requirements can be a challenge in Alaska, according to situations recounted by Suddock.
One teenager from a village was approaching the end of her first trimester when she made an appointment for an abortion in Fairbanks. Alaska women seeking an elective abortion after that almost always must go to Seattle. She said her parents approved but were snowmachining in another village. Planned Parenthood's clinic manager in Fairbanks faxed a form to the other village, and the mother signed it in front of a notary.
Another girl, also days away from her second trimester, didn't want to tell her mother or go to court, and she didn't know her father's phone number. She eventually tracked it down, and the clinic was able to notify him 48 hours before her appointment -- just in time to comply with the law.
Medically speaking, abortions are safer than pregnancy, and there's no evidence of any medical benefit from parents being notified, Suddock wrote. Doctors who perform abortions testified that teen patients are able to give good medical histories.
In a few cases, the law may bring about more family communication, as evidenced by the girl who got in touch with her father, the judge said.
The new law "has a small but real upside; a small but real downside; an enormous symbolic significance to the adopting electorate; and the implicit approval of the Alaska Supreme Court," Suddock wrote.
Back in 2007, the state Supreme Court, in a 3-2 decision struck down a law requiring parents to consent to a teen's abortion, but left room for a law requiring only notification.
Still, both Simon and Paton Walsh said they expected the ruling to be appealed. Simon said a firm decision on that hadn't yet been made.
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