Case: Planned Parenthood of Alaska v. Campbell

This is a state court case challenging a ballot initiative in the state of Alaska. In 1997, the Alaska legislature passed the Parental Consent Act (PCA), a law requiring unemancipated minor patients to first obtain parental consent or judicial authorization before seeking abortions. A 10-year legal battle culminated in the Alaska Supreme Court’s declaration that the PCA unconstitutionally violated the patient’s right to privacy, but that the state constitution could permit a parental notification scheme.

On May 6, 2009, anti-abortion activists in Alaska submitted an application for a ballot initiative (the “Parental Involvement Initiative” or “PNI”) that would require minors seeking abortions to satisfy one of the following requirements beforehand: notify one parent and wait 48 hours, obtain written consent from one parent, or obtain judicial authorization. The PNI was designed to amend the PCA, not serve as a stand-alone law. On July 2, 2009, the lieutenant governor certified the sponsors' application,  determining that the proposed bill was in the required form, that the application was substantially in the required form, and that there were a sufficient number of qualified sponsors.  The lieutenant governor adopted a summary, and the Department of Elections prepared petition booklets, with that summary, to be circulated for signature-gathering.

On July 31, 2009, Planned Parenthood of Alaska and one of its officers filed suit in the Superior Court against Craig Campbell, who by then became Alaska’s lieutenant governor. Plaintiffs requested declaratory and injunctive relief. Represented by the Center for Reproductive Freedom, Planned Parenthood Federation of America, Planned Parenthood of the Great Northwest, and private counsel, plaintiffs alleged violations of Alaska statutory and constitutional law. Plaintiffs argued that: (1) the lieutenant governor should not have certified the application because it impermissibly prescribed court rules; (2) the PNI would mislead voters; and (3) the lieutenant governor’s summary was not accurate and impartial as required by Alaska law.

The PNI sponsors intervened as parties to the suit in September 2009. Plaintiffs filed for summary judgment, and the lieutenant governor and sponsors filed oppositions to the motion as well as cross-motions for summary judgment. On March 12, 2010, sponsors submitted their petition to the lieutenant governor with more than the requisite number of signatures. He determined the petition met necessary requirements and would appear on the ballot. 

The trial court granted summary judgment in part to plaintiffs and in part to the lieutenant governor and the PNI’s sponsors. In his March 16, 2010 order, Judge Frank Pfiffner concluded that the PNI’s validation of the PCA was not clearly unconstitutional and voters could understand the PNI. However, he also found that it unconstitutionally prescribed a limited number of court rules but that those offending prescriptions could be severed from the rest of the PNI. The summary the lieutenant governor certified would require correction before publication on the ballot and election pamphlet. Judge Pfiffner found that omitting three facts rendered the summary inaccurate and not impartial. First, the PNI would restrict current law, which did not require minors to notify their parents before obtaining abortions. Second, the PNI modifies and revalidates the PCA, which the state’s highest court previously declared unconstitutional because the state could not show it was the least restrictive means of meeting the state’s compelling interest in protecting the health of the minor and fostering family involvement in deciding whether to end a pregnancy. Third, adopting the PNI would implicate other laws making it a felony with imprisonment for up to five years for a physician to knowingly violate the statutory notification provisions. Judge Pfiffner ruled the initiative could be placed on the ballot if those facts were included in a revised summary.

All three parties appealed the order. Plaintiffs appealed the conclusion the summary could be corrected and included on the ballot without recirculating a revised petition for signatures. The lieutenant governor and sponsors cross-appealed the superior court’s finding that the summary was neither accurate nor impartial.

The Alaska Supreme Court heard oral argument on May 20, 2010, and entered an order two weeks later on June 2, 2010 affirming the trial court. Applying a deferential standard of review, the Court found that the trial court correctly identified the three omissions that rendered the petition summary inaccurate. The provisions omitted from the initial summary were not mere details, but information that would “give the elector serious grounds for reflection” and therefore “must be disclosed.” The Court explained that for any initiative regulating conduct and creating criminal penalties for violation of its code of conduct, its petition and ballot summaries must, as a matter of law, contain descriptions of the conduct and penalties. Addressing plaintiffs’ concern, the court concluded that the lieutenant governor could place the initiative on the ballot with a corrected summary including enforcement provisions without recirculating a petition. The Alaska Supreme Court articulated a four-factor test for permitting initiatives to go forward after having circulated petitions with defective summaries: the nature and magnitude of the misleading statement or omission; the likelihood and extent of petition-signer inadvertence, the hardship to initiative sponsors from invalidating signatures, and the hardship to initiative opponents from permitting the initiative to go forward. The Alaska Supreme Court reasoned that the petition summary was not gravely misleading by omission, and such defects were likely to cause minimal petition-signer inadvertence. The omissions were found not to substantially misrepresent the nature of the PNI. The court thought defendant-sponsors would face higher hardship since they expended a significant amount of time and resources in gathering signatures, but discerned little hardship to plaintiff-opponents from adding the corrected summary to the ballot. Balancing the people’s fundamental interests in exercising their constitutional right to initiate legislation and safeguards designed to ensure informed petition-signing and informed lawmaking, the Court concluded that the PNI could be placed without requiring recirculation. 232 P.3d 725.

After Alaska voters approved the measure in August, the PNI was scheduled to take effect in mid-December. A subsequent challenge partially enjoined the law.

This case is now closed.