Testimony on HCR 3008 - Right of Privacy

To: House Judiciary Committee
From: Christopher Dodson, Executive Director and General Counsel
Subject: House Concurrent Resolution 3008
Date: January 23, 2001

Unfortunately, words do not always carry the meaning - and only the meaning - we intend them to convey. This is particularly true in the law. Consequently, we can sometimes get legislation with unintended and even disastrous consequences. That is the case with the language proposed in HCR 3008. Although, the language seems benign, it could very well lead to the unraveling of state laws designed to protect the most innocent among us, respect religious liberty, and strengthen families. This is not mere conjecture. We have to guide us the application of similar, and even identical, constitutional provisions from other states.

The experience of our neighbor, Montana, is revealing. Montana’s state constitution has a provision identical to that proposed in HCR 3008. Relying on that provision, courts in that state have:

* Struck down limitations on the use of state funds to pay for abortions in Medicaid. Jeannette R. v. Ellery, No. BDV-94-811 (Mont. Dist. Ct. May 22, 1995);

* Struck down the state’s law requiring parental notice or judicial waiver before a minor can obtain an abortion. Wicklund v. State, No.ADV-97-671 (Mont. Dist. Ct. Feb. 12, 1999);

* Struck down a state law requiring a 24-hour waiting period prior to an abortion. Planned Parenthood of Missoula v.State, No. BDV-95.722 (Mont. Dist. Ct. Mar. 12, 1999), appeal dismissed (Mont. Nov. 29, 1999);

* Struck down the state’s ban on partial-birth abortions. abortions. Intermountain Planned Parenthood v. State, No.BDV 97-477 (Mont. Dist. Ct. June 29, 1998); and, in what is the perhaps the most bizarre ruling,

* Struck down a state law requiring that only physician perform abortions. Armstrong v. State, 989 P.2d 364 (Mont. 1999).

More is expected. The Chief Justice of the Montana Supreme Court has stated that he thinks it is inevitable that a right to assisted suicide will be found to exist under the state’s constitutional right of privacy. A recent law review article traces how such a right would be found under the state’s right of privacy language -- language identical to that in HCR 3008. See, “The Last Best Place to Die,” 59 Mont. L. Rev. 301 (1998.)

Alaska provides another example of how a constitutional right of privacy could be applied. As in Montana, the constitutional right of privacy in Alaska prohibits laws requiring parental consent or judicial waiver before a minor may obtain an abortion (Planned Parenthood of Alaska, Inc. v. State, No. 3AN-97-6014 CI, Alaska Super. Ct. Feb. 25, 1998), restrictions on using state funds for abortions (Planned Parenthood of Alaska, Inc. v. Perdue, No. 3AN 98-7004, Alaska Super. Ct. Mar. 16, 1999), and bans on partial-birth abortions (Planned Parenthood of Alaska, Inc. v. State, No. 3AN-97-6019 CIV, Alaska Super. Ct. Mar. 13, 1998).

In addition, the Alaska Supreme Court - relying on the state constitutional right of privacy -struck down a conscience protection law protecting private hospitals that have policies against performing abortions. The court essentially found that the right of privacy trumps the moral or ethical policies of the private hospital so long as the hospital is somehow connected to the public interest. Valley Hosp. Assn. v. Mat-Su Coalition, 948 P.2d 963 (1997) [holding applies to a private hospital that receives government reimbursement, was constructed with government assistance, had received a certificate of need, or was the only hospital in the community.]

Although not identical , a similar California constitutional provision was the grounds for striking down requirements for parental consent or judicial waiver for minors (Am. Academy of Pediatrics v. Van de Kamp, 263 Cal Rptr. 46 (App.1. Dist. 1989)) and restrictions on use of state funds for abortion (Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779 (Cal. 1981.)) An attorney general’s opinion goes further, stating that the state’s constitutional right of privacy gives public schools the authority to release a minor from scheduled classes to obtain an abortion without informing a parent. 66 Ops. Atty. Gen. 244 (7-28-83.)

The Minnesota Constitution’s right of privacy, which does not even explicitly mention “privacy,” was found as grounds for striking down restrictions on use of state funds for abortion. Women of State v. Gomez, 542 NW2d 17 (1995.)

I wish I could say that these are all the occurrences where a right of privacy has struck down abortion laws, but there are more. Courts in fourteen states have ruled that their state constitution’s privacy clauses provide a greater right to abortion than is provided under Roe v. Wade and Casey v. Planned Parenthood. (AK, CA, CT, FL, ID, IL, MA, MN, MT, NJ, NM, OR,VT, WV). Typically, these courts have struck down popular and important laws such as restrictions on the use of taxpayer funds for abortion and parental notification or consent for minors.

According observers on both sides of the abortion debate, North Dakota has the most pro-life laws in the nation. While these laws do not provide a complete solution to the problem of abortion in our state and much more work needs to be done, they are an important step in the right direction. A constitutional amendment like HCR 3008 puts all those laws in jeopardy and the risks thwarting the will of the people of North Dakota .

We urge a DO NOT PASS on HCR 3008.