Abortion notification ballot initiative argued in court

CLARITY: Consent measure draws arguments over wording and penalties.

February 24, 2010 

Lawyers battled in state court Wednesday over the legality of an initiative headed toward the August ballot that would force doctors to notify a parent before a girl under 18 could have an abortion. The judge could rule in less than a month.

Attorney Jeff Feldman, representing Planned Parenthood of Alaska, argued the initiative fails to make clear to voters it could land doctors in jail for five years if they don't track down a parent, verify their identification, and personally tell them of the procedure.

A voter who read the ballot summary approved by the lieutenant governor would never know that, Feldman said -- or about the lengths that physicians would need to go to try and reach a parent.

The ballot initiative says if a doctor can't reach a parent, then he or she is required to "continue to initiate the call, in not less than two-hour increments, for not less than five attempts in a 24-hour period."

Kevin Clarkson, lawyer for the initiative sponsors, including former Lt. Gov. Loren Leman, said voters would be able to assume there would be consequences for breaking the law without setting out consequences in the ballot summary.

The summary explains the physician would have a defense, Clarkson said, which lets voters know it's the doctor who faces prosecution. He said doctors would only be prosecuted if they were acting in bad faith and knowingly broke the law by performing an abortion without the notification.

Clarkson argued Feldman was overstating the penalties, and that five years in jail or a $1,000 fine was the maximum possible. It could be a lot less than that, he said.

"Basically a doctor who violates this law could get a $10 fine," Clarkson argued to Anchorage Superior Court Judge Frank Pfiffner.

Feldman responded that wasn't realistic for a "felony exposure."

"I personally have never represented a convicted felon who got a $10 fine," Feldman said.

If physicians tell the parent in person, they'd need to obtain government-issued identification along with "additional documentation of the person's relationship to the minor." That could include a birth certificate or court order of adoption.

Notification over the phone requires the doctor "attempting to verify through a review of published telephone directories ... and asking questions of the person," that they are the parent or guardian.

The lawyers also argued over what Feldman maintained were several other flaws in the drafting of the initiative that combined to make it vague and misleading to voters. Clarkson said voters will be clear on the core issue: whether Alaska law should require parental notification of abortion for girls under 18.

Clarkson and an attorney representing the lieutenant governor, who also defended the initiative, asked the judge to rule by March 17. That's to allow enough time for an appeal to the Alaska Supreme Court before ballots are printed June 3.

The sponsors have submitted what they say are the required number of signatures to get the measure on the Aug. 24 ballot. The state is verifying the signatures.

Find Sean Cockerham online at adn.com/contact/scockerham or call him at 257-4344.

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