Legislature(2003 - 2004)
05/06/2004 09:00 AM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 30(JUD) am
An Act relating to information and services available
to pregnant women and other persons; and ensuring
informed consent before an abortion may be performed,
except in cases of medical emergency.
STACEY KRALY, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,
explained the differences between the House Judiciary
version of the bill and work draft #23-LS0193\Y, Mischel,
4/29/04 version.
She noted that when the bill arrived in the House Judiciary
Committee, an opinion was requested from the Attorney
General's office regarding the constitutionality of the
provisions. As a result, recommendations were made to that
Committee and some amendments were submitted based on that
review, which were all adopted.
REPRESENTATIVE FRED DYSON, SPONSOR, did not know if the Y
version would meet with the Department of Law's approval.
He noted the conditions contained within the committee
substitute. The Department of Health & Social Services does
not want the State Medical Board to have obstetricians
determine the information placed on the website. The
Department believes that they can handle that from within.
Ms. Kraly commented that the recommendation during the House
Judiciary proceedings was that the provisions in the website
would be information developed in a medically accurate
manner. She stressed that it is important that the
information is not politically motivated but rather
medically accurate. The State Medical Board is not
interested in performing that duty. She reiterated that the
information should be medically accurate.
Representative Stoltze asked if the Attorney General was
interested in being involved in this matter. Ms. Kraly
advised that the Attorney General is familiar with the
concern.
Senator Dyson addressed issue #2: Language inserted in the
House Judiciary Committee appears to establish the criteria
transmitted to the woman, which is based on a physician's
standard. In the Y version, the language is better fit for
the patient standard and information. Ms. Kraly responded
that the Judiciary version creates two provisions by which
informed consent may be imparted. One provides information
through the State maintained web site. The second mechanism
in the G version would be to create a mechanism by which a
physician could choose not to use the website information,
but rather impart information, which the doctor "reasonably"
believes is necessary for the patient to make an informed
choice. That language is on Page 6, Lines 24-27, in the G
version.
Representative Croft asked if that reference was made in the
Y version. Ms. Kraly did not know, as she had just received
that copy. She thought that the committee substitute
removed the language.
Ms. Kraly noted that the State of Alaska has an informed
consent provision under Title 9, in which the standard
creates a "reasonable patient standard". General case law
dealing with informed consent issues in Alaska has been a
reasonable patient standard not a reasonable physician
standard. That being said, the changes recommended by
Senator Dyson, make sense that the body of law is consistent
in the sense of not having conflicting provisions in the
law. She thought that the Y version section should be
amended to make it more clear that the standard is for a
reasonable patient standard. Constitutionally, it might not
be a problem, but that the language should be consistent.
Senator Dyson voiced concern when dealing with a doctor
doing the procedure. There is a pattern, where a caring
doctor, could have pressure to minimize the issues regarding
termination. He thought that more complete information
would allow women to make better decisions. He understood
that the Y version would leave the doctors the alternatives;
however, the intention of the legislation is to use the
Department's information, which would be immune from legal
action.
Senator Dyson added that the real issue was whether or not
the 24-hour waiting period would be problematic under the
Alaska Constitution. Ms. Kraly responded that the issue of
the 24-hour waiting period with respect to the informed
consent provision would be a difficult question. The Alaska
Constitution provides greater protections under the right to
privacy and equal protection than the federal constitution.
The Alaska Supreme Court has interpreted provisions relating
to the restrictions of reproductive rights and consistently
upheld that it is a fundamental right and in order to
restrict it, there must be a fundamental constricting State
interest. It is the opinion of the Department of Law that
the 24-hour waiting period would be viewed as an undue
burden under the right to choose. It makes the bill less
constitutionally sound than if the provision was not in it.
She reiterated that in the opinion of the Department of Law,
the 24-hour provision would be problematic.
Senator Dyson pointed out that many states have fought this
battle. He understood that the Department of Law might get
challenged.
Co-Chair Williams asked the anticipated cost of such a
challenge. Ms. Kraly agreed that there would be a challenge
and that the bill would be more defensible without the 24-
hour waiting period. She warned that litigation is
expensive and time consuming and that it could cost hundreds
of thousands of dollars to litigate these issues. The
appeal process could take a few years to get through. It
will be a timely and costly venture if it should pass.
Co-Chair Williams asked clarification that if the 24-hour
rule were left in, the legislation would most likely be
challenged. Ms. Kraly predicted that no matter what version
passes, it will be challenged on some level. If the 24-hour
provision was removed, there would be one less issue to
litigate.
Senator Dyson pointed out that presently, in law, there
exists a "severability concept", which does not negate the
entire idea.
Representative Croft pointed out how verbally careful the
attorney general's office was being. If the bill passes,
the Department of Law will be defending it and if they truly
believe that it is not constitutional, it would be used in
that case. He pointed out that Ms. Kraly was very careful
not to mention things during the Committee meeting that
could be used in defending the lawsuit later. He added that
the testimony sounded conditional because of the public
nature of the situation.
Senator Dyson maintained that the Y version does not raise
constitutional issues except for the 24-hour rule.
Vice Chair Meyer MOVED to ADOPT version #23-LS0193\Y,
Mischel, 4/29/04. There being NO OBJECTION, it was adopted.
Representative Croft MOVED a conceptual amendment removing
"at least 24 hours" on Page 5, Line 16 and on Page 6, Lines
11 & 12. Vice Chair Meyer OBJECTED for the purpose of
discussion. He invited the sponsor's opinion.
Senator Dyson stated that the bill is of great value even
without the 24-hour rule. He stated that he would prefer to
keep the language in the bill but would hold no grudges, as
he wanted to see the bill pass from Committee. He added
that he thought that it could survive a court challenge.
A roll call vote was taken on the motion.
IN FAVOR: Croft, Moses
OPPOSED: Stoltze, Chenault, Fate, Foster, Hawker,
Meyer, Williams
Representative Joule and Co-Chair Harris were not present
for the vote.
The MOTION FAILED (2-7).
Representative Foster MOVED to report HCS CS SB 30 (FIN) out
of Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
HCS CS SB 30(FIN) was reported out of Committee with "no
recommendation" and with fiscal notes #3 and #4 by the
Department of Health & Social Services.
TAPE HFC 04 - 108, Side B
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