Legislature(2003 - 2004)

05/06/2004 09:00 AM House FIN

Audio Topic
* first hearing in first committee of referral
+ 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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