Legislature(2001 - 2002)
05/10/2002 01:58 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SB 364 - MEDICAID PAYMENTS FOR ABORTIONS Number 1819 CHAIR ROKEBERG announced that the last order of business would be SENATE BILL NO. 364, "An Act relating to medical services under the state Medicaid program." Number 1839 KAREN VOSBURGH, Executive Director, Alaska Right to Life, Inc., testified via teleconference in support of SB 364. She said: This is a very good bill, and it is necessary to restrict the Medicaid funding to cover ... only those abortions that are medically necessary, instead of using abortion as form of birth control, which is - as everybody knows here, I'm sure - that about 95 percent of all abortions are for birth control only. So, I'm not only speaking for myself and for the Right to Life board, but there are almost 60,000 in our Right to Life database, too, that are right behind me on this. So I just want you to know that there are -- and there's more than that, this is just only in our database, there are many more people that are pro-life that aren't in our database. So people, for the most part, do not want abortion for any reason such as what was laid down - you know, ... the term "health of the mother" when it was first brought down with Roe v. Wade and Doe v. Bolton. You know, everybody knows that, too, that the "health of the mother" refers to physical, or emotional, or psychological, a woman's age, familial, social, or economic reasons, and so this cannot be deemed "medically necessary." "Medically necessary" is what this bill says it is, and I think it's [a] good bill, so please do hear it and pass it out. Number 1974 SENATOR DONNY OLSON, Alaska State Legislature, testified in support of SB 364. After noting that he has been licensed as a medical doctor since 1984 and had served on the State Medical Board for six years, he said that SB 364 does not address the issue of whether abortion is permitted; instead, it addresses the issue of which abortions will be paid for with state funding. He indicated that he, along with others opposed to SB 364, is opposed to having his tax dollars used for a procedure that he feels is inappropriate. REPRESENTATIVE BERKOWITZ asked: "Would you think that pacifists shouldn't pay federal income tax because part of the money goes to the Department of Defense? Would you think that atheists shouldn't use money if, say, the faith-based initiative goes through?" SENATOR OLSON opined that issues involving pacifists and atheists are far different than an issue that involves a therapeutic procedure which requires a physician. CHAIR ROKEBERG asked Senator Olson to comment on the issue of whether to include situations involving fetal anomalies and nonviable fetuses in the category of an allowable reason to use Medicaid funding for an abortion. SENATOR OLSON remarked that in addition to the serious types of cases that were given as examples in previous testimony, the term fetal anomaly can also be applied to instances in which a fetus simply has an extra digit. He suggested that if such a concept were to be included in SB 364, a more specific term should be used. CHAIR ROKEBERG suggested the language, "abort a fetus that would not survive until live birth". SENATOR OLSON said that the problem with that language is that it is very difficult for a physician to determine whether "a fetus will survive a live birth." TAPE 02-63, SIDE B Number 2370 SENATOR OLSON, in response to a question, said that if a fetus dies intrautero (ph), normally it results in a stillbirth. In response to another question, he indicated, however, that that does not occur all the time. He reiterated that it is very difficult to determine whether a fetus will make it to term. He noted that if an obstetrician makes such a determination, he/she will be doing so according to his/her "best opinion." REPRESENTATIVE JAMES relayed that when her own fetus died, the doctor informed her that the fetus was no longer viable and recommended that it would be better for her to "let it come naturally." She said that while that may not be the "right way to go" in all situations, for her it proved to be the right choice and she suffered no ill effects to her health for having gone that route. She indicated that such a decision has to be between the individual woman and her physician. CHAIR ROKEBERG asked Senator Olson whether the language in SB 364 would hinder him in his medical practice or cause him to alter his medical decisions regarding situations in which an abortion might be an appropriate procedure. SENATOR OLSON said he does not have any problem with the language in SB 364. REPRESENTATIVE BERKOWITZ asked Senator Olson how he would define "seriously endanger the physical health of the woman". SENATOR OLSON said, "I would say that if ... a lady's health obviously - physical constitution - was in some way seriously, in a quite severe manner, was jeopardized." REPRESENTATIVE BERKOWITZ asked, "Do you think that would be subjective from doctor to doctor?" SENATOR OLSON said: "Oh, for sure. And I think that's one of the major reasons for this bill, here, is that the subjectivity is what has incensed a number of people." In response to further questions, he opined that removing the word "seriously" would cause the language to become vague, and that legislation on this issue needs to have language that gets away from a "vague and loose interpretation." REPRESENTATIVE BERKOWITZ opined that as currently written, the language in SB 364 is not clear or instructive. REPRESENTATIVE COGHILL reminded members that the issue before the committee revolves around public funding for abortions. Number 1648 REPRESENTATIVE FRED DYSON, Alaska State Legislature, testified in support of SB 364. He relayed that with regard to abortion, the principal issue for many people is the issue of human rights, adding that in the act of an abortion, a human life is at stake. He opined that when the patient is a pregnant woman, ethical doctors realize that they have two patients and must consider the well being of both. On the issue raised in previous testimony that nothing can be determined with 100 percent certainty, he opined that in cases where someone is not absolutely sure, he/she should choose life. He then recounted some cases of failed abortions. REPRESENTATIVE DYSON opined that the committee should leave the word "seriously" in SB 364, indicating that it will ensure that abortions paid for with state funds are not performed for trivial reasons. He surmised that people intent upon having an abortion will be able to find some other method of paying for it. He said that according to his interpretation of every vote or poll taken on this issue, people do not favor public funding of "nonessential abortions." He said: What you have here before you is a very good piece of legislation [and] I encourage you to let it stand as it is; it is exactly the will of the people, it protects human rights, and [it] avoids us being in a position of financing the termination of the lives of children whose only sin is that their presence is inconvenient and untimely. REPRESENTATIVE DYSON, in response to a question regarding nonviable fetuses, indicated that an abortion should only be performed in those circumstances where it is absolutely certain that the fetus is dead. REPRESENTATIVE JAMES reiterated that sometimes it is better to let a dead fetus come out naturally, rather than performing a medical procedure. In response to questions, she remarked that "medically necessary" as defined by "seriously endanger" is something that will be determined by the doctors in those situations, and that those determinations should not be questioned; she acknowledged that different doctors could come to different conclusions, and noted that a woman has the right to go see a different doctor for a second opinion. Number 1035 CHAIR ROKEBERG turned to language on page 2, lines 5 and 6: "the medication required to treat the illness would be highly dangerous to the fetus". He asked: "if, in fact, you're endeavoring to protect the fetus, why do we have to have it [be] "highly dangerous"? Why not just "dangerous"? REPRESENTATIVE DYSON suggested using the term "slightly dangerous". CHAIR ROKEBERG opined that "slightly" poses the same problem as "highly" in that they and some of the other words used in SB 364 are setting subjective standards. "We're raising the bar with a subjective standard," he warned, adding, "I think it's very poor legal drafting." He again suggested that just "dangerous to the fetus" is sufficient. REPRESENTATIVE DYSON said he agrees with Chair Rokeberg on that point. CHAIR ROKEBERG, turning to language in [subsection] (b), he noted that the word "serious" is already used as a qualifier on page 1, line 12; therefore, including the terms "significantly" and "seriously" in [subparagraphs] (A) and (B), respectively, would be redundant and would raise the issue of subjectivity. REPRESENTATIVE JAMES remarked that every single possible set of specific conditions cannot be listed in statute, adding that some measure has to be set, after which it will be up to the individual woman and her physician to make the determination. She also remarked that the goal of SB 364 is to eliminate [public funding for] unnecessary abortions, adding that "when you try to determine what's necessary, you have to have a bar somewhere, [and] I don't know that this gets us there, but it's better than what we have." CHAIR ROKEBERG opined that the legislature has the duty of determining what constitutes "medically necessary" and must do so by defining it with language that is clear rather than subjective. He then referred to the words "significantly" on page 1, line 14; "seriously" on page 2, line 1; and "highly" on page 2, line 5. He asked the drafter whether using those words as qualifiers was intended to raise the bar, and what his interpretation of that language is. Number 0813 GEORGE UTERMOHLE, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, acknowledged that using those words does have the effect of raising the bar. CHAIR ROKEBERG turned to the word "serious" as it is used on page 1, line 12. He asked, "It sets up each of the [paragraphs] underneath it as having to be of a serious nature, does it not?" MR. UTERMOHLE said, "The term "serious" modifies "serious adverse physical condition" and "serious psychological illness". CHAIR ROKEBERG surmised, then, that statutorily, the bill speaks of a "serious adverse physical condition" and a "serious psychological illness" before "we even add the other provisions of the bill to the interpretation." MR. UTERMOHLE said, "Yes, Mr. Chairman, that is your starting point." CHAIR ROKEBERG asked Mr. Utermohle what would be the impact of removing "seriously" from page 2, line 1. MR. UTERMOHLE said that doing so would "reduce the restrictions on [a physician's] determination as to what endangers the health of a woman." In response to a question, he indicated that the same could be said regarding the removal of "highly" from page 2, line 5. REPRESENTATIVE BERKOWITZ asked, "Could you in any way quantify what 'seriously endanger' or 'highly dangerous', what the distinction is, or ... if there's a numerical quantification that would apply?" MR. UTERMOHLE said, "Most certainly not; we're talking about subjective terms here." REPRESENTATIVE BERKOWITZ asked, "Is there a distinction between 'seriously endanger' on page 2, line 1, and 'highly dangerous' on page 2, lines 5 and 6?" MR. UTERMOHLE said, "Those relate to two different standards, one related to 'seriously endanger' as opposed to 'highly dangerous'." Number 0579 REPRESENTATIVE BERKOWITZ asked: "Which is higher? Or which is more serious?" MR. UTERMOHLE said, "They're applied to different contexts and rely upon the expertise of the doctor to apply those terms." REPRESENTATIVE BERKOWITZ said, "So you couldn't say, if you were to do a risk assessment, ... that 'highly dangerous' is aggravated above 'seriously endanger', or the other way around?" MR. UTERMOHLE said, "No, I could not." REPRESENTATIVE BERKOWITZ observed that [paragraphs] (1)(B) and (2) (B) are not parallel in that paragraph (1)(B) uses the term "seriously endanger", whereas paragraph (2)(B) refers only to "endangered". REPRESENTATIVE DYSON said that he has no objection to adding the word "seriously" to paragraph (2)(B) on line 7. In response to a question, he agreed that he feels that the language currently in SB 364 gives physicians enough latitude to make determinations based on their independent judgment. He surmised that if a physician makes the determination, in a particular case, that the woman is better served by having an abortion, he/she will probably go ahead and perform that abortion; the question then becomes one of "who gets billed" for those procedures. CHAIR ROKEBERG, after noting that no one else wished to testify, closed the public hearing on SB 364. Number 0139 CHAIR ROKEBERG made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 1, line 12, through page 2, line 8: Delete all material and insert: "physician that the abortion is medically necessary to (1) treat a serious (A) adverse physical condition of a pregnant woman that (i) either is caused by the pregnancy or would be significantly aggravated by continuation of the pregnancy; and (ii) would seriously endanger the physical health of the woman if the pregnancy were not terminated by an abortion; or (B) psychological illness of a pregnant woman who requires medication for treatment of the illness if (i) the medication required to treat the illness would be highly dangerous to the fetus; and (ii) the health of the woman would be endangered if the medication was not taken during the pregnancy; or (2) abort a fetus that would not survive until live birth." Page 2, line 13, following "(3)": Insert ""live birth" has the meaning given in AS 18.50.950; (4)" Number 0138 REPRESENTATIVE JAMES objected. CHAIR ROKEBERG remarked that Amendment 1 basically just adds the phrase "abort a fetus that would not survive until live birth". REPRESENTATIVE OGAN surmised that making such a determination would be difficult to do, and remarked that he finds the addition of that term objectionable. REPRESENTATIVE JAMES said that although there may be some circumstances in which aborting a fetus that would not survive until live birth would be appropriate, she objects to paying for such a procedure with state funds. TAPE 02-64, SIDE A Number 0072 A roll call vote was taken. Representatives Berkowitz, Kookesh, James, Ogan, Coghill, and James voted against Amendment 1. Representative Rokeberg abstained from voting. Therefore, Amendment 1 failed by a vote of 0-6. Number 0104 REPRESENTATIVE COGHILL moved to report SB 364 out of committee with individual recommendations and the accompanying fiscal note. Number 0124 REPRESENTATIVE BERKOWITZ objected. He said, "This bill is severely constitutionally flawed, for the reasons that are outlined in the ... [State Dept. of Health & Social Services v. Planned Parenthood of Alaska, et al. (07/27/2001) sp-5443] case, and also because, based on the testimony I've heard here today, it's clearly vague beyond any sort of (indisc. - voice faded away). Number 0190 A roll call vote was taken. Representatives James, Ogan, Coghill, Meyer, and Rokeberg voted to report the bill from committee. Representatives Kookesh and Berkowitz voted against it. Therefore, SB 364 was reported out of the House Judiciary Standing Committee by a vote of 5-2.
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