Legislature(2003 - 2004)

03/30/2004 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 30 - ABORTION: INFORMED CONSENT; INFORMATION                                                                               
                                                                                                                                
[Contains  discussion  of  an  amendment  that  would  conform  a                                                               
provision of  SB 30 to a  provision of HB 472;  contains adoption                                                               
of what would become known as  HCR 36 for the purpose of changing                                                               
the title of SB 30.]                                                                                                            
                                                                                                                                
Number 0022                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be  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."   [Before the                                                               
committee was HCS CSSB 30(HES).]                                                                                                
                                                                                                                                
CHAIR  McGUIRE  indicated that  members'  packets  now include  a                                                               
proposed House committee substitute (HCS)  for SB 30, Version 23-                                                               
LS0193\O, Mischel, 3/22/04, and a  legal analysis by the attorney                                                               
general dated March 30, 2004, regarding that proposed HCS.                                                                      
                                                                                                                                
Number 0100                                                                                                                     
                                                                                                                                
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary Standing  Committee, Alaska State  Legislature, offered                                                               
to explain the changes made by the proposed HCS.                                                                                
                                                                                                                                
Number 0167                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM  moved to adopt  the proposed HCS for  SB 30,                                                               
Version 23-LS0193\O, Mischel, 3/22/04, as  the work draft.  There                                                               
being no objection, Version O was before the committee.                                                                         
                                                                                                                                
MS. TONDINI  relayed that  Version O was  created in  response to                                                               
the  attorney   general's  March  18  legal   analysis  outlining                                                               
numerous areas  in a prior iteration  of SB 30 that  needed to be                                                               
addressed.   One  issue that  was of  concern was  that the  bill                                                               
should  contain language  requiring that  the information  in the                                                               
pamphlet be  "unbiased information that is  reviewed and approved                                                               
for   medical   accuracy   and  appropriateness   by   recognized                                                               
obstetrics   and   gynecological   specialists."     Section   1,                                                               
paragraphs  (4)-(5), and  Section 2,  subsection (a),  paragraphs                                                               
(6)-(9), of Version  O now contain that  language.  Additionally,                                                               
Version O now  stipulates that the aforementioned  review will be                                                               
performed by the State Medical Board.                                                                                           
                                                                                                                                
MS.  TONDINI  relayed that  another  issue  of concern  was  that                                                               
should the aforementioned  change be made to  Section 2, although                                                               
changes  made regarding  information  on gestational  development                                                               
and other  information will be  more legally defensible,  it will                                                               
not  eliminate the  possibility of  a challenge,  on privacy  and                                                               
equal protection grounds, that the  material is intended to shock                                                               
rather than inform.  Also of  concern was that the definitions in                                                               
Section  2 should  be  medically accurate,  and  the most  recent                                                               
legal analysis  still offers this  as a concern.   The definition                                                               
section  of Version  O  is  on page  4,  lines  9-16, Section  2,                                                               
subsection    (c)(1)-(4),   and    provides   definitions    for:                                                               
"abortion",  "fertilization",  "gestational   age",  and  "unborn                                                               
child".  She mentioned that  she is providing members with copies                                                               
of  what  she   said  she  believes  to   be  medically  accurate                                                               
definitions of  the aforementioned  terms that she  gathered from                                                               
several medical web sites and medical dictionaries.                                                                             
                                                                                                                                
MS.  TONDINI noted  that another  issue of  concern was  that the                                                               
bill  should contain  language specifying  that there  will be  a                                                               
disclaimer  on   the  web  site  regarding   the  graphic  and/or                                                               
sensitive nature  of the information  contained on the  web site.                                                               
She  said  that  such  language is  now  included  in  subsection                                                               
(a)(10)  of Section  2, on  page 10,  lines 5-6.   Still  another                                                               
issue  of concern  was that  the bill  should stipulate  that the                                                               
pamphlet will only  include those providers who  consent to being                                                               
included;  that language  can be  found on  page 2,  line 30,  of                                                               
Version  O.    Additionally  of concern  was  that  the  findings                                                               
section of a  prior iteration the bill referred  to immunity, but                                                               
the text  in Section 4  of that prior  iteration did not  use the                                                               
term  immunity  and  instead   simply  provided  for  affirmative                                                               
defenses.  This inconsistency has  been addressed in Version O by                                                               
removing  "immunity" from  the findings  section, Section  1, and                                                               
keeping  the  provisions  in   Section  4  regarding  affirmative                                                               
defenses.                                                                                                                       
                                                                                                                                
Number 0481                                                                                                                     
                                                                                                                                
MS.  TONDINI  relayed that  another  issue  of concern  was  that                                                               
requiring  a 24-hour  waiting period  could raise  constitutional                                                               
issues;  therefore, that  requirement  has  been eliminated  from                                                               
Version O, specifically from Section  5, subsection (c).  A final                                                               
issue of  concern expressed  in the  attorney general's  March 18                                                               
legal analysis is  that under this legislation,  abortion will be                                                               
the  only medical  procedure that  has its  own informed  consent                                                               
requirements set out in statute;  Version O does not change this,                                                               
so equal protection issues may still exist.                                                                                     
                                                                                                                                
MS.  TONDINI noted  that the  attorney general's  March 18  legal                                                               
analysis  also raised  some technical  points.   One, that  there                                                               
should be a medically accurate  definition of abortion; Version O                                                               
-  page 4,  line  10 -  says  that the  term  "abortion" has  the                                                               
meaning  given in  AS  18.16.090.   Two,  that  the inclusion  of                                                               
[child  care] in  Section 2,  subsection  (a)(3), is  misleading;                                                               
Version  O   deletes  that  reference.     Three,  that  although                                                               
inclusion  of  exceptions  for rape  and  incest  are  necessary,                                                               
neither rape nor incest is  legally defined in statute; Version O                                                               
now contains  reference - in Section  5, subsection (d) -  to the                                                               
statutes pertaining to those crimes.                                                                                            
                                                                                                                                
MS. TONDINI  continued.  Four,  that the language  requiring that                                                               
information  on alcohol  use  and drug  use  during pregnancy  be                                                               
provided did  not specify whether the  information should pertain                                                               
to legal  drugs or illegal  drugs; Version  O now specifies  - in                                                               
Section  2, subsection  (a)(9) -  that  the information  required                                                               
should pertain to  use of illegal drugs.  She  mentioned that the                                                               
issue of whether to also  require that information on tobacco use                                                               
during pregnancy  be included  might be  discussed later.   Five,                                                               
that  there  is  no  need,  if   there  is  a  signed  and  dated                                                               
certificate showing  informed consent, for the  certificate to be                                                               
stamped as well;  Version O does not  contain language pertaining                                                               
to  certificates.   Six, that  the department  should be  granted                                                               
regulatory authority  to create the  pamphlet required by  SB 30;                                                               
Version O provides  that authority in Section  2, subsection (b),                                                               
on page 4, lines 7-8.                                                                                                           
                                                                                                                                
MS. TONDINI offered her belief  that the attorney general's March                                                               
30 legal  analysis agrees that  almost all of  the aforementioned                                                               
concerns have been addressed in Version  O.  The only other issue                                                               
that  the  committee may  still  wish  to address,  she  offered,                                                               
pertains  to  the   language  on  page  4,   lines  30-31,  which                                                               
stipulates that a  woman must be domiciled  or physically present                                                               
in the state  for 30 days before the abortion.   This language is                                                               
part of current  law, she relayed, but  offered her understanding                                                               
that there  is a distinction  between being domiciled,  which she                                                               
surmised  meant  being  physically  present with  the  intent  to                                                               
remain, and residency, which she  surmised meant being physically                                                               
present in the state  for 30 days.  She suggested  that if such a                                                               
requirement  is kept  in  statute, it  should  be clarified  with                                                               
regard to the legislature's intent.                                                                                             
                                                                                                                                
Number 0784                                                                                                                     
                                                                                                                                
SENATOR  FRED DYSON,  Alaska State  Legislature, sponsor,  shared                                                               
his appreciation  for the committee's  patience and all  the work                                                               
that's been done on SB 30.                                                                                                      
                                                                                                                                
Number 0803                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG  made a motion  to adopt  Conceptual Amendment                                                               
1, to  say, on page  4, line 3,  that the information  pertain to                                                               
alcohol, tobacco,  legal drugs, and  illegal drugs.   There being                                                               
no objection, Conceptual Amendment 1 was adopted.                                                                               
                                                                                                                                
Number 0881                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  2, which                                                               
read [original punctuation provided]:                                                                                           
                                                                                                                                
     Page 4, lines 30-31:                                                                                                       
                                                                                                                                
     Delete all material                                                                                                        
                                                                                                                                
Number 0889                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
                                                                                                                                
REPRESENTATIVE  GARA  said  that  the  language  which  would  be                                                               
deleted  by  Amendment  2  precludes  a  woman  from  getting  an                                                               
abortion  if she  hasn't lived  in  the state  for 30  days.   He                                                               
opined  that such  a  restriction  is probably  unconstitutional,                                                               
pointed  out  that   no  other  medical  procedure   has  such  a                                                               
restriction, and  surmised that it  would require a woman  who is                                                               
right  at  the end  of  her  first  trimester of  pregnancy,  for                                                               
example, and  who's just moved  to the  state, to wait  until her                                                               
second trimester before getting an abortion.                                                                                    
                                                                                                                                
REPRESENTATIVE SAMUELS asked what other  states do with regard to                                                               
this issue,  and asked for  confirmation that the  language which                                                               
would be deleted via Amendment 2 is part of current law.                                                                        
                                                                                                                                
REPRESENTATIVE GARA replied:  "It is  part of the current law.  I                                                               
think  ... it  might  have been  added as  part  of the  informed                                                               
consent law that was  passed a couple of years ago  that is up in                                                               
the supreme court now, but I'm  not so sure when it was [adopted]                                                               
...."                                                                                                                           
                                                                                                                                
SENATOR DYSON mentioned that he did not know that either.                                                                       
                                                                                                                                
REPRESENTATIVE GARA said  he cannot see a reason  why they should                                                               
tell a  woman who  picks one  procedure that she  has to  live in                                                               
Alaska for 30 days, particularly  given that the ramifications of                                                               
waiting  30  days are  that  it  might  become  too late  or  too                                                               
dangerous to  have an  abortion, and  also because  anybody else,                                                               
for any  other procedure, doesn't have  to live in Alaska  for 30                                                               
days.                                                                                                                           
                                                                                                                                
REPRESENTATIVE OGG suggested that the  reason such language is in                                                               
statute is to stop "form shopping."                                                                                             
                                                                                                                                
REPRESENTATIVE  GARA said  he didn't  think that  people come  to                                                               
Alaska just to  get abortions, and suggested that  it is probably                                                               
easier and cheaper to get an abortion in another state.                                                                         
                                                                                                                                
SENATOR  DYSON   remarked  that  preventing  someone   from  form                                                               
shopping  is  a  persuasive  argument  for  keeping  the  current                                                               
language  as is,  because if  the parental  consent provision  is                                                               
ultimately struck down,  then minors may come to  Alaska in order                                                               
to get around the parental consent requirements of other states.                                                                
                                                                                                                                
Number 1212                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG remarked:                                                                                              
                                                                                                                                
     I believe  that the  note [to  that statute]  says that                                                                    
     the Department  of law does not  currently enforce that                                                                    
     section, and I believe the  implication is that it's of                                                                    
     doubtful  constitutionality.   The case  that comes  to                                                                    
     mind,  a  case  out  of Washington  DC  from  the  U.S.                                                                    
     Supreme  Court  a  number  of  years  ago,  Shapiro  v.                                                                  
     Thompson  (ph),   said  that   in  dealing   with  case                                                                  
     involving  fundamental rights,  it is  unconstitutional                                                                    
     to impinge  on the  person's right  to travel;  in that                                                                    
     case,  it  involved welfare.    And  recent cases  have                                                                    
     expanded that to include  the privileges and immunities                                                                    
     clause  as a  basis for  striking down  provisions like                                                                    
     this.                                                                                                                      
                                                                                                                                
     I   do   not   think   that  this   would   survive   a                                                                    
     constitutional  challenge under  either the  ... [U.S.]                                                                    
     Constitution  or,  frankly,  under the  Alaska  [State]                                                                    
     Constitution's right to privacy,  and I think that this                                                                    
     would  be struck  down  without question.    And ...  I                                                                    
     think  the  attorney  general's  very  correct  in  its                                                                    
     determination not to enforce it,  because it would be a                                                                    
     needless waste of  state resources.  It's  on the books                                                                    
     ...   [though]  it's   not   being   enforced  by   any                                                                    
     administration and it's  unconstitutional, so I support                                                                    
     the amendment.   I'd  like to see  us pass  things that                                                                    
     are constitutional.                                                                                                        
                                                                                                                                
REPRESENTATIVE   GARA    said   that   ultimately,    there's   a                                                               
philosophical  rift  among many  legislators  on  an issue  where                                                               
there are  really good arguments  on both  sides, but as  long as                                                               
the legislature is going to recognize  that a woman has the right                                                               
to choose an abortion, the  language that Amendment 2 proposes to                                                               
delete  is an  impediment to  a legal  right, an  impediment that                                                               
doesn't exist for  anybody else for any  other medical procedure.                                                               
He  said   he  believes  that   [the  current  language]   is  an                                                               
inappropriate impediment to a constitutional right.                                                                             
                                                                                                                                
Number 1372                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  asked  whether  the  language  that  Amendment  2                                                               
proposes to delete would apply to victims of incest or rape.                                                                    
                                                                                                                                
SENATOR DYSON  said he did  not intend for  it to apply  in those                                                               
situations.                                                                                                                     
                                                                                                                                
CHAIR McGUIRE asked Senator Dyson  whether he would be willing to                                                               
accept a friendly amendment to that effect.                                                                                     
                                                                                                                                
SENATOR DYSON said yes.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GARA   said  he  would  not   accept  a  friendly                                                               
amendment  to Amendment  2,  adding,  "I just  think  ... it's  a                                                               
constitutional right ...."                                                                                                      
                                                                                                                                
REPRESENTATIVE  HOLM  mentioned that  he  isn't  sure whether  an                                                               
abortion would even  be preformed within the first 30  days [of a                                                               
woman's pregnancy].                                                                                                             
                                                                                                                                
CHAIR McGUIRE  noted that the  provisions pertaining to  rape and                                                               
incest are on page 6, under proposed AS 18.16.060(d).                                                                           
                                                                                                                                
REPRESENTATIVE OGG  remarked that such  is a tough issue  to deal                                                               
with.                                                                                                                           
                                                                                                                                
Number 1519                                                                                                                     
                                                                                                                                
A roll  call vote  was taken.   Representatives  Gara, Gruenberg,                                                               
and Samuels voted in favor  of Amendment 2.  Representatives Ogg,                                                               
Holm,  and McGuire  voted  against it.    Therefore, Amendment  2                                                               
failed by a vote of 3-3.                                                                                                        
                                                                                                                                
Number 1535                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  3, which                                                               
read [original punctuation provided]:                                                                                           
                                                                                                                                
     Page Two, Lines 11-12:                                                                                                     
                                                                                                                                
     Delete all material                                                                                                        
                                                                                                                                
                                                                                                                                
Number 1543                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected for the purpose of discussion.                                                                           
                                                                                                                                
REPRESENTATIVE GARA  said that although  he would  not ordinarily                                                               
propose  an  amendment  to a  legislative  finding,  because  its                                                               
language  says that  the  legislature  has received  considerable                                                               
testimony  indicating  that  women have,  on  occasion,  received                                                               
abortions   in   the   state   without   considering   sufficient                                                               
information, but  he has not heard  such testimony in any  of the                                                               
committees that  he has sat on,  he is reluctant to  include such                                                               
language because  it isn't supported  by the evidence  with which                                                               
he is familiar.                                                                                                                 
                                                                                                                                
CHAIR  McGUIRE asked  Senator Dyson  whether, when  creating this                                                               
language, he  was referring to  testimony that he'd heard  in the                                                               
committees that he'd sat on.                                                                                                    
                                                                                                                                
SENATOR DYSON  said yes,  adding, "I understood  that ...  if the                                                               
attorney  general is  ever having  to  defend this,  it helps  to                                                               
establish the case of why, why  ... did the legislature take this                                                               
action  to try  to ensure  that people  got the  information they                                                               
needed."                                                                                                                        
                                                                                                                                
REPRESENTATIVE  HOLM   asked  whether  the  testimony   that  the                                                               
findings section refers to is on record.                                                                                        
                                                                                                                                
SENATOR DYSON said yes.                                                                                                         
                                                                                                                                
REPRESENTATIVE GARA remarked:                                                                                                   
                                                                                                                                
     I ...  think I misread  this sentence; I guess  it says                                                                    
     considerable  testimony  has  been received,  not  that                                                                    
     this  has happened  on considerable  occasions.   So  I                                                                    
     guess I took this [paragraph]  (6) to mean that we were                                                                    
     finding  that many  women  have  had abortions  without                                                                    
     thinking about  them first but, really,  it doesn't say                                                                    
     that.  It  just says there was a lot  of testimony, and                                                                    
     it doesn't say that this is happening a lot.                                                                               
                                                                                                                                
Number 1660                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA withdrew Amendment 3.                                                                                       
                                                                                                                                
Number 1700                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  4,                                                               
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Page 4, line 19: Delete "or surgeon."                                                                                      
                                                                                                                                
Number 1709                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  said it  is his understanding  that all                                                               
surgeons are physicians.                                                                                                        
                                                                                                                                
CHAIR McGUIRE  remarked that  she knows of  no surgeons  that are                                                               
not physicians.                                                                                                                 
                                                                                                                                
Number 1725                                                                                                                     
                                                                                                                                
JASON HOOLEY, Staff to Senator Fred Dyson, Alaska State                                                                         
Legislature, sponsor, noted that the language Amendment 4                                                                       
proposes to delete is part of current law.                                                                                      
                                                                                                                                
CHAIR McGUIRE, after withdrawing her objection to Amendment 4,                                                                  
announced that Amendment 4 was adopted.                                                                                         
                                                                                                                                
Number 1784                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 5,                                                                    
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Page 2, lines 17-20: Amend paragraph (1) as follows                                                                        
                                                                                                                                
          (1) contains geographically indexed material                                                                          
     designed  to  inform a  person  of  public and  private                                                                    
     agencies, [AND]  services, clinics and  facilities that                                                                
     are  available  to  assist a  woman  with  the  woman's                                                                    
     reproductive  choices;  the  department  shall  include                                                                    
     information  about  at  least the  following  types  of                                                                    
     agencies, [AND] services, clinics and facilities:                                                                      
                                                                                                                                
                                                                                                                                
     Page 2, line 29:  Amend paragraph (2) as follows:                                                                          
                                                                                                                                
          (2) includes a comprehensive regional directory                                                                       
     of   the   agencies,   services  [AND]   clinics,   and                                                                
     facilities identified  by the  department under  (1) of                                                                  
     this  subsection, a  description of  the services  they                                                                    
     offer, and  the manner in which  the agencies, services                                                                  
     [AND]  clinics,   and  facilities  may   be  contacted,                                                                  
     including telephone numbers;                                                                                               
                                                                                                                                
Number 1801                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG indicated that Amendment 5 merely                                                                      
conforms the language in paragraphs (1) and (2) to the language                                                                 
in paragraph (1)'s subparagraphs.                                                                                               
                                                                                                                                
SENATOR DYSON said he did not have a problem with Amendment 5.                                                                  
                                                                                                                                
Number 1859                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE withdrew  her objection  and  asked whether  there                                                               
were any  further objections to  Amendment 5.  There  being none,                                                               
Amendment 5 was adopted.                                                                                                        
                                                                                                                                
Number 1867                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  6,                                                               
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Page 4, line 5: Insert  new paragraph (10) and renumber                                                                    
     existing paragraph (10) as paragraph (11):                                                                                 
                                                                                                                                
                                                                                                                                
          (10)    contains    objective,    unbiased,    and                                                                    
     comprehensive   information   that  is   reviewed   and                                                                    
     approved  for medical  accuracy and  appropriateness by                                                                    
     recognized  obstetrics  and  gynecological  specialists                                                                    
     designated  by the  State  Medical  Board on  different                                                                    
     types  of  available   contraceptive  choices  and  the                                                                    
     medical  risk   and  possible   complications  commonly                                                                    
     associated  with each  method as  well as  the possible                                                                    
     psychological  effects that  have been  associated with                                                                    
     using contraceptives;                                                                                                      
                                                                                                                                
REPRESENTATIVE   GRUENBERG  mentioned   that   the  language   in                                                               
Amendment 6 is from HCS CSSB 30(HES).                                                                                           
                                                                                                                                
SENATOR DYSON  relayed that he  has in his possession  a slightly                                                               
different   amendment  on   the   same   topic  -   contraceptive                                                               
information  - that  uses the  phrase  "including abstinence  and                                                               
natural  family  planning".   He  indicated  that adding  such  a                                                               
phrase to Amendment  6 would alleviate most of  his objections to                                                               
including a  provision regarding  contraceptive information.   He                                                               
offered  his belief,  though, that  neither Amendment  6 nor  the                                                               
amendment he has  contains a disclaimer about  the graphic nature                                                               
of such information.                                                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out  that  that disclaimer  is                                                               
already in the bill.                                                                                                            
                                                                                                                                
MS.  TONDINI  concurred,   adding  that  it  is   in  a  separate                                                               
subsection.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said he  would  have  no problem  with                                                               
conceptually amending  Amendment 6  to add the  phrase "including                                                               
abstinence and natural family planning".                                                                                        
                                                                                                                                
CHAIR  McGUIRE suggested  that  Amendment 6  also  be amended  to                                                               
include,  wherever appropriate,  the department's  recommendation                                                               
regarding graphic and sensitive material.                                                                                       
                                                                                                                                
Number 2031                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  [made a  motion to]  conceptually amend                                                               
Amendment 6  to "put the [attorney  general's recommendation] ...                                                               
[with] Senator  [Dyson's] ... language  and my thing  together in                                                               
one  provision."   There  being  no  objection, Amendment  6  was                                                               
amended.                                                                                                                        
                                                                                                                                
Number 2044                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Amendment 6, as amended.   There being no objection, Amendment 6,                                                               
as amended, was adopted.                                                                                                        
                                                                                                                                
Number 2073                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  7,                                                               
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Page 5, lines 10-18:  Amend subsection (i) as follows:                                                                     
                                                                                                                                
          (i)  It is a defense to any action for medical                                                                        
     malpractice  based upon  an alleged  failure to  obtain                                                                    
     informed consent of a person  under (h) of this section                                                                    
     that                                                                                                                       
               (1)  the risk not disclosed is too commonly                                                                      
     known or is too remote to require disclosure; or                                                                           
               (2)  the person who is the subject of the                                                                        
     alleged failure  to obtain the informed  consent stated                                                                    
     to  the physician  or other  health care  provider that                                                                    
     the  patient would  or would  not undergo  the abortion                                                                    
     procedure regardless  of the risk involved  or that the                                                                    
     person did  not want to  be informed of the  matters to                                                                    
     which the person would be entitled to be informed; or                                                                    
               (3)  under the circumstances, consent by or                                                                    
     on behalf of the patient was not possible; or                                                                            
               (4)  the physician or health care provider,                                                                    
     after  considering  all  of  the  attendant  facts  and                                                                  
     circumstances,  used reasonable  discretion  as to  the                                                                  
     manner and  extent that the alternatives  or risks were                                                                  
     disclosed  to  the  patient  because  the  health  care                                                                  
     provider  reasonably believed  that  a full  disclosure                                                                  
     would  have  a  substantially  adverse  effect  on  the                                                                  
     patient's condition.                                                                                                     
                                                                                                                                
Number 2089                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  relayed that  Amendment 7  contains, in                                                               
part,  language  from [AS  09.55.556  as  it  is proposed  to  be                                                               
amended by] HB 472.                                                                                                             
                                                                                                                                
CHAIR McGUIRE  added that Amendment 7  would conform SB 30  to HB
472, which pertains to medical malpractice.                                                                                     
                                                                                                                                
REPRESENTATIVE GARA objected.  He said:                                                                                         
                                                                                                                                
     It would  be inconsistent for  me to narrow  the rights                                                                    
     of a  woman who's a  victim of ...  malpractice because                                                                    
     she's pregnant,  when I don't  believe that  the rights                                                                    
     of other victims of malpractice  should be limited. ...                                                                    
     So,  right now,  we're getting  rid of  the reasonable-                                                                    
     patient  standard  for  pregnant  women  -  that's  the                                                                    
     reasonable-patient   standard  for   informed  consent.                                                                    
     Current  law is  that a  doctor has  a duty  to give  a                                                                    
     patient all of  the information that they  need and all                                                                    
     of  the information  that  a  reasonable patient  would                                                                    
     want.    There  is  an effort  afoot,  in  the  medical                                                                    
     malpractice bill,  to say that [that]  shouldn't be the                                                                    
     standard  for  informed   consent,  [rather  that]  the                                                                    
     standard  for   informed  consent  should  be   what  a                                                                    
     reasonable  doctor   in  the  community   provides  for                                                                    
     information - it's a ...  smaller amount of information                                                                    
     probably. ...                                                                                                              
                                                                                                                                
Number 2201                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  suggested bifurcating Amendment 7.   He                                                               
directed attention  to proposed  [paragraph] (3) of  Amendment 7,                                                               
and  posited  that  there  shouldn't  be  any  objection  to  the                                                               
addition of  that language because it  should be a defense  if it                                                               
is impossible to get someone's consent for some reason.                                                                         
                                                                                                                                
SENATOR DYSON asked how it would  be impossible to get consent by                                                               
or on behalf of the patient.                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  suggested that  such could happen  if a                                                               
woman is in a coma and an  abortion needs to be performed to save                                                               
her life.                                                                                                                       
                                                                                                                                
SENATOR DYSON pointed  out, however, that language on  page 6 [of                                                               
the  bill],  lines  27-28,  says that  informed  consent  is  not                                                               
required in cases of medical  emergency; he suggested, therefore,                                                               
that proposed paragraph (3) of Amendment 7 is not necessary.                                                                    
                                                                                                                                
CHAIR McGUIRE agreed.                                                                                                           
                                                                                                                                
REPRESENTATIVE   GRUENBERG   argued   that   the   aforementioned                                                               
hypothetical  situation might  not constitute  an emergency  and,                                                               
thus, would  not be covered under  the language on page  6, lines                                                               
27-28.                                                                                                                          
                                                                                                                                
SENATOR DYSON  opined, though,  that if it  is not  an emergency,                                                               
then  there  will be  time  to  obtain  consent from  the  person                                                               
designated or appointed to act on the woman's behalf.                                                                           
                                                                                                                                
TAPE 04-51, SIDE B                                                                                                            
Number 2364                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG said:                                                                                                  
                                                                                                                                
     The  context  this will  arise  [in]  is in  a  medical                                                                    
     malpractice case, and I don't  want to see the [doctor]                                                                    
     sued in  this situation when they're  reasonably trying                                                                    
     to  give the  information  that's necessary.   This  is                                                                    
     trying  to allow  a  reasonable  physician to  practice                                                                    
     reasonably ... without fear of  some lawsuit coming out                                                                    
     of left  field, ...  and it's doing  the same  thing we                                                                    
     did in the general malpractice bill ....                                                                                   
                                                                                                                                
SENATOR DYSON  said he did  not feel  a need to  include proposed                                                               
paragraph  (3).    With  regard  to  proposed  paragraph  (4)  of                                                               
Amendment 7, he  said that it comes across as  insulting to women                                                               
to say that full disclosure will  have an adverse effect on their                                                               
condition.   He  said  he  could envision  a  scenario wherein  a                                                               
doctor decides to  perform an abortion on a  woman having surgery                                                               
without getting informed consent  because of the possibility that                                                               
informing her  about the pregnancy/abortion will  have an adverse                                                               
effect on her  condition.  He opined that women  are tough enough                                                               
to handle the  information that they are pregnant  and what would                                                               
be  involved  in an  abortion,  and  that  they would  want  that                                                               
information.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS remarked  that he  wouldn't want  to have                                                               
doctors exposed to potential lawsuits  regarding this issue.  He,                                                               
too, suggested bifurcating Amendment 7.                                                                                         
                                                                                                                                
REPRESENTATIVE  GARA said  he cannot  understand  why they  would                                                               
want  to  give a  pregnant  woman  fewer  rights than  any  other                                                               
patient.   People have  a right  to fair  information and  a fair                                                               
level of  competence from their  physicians, and he did  not feel                                                               
like compromising those rights,  he remarked, adding, "I've never                                                               
heard of any sort of explosion  of frivolous lawsuits in the area                                                               
abortions, and  don't know why  we have to limit  people's rights                                                               
just to  prevent frivolous  lawsuits ... that  don't exist."   He                                                               
mentioned that  he agrees with Senator  Dyson regarding Amendment                                                               
7.                                                                                                                              
                                                                                                                                
SENATOR DYSON  asked whether the  provisions contained in  HB 472                                                               
would cover abortions  if it is adopted into law.   He questioned                                                               
whether, if such is the case, Amendment 7 is even necessary.                                                                    
                                                                                                                                
CHAIR  McGUIRE remarked  that in  statutes,  a general  provision                                                               
applies unless there is a specific provision.                                                                                   
                                                                                                                                
Number 2011                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  offered  that   since  SB  30  already                                                               
contains paragraphs (1) and (2)  of Amendment 7 - which contains,                                                               
in part,  language from  [AS 09.55.556  as it  is proposed  to be                                                               
amended  by]  HB  472  -  it  would  be  congruent  to  also  add                                                               
paragraphs (3) and (4).  Not  including paragraphs (3) and (4) in                                                               
SB 30  would provide less  immunity for abortion  procedures than                                                               
for all other  procedures, he added.  Conversely,  he queried, if                                                               
that  immunity  should not  apply  to  abortion procedures,  why,                                                               
then, should it apply to all other procedures.                                                                                  
                                                                                                                                
SENATOR DYSON said  he still has a strong  objection to including                                                               
proposed  paragraphs (3)  and (4)  in SB  30, and  reiterated his                                                               
arguments for leaving them out.                                                                                                 
                                                                                                                                
REPRESENTATIVE  GARA asked  what kind  of circumstances  proposed                                                               
paragraph (4) would apply in.                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  that   he  didn't  know  of  any                                                               
specific circumstances; rather, he was  just thinking that if the                                                               
language is  in HB 472, then  it ought to also  be in SB 30.   He                                                               
surmised that all of Senator  Dyson's arguments against including                                                               
this language in SB 30 are also applicable to HB 472.                                                                           
                                                                                                                                
Number 1917                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  made a  motion to  amend Amendment  7, to                                                               
eliminate paragraph (3).                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG said  he just wants HB 472 and  SB 30 to                                                               
be consistent.                                                                                                                  
                                                                                                                                
CHAIR  McGUIRE  opined  that abortion  is  different  than  other                                                               
procedures, and  said she could envision  someone using paragraph                                                               
(3) to get around having to obtain informed consent.                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  he   would  not  object  to  the                                                               
amendment to  Amendment 7, but  noted that his concern  is simply                                                               
that the two bills be consistent.                                                                                               
                                                                                                                                
Number 1853                                                                                                                     
                                                                                                                                
CHAIR McGUIRE, after ascertaining  that there were no objections,                                                               
announced that Amendment 7 was amended.                                                                                         
                                                                                                                                
REPRESENTATIVE  GARA   said  he  objected  to   the  adoption  of                                                               
Amendment 7, as amended, for the reasons he stated earlier.                                                                     
                                                                                                                                
REPRESENTATIVE OGG  offered his understanding that  the bill that                                                               
passes last  takes precedence:   if  HB 472  passes first,  SB 30                                                               
will provide an exception to it and visa versa.                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG said he disagrees.  He elaborated:                                                                     
                                                                                                                                
     This covers the defenses  for medical malpractice based                                                                    
     upon an  alleged failure to obtain  informed consent of                                                                    
     a  person  under  subsection   (h),  and  the  specific                                                                    
     controls over  the general where  they're inconsistent,                                                                    
     and so if there's  any inconsistency, this would apply.                                                                    
     And  I think  it is  inconsistent now  in at  least the                                                                    
     sense that  a defense  in [HB 472]  ... that  would be,                                                                    
     quote,  "under the  circumstances, consent  [by or  on]                                                                    
     behalf  of  the  patient was  not  possible",  unquote,                                                                    
     would  not be  an  allowable defense  in  this kind  of                                                                    
     malpractice (indisc.).                                                                                                     
                                                                                                                                
Number 1757                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE asked  Representative Gruenberg  whether he  would                                                               
accept a  second amendment to Amendment  7, as amended, to  put a                                                               
period after "patient" in proposed paragraph (4).                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG said he would accept that change.                                                                      
                                                                                                                                
Number 1719                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  said he  objects  to  such  a change.    He                                                               
elaborated:                                                                                                                     
                                                                                                                                
     I  can't  imagine  a circumstance  where  a  woman  who                                                                    
     doesn't want to  have an abortion should  have her will                                                                    
     overruled.    If  a  woman  doesn't  want  to  have  an                                                                    
     abortion, that  ... decision should be  respected.  And                                                                    
     if we  are implying  here that  a physician  might know                                                                    
     better than the woman and  decide, 'under the facts and                                                                    
     circumstances",  to  withhold information  because  the                                                                    
     physician thinks it's  better for the woman  to have an                                                                    
     abortion, I  think that's ...  not good policy.  ... We                                                                    
     have a right  in this state ... under  current law that                                                                    
     says a  physician has  the duty  to disclose  all known                                                                    
     risks and  all known  dangers and all  known reasonable                                                                    
     alternatives to a patient.                                                                                                 
                                                                                                                                
     I think that's  fair; that's ... a  right that patients                                                                    
     should have, and  I'm going to object  [to] the changes                                                                    
     in that law  in [HB 472] ... vociferously  on the House                                                                    
     floor.  But the implication  here that a doctor should,                                                                    
     because they  believe it's reasonable, be  able to lull                                                                    
     somebody into  having an abortion when  they don't want                                                                    
     to have an abortion I think is dangerous."                                                                                 
                                                                                                                                
CHAIR McGUIRE offered her belief  that such is not Representative                                                               
Gruenberg's  intent or  the intent  of Amendment  7, as  amended.                                                               
She  opined that  the language  in  Amendment 7,  as amended,  is                                                               
meant  to  allow for  a  reasonable-physician  standard, so  that                                                               
there will not  be a proliferation of lawsuits.   It is not meant                                                               
to provide  a method  by which  a doctor  can bypass  a patient's                                                               
will.                                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG pointed out  that he offered Amendment 7                                                               
with the goal  of making the two bills congruent.   Now, however,                                                               
Amendment 7  has been amended and  a further amendment to  it has                                                               
been suggested, and so it  substantially increases the discretion                                                               
[of the physician] and the scope of the defense.                                                                                
                                                                                                                                
Number 1512                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew Amendment 7, as amended.                                                                      
                                                                                                                                
The committee took an at-ease from 2:20 p.m. to 2:21 p.m.                                                                       
                                                                                                                                
Number 1493                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  8, which                                                               
read [original punctuation provided]:                                                                                           
                                                                                                                                
     Page 1, lines 1-2:  Delete "and other persons"                                                                             
                                                                                                                                
     Page 3, section 6 and Page 4, sections 3 and 4: Delete                                                                     
      "unborn child" wherever it appears and replace with                                                                       
     "fetus"                                                                                                                    
                                                                                                                                
Number 1474                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
                                                                                                                                
REPRESENTATIVE  GARA,   referring  to   the  second   portion  of                                                               
Amendment 8, noted that the  bill currently uses the term "unborn                                                               
child" in  places where  historically the  term "fetus"  has been                                                               
used.  He  said he does not  want to decrease the  chances that a                                                               
woman's right  to choose to  have an  abortion will be  upheld by                                                               
future  courts, and  suggested that  not using  the term  "fetus"                                                               
increases  the  chances that  a  woman  will  lose her  right  to                                                               
choose.   He  said he  would prefer  that the  bill use  the term                                                               
"fetus"  because  it  is  the  medical term  and  has  been  used                                                               
historically.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG   said  he  would  like   to  cosponsor                                                               
Amendment 8.                                                                                                                    
                                                                                                                                
SENATOR DYSON,  referring to  the first  portion of  Amendment 8,                                                               
explained that  he'd included the  phrase "and other  persons" in                                                               
the  title  because  he's   anticipating  that  parental  consent                                                               
language  will survive  constitutional challenge,  and that  "and                                                               
other persons" refers to parents and guardians.                                                                                 
                                                                                                                                
Number 1304                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  made a  motion  to  amend Amendment  8,  to                                                               
delete the first portion of Amendment 8.                                                                                        
                                                                                                                                
Number 1290                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM objected and then removed his objection.                                                                    
                                                                                                                                
Number 1287                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that Amendment 8 has been amended.                                                                      
                                                                                                                                
SENATOR DYSON opined that Amendment 8, as amended, gets right to                                                                
the heart of the whole debate.  He elaborated:                                                                                  
                                                                                                                                
     Fetus is just Latin for unborn  child.  You can put the                                                                    
     whole  bill in  Latin if  you want.  ... What  I really                                                                    
     worry about here, and it gets  back to the heart of the                                                                    
     argument, is  an attempt  to justify  the fact  that in                                                                    
     this country, some people do  not have protections, and                                                                    
     that is:  if you're  an unborn child, you're not worthy                                                                    
     of ...  protection under  the law.   And if  ... that's                                                                    
     your goal, then  you really do want  to, everywhere you                                                                    
     can, substitute a synonym, in  whatever language, for a                                                                    
     human  being.    And  that has  been  ...  the  classic                                                                    
     pattern  of  oppressors  down through  6,000  years  of                                                                    
     recorded history  ....  [If]  there's a group  that you                                                                    
     don't  want  to  have  rights, then  you  come  up  for                                                                    
     another  term for  them.    And I'm  very  wary of  ...                                                                    
     continuing that pattern. ...                                                                                               
                                                                                                                                
     The  U.S. Congress  has just  passed  the unborn  child                                                                    
     protection  Act  recognizing  at least,  if  the  child                                                                    
     happens to  be wanted, [that  in] doing damage  to that                                                                    
     child,  something, in  fact and  in law,  of value  was                                                                    
     lost. ...  [Amendment 8,  as amended]  is not  going to                                                                    
     change the content of the  bill; it changes the flavor.                                                                    
     And  for those  of you  that want  to preserve,  quote,                                                                    
     "the right  to choose"  - and I  think the  more proper                                                                    
     (indisc.)  is,   "the  right  to  solve   the  unwanted                                                                    
     pregnancy  by  terminating  the life  of  a  developing                                                                    
     child" - ...  and if you want to obscure  the fact that                                                                    
     we're  dealing  with  a   human  life,  then  obscuring                                                                    
     language,  even  if  it  happens to  be  that  it  [is]                                                                    
     sometimes used in  medical circles, but I  can tell you                                                                    
     when a  doctor's ... dealing  with a  woman [regarding]                                                                    
     prenatal care,  they don't ever  talk about  the fetus,                                                                    
     they're talking about a baby -- and so I object ....                                                                       
                                                                                                                                
Number 1068                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA said he did not introduce Amendment 8, as                                                                   
amended, to denigrate the value of a woman or a woman who's                                                                     
carrying a child.  He elaborated:                                                                                               
                                                                                                                                
     I've introduced  [Amendment 8, as amended]  because the                                                                    
     first thing that those lawyers  on the pro-life side of                                                                    
     the  issue are  going  to  do if  this  bill passes  as                                                                    
     written is  say, "Look, the state  of Alaska recognizes                                                                    
     that a pregnant  woman is carrying a  child even before                                                                    
     the child  is born, at  day one,  at day two,  at month                                                                    
     one,  at month  two, at  month three,  at month  four."                                                                    
     They're going  to make that argument  and they're going                                                                    
     to say to  the courts that the state of  Alaska has now                                                                    
     elevated  the protection  it wants  to  give to  unborn                                                                    
     children, it has now lowered  the interest that a woman                                                                    
     has, in  having an  abortion.  And  it will  argue that                                                                    
     the calculus  the court has  to enter into  in deciding                                                                    
     whether  a woman  still  has a  right  to abortion  has                                                                    
     changed, because  in order to  take away  a fundamental                                                                    
     right,  the  court has  to  consider  what the  state's                                                                    
     interests are.   And I  think by changing  the language                                                                    
     we are now  creating an argument for  the pro-life side                                                                    
     of the  battle, that we  have elevated the  interest in                                                                    
     not having abortions in this state.                                                                                        
                                                                                                                                
     So  I am  not particularly  offended, in  the parlance.                                                                    
     I've  ... patted  pregnant friends  of mine  and talked                                                                    
     about the  baby inside the  pregnant friend of  mine; I                                                                    
     consider  it  a  baby  at that  point,  personally,  in                                                                    
     parlance.  I  just know that this language  is going to                                                                    
     be  used  in  legal  battles to  try  and  undermine  a                                                                    
     woman's right to have an  abortion, and I don't want to                                                                    
     undermine  that  right.    We  are  so  philosophically                                                                    
     opposed on  this one, we'll  never agree, and so,  if I                                                                    
     have a  ... motive ..., it's  that I want to  protect a                                                                    
     woman's right to  choose and I don't want  to give away                                                                    
     an  argument in  court  in the  future.   And  frankly,                                                                    
     that's why the lawyers on  both sides and the lobbyists                                                                    
     on both  sides of these  issues fight over  these words                                                                    
     all the  time.  And so  in a conversation I'll  have no                                                                    
     problem  using  either  term,  but   in  court  it's  a                                                                    
     different [story].                                                                                                         
                                                                                                                                
Number 0979                                                                                                                     
                                                                                                                                
A roll call vote was taken.  Representatives Gara and Gruenberg                                                                 
voted in favor of Amendment 8, as amended.  Representatives Ogg,                                                                
Samuels,   Holm,  Anderson,   and  McGuire   voted  against   it.                                                               
Therefore, Amendment 8, as amended, failed by a vote of 2-5.                                                                    
                                                                                                                                
Number 0945                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM moved to report  the proposed House committee                                                               
substitute  (HCS)  for  SB   30,  Version  23-LS0193\O,  Mischel,                                                               
3/22/04,   as  amended,   out   of   committee  with   individual                                                               
recommendations,  the accompanying  fiscal notes,  and the  legal                                                               
analysis by  the attorney  general dated March  30, 2004.   There                                                               
being no objection, HCS CSSB  30(JUD) was reported from the House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
Number 0908                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  made a  motion  to  [adopt  and] report  a  House                                                               
Concurrent  Resolution,  for  the purpose  of  making  conforming                                                               
changes to the  title of SB 30, out of  committee with individual                                                               
recommendations.   There being no  objection, a  House Concurrent                                                               
Resolution  [which later  became HCR  36] was  reported from  the                                                               
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
[HCS CSSB 30(JUD) was reported from committee.]                                                                                 
                                                                                                                                

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