Legislature(1997 - 1998)
02/06/1997 08:00 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 37 - PARENTAL CONSENT BEFORE MINOR'S ABORTION The next order of business to come before the House State Affairs Standing Committee was HB 37, "An Act relating to a requirement that a parent, guardian, or custodian consent before certain minors receive an abortion; establishing a judicial bypass procedure by which a minor may petition a court for authorization to consent to an abortion without consent of a parent, guardian, or custodian; amending the definition of `abortion`; and amending Rules 40 and 79, Alaska Rules of Civil Procedure; Rules 204, 210, 212, 213, 508, and 512.5, Alaska Rules of Appellate Procedure; and Rule 9, Alaska Administrative Rules." Number 2422 REPRESENTATIVE PETE KELLY, Alaska State Legislature, explained he introduced HB 37 to enforce the current law that required parental consent for a minor's abortion-AS Sec. 18.16.010, "Abortions." A parental consent law had been on the books since 1970. In 1976 it was declared unconstitutional by an attorney general without the provision of a judicial by-pass. House Bill 37 gave that by-pass. TAPE 97-9, SIDE A Number 0001 REPRESENTATIVE KELLY further stated parental consent was pretty clear and simple. Parents had to give permission for a school administrator or a doctor to give their child an aspirin, for example. It was quite a shock to many Alaskans that their daughters could receive an abortion without consent. In other states, parental involvement laws had been on the books and had made a positive impact on reducing the number of abortions and teenage pregnancies. He cited in Minnesota pregnancy rates fell by 20 percent, teenage abortions fell by 27 percent, and teenage birthrates fell by 12.5 percent. REPRESENTATIVE KELLY referred the committee members to Section 1, "Purpose; Findings," page 2, and read, "(3) the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related;" He believed this was true and that teenagers stood to benefit from the support and counsel from the parents during one of the most stressful times of their lives. He was aware that not all families were supportive and that some were abusive. That was the nature of the judicial by-pass. Legislators should not focus completely on abusive and dysfunctional families when making public policies because most families were supportive of their children in Alaska. He urged the members to give this bill consideration and to pass it from the committee. He called it a common sense bill. It was a bill that "most Alaskans can put in their hip pocket and understand and agree with. In fact, most do. They think that people don't have the right to come in to their family and cause their children to do things that they would disagree with." Most surgical techniques were very safe, but there were risks involved. People still died from legal abortions. Doctors made mistakes. The parents needed to be involved to relate medical history so that the procedure, if chosen, would go in the most smooth and beneficial way possible. He again asked for the support of the committee members. Number 0250 REPRESENTATIVE BERKOWITZ asked Representative Kelly what his position was on abortion? Number 0271 REPRESENTATIVE KELLY replied, "I am pro-life." Number 0276 REPRESENTATIVE BERKOWITZ asked Representative Kelly if there were any circumstances that he would find abortion to be acceptable? REPRESENTATIVE KELLY replied, "To protect the life of the mother." Not the emotional well-being of the mother, he explained, but to protect her life. Number 0297 REPRESENTATIVE BERKOWITZ asked Representative Kelly if HB 37 was part of a wider strategy regarding abortion? Number 0304 REPRESENTATIVE KELLY replied the strategy of HB 37 was to provide parental notification so that parents would know when surgical procedures were being performed on their children. Just like when they were required to be informed when their children were given an aspirin, for example. Number 0327 REPRESENTATIVE BERKOWITZ asked Representative Kelly if there were any companion bills to HB 37? REPRESENTATIVE KELLY replied, "I am not offering any companion bills." REPRESENTATIVE BERKOWITZ asked Representative Kelly if he would offer any companion bills to HB 37 in the future? REPRESENTATIVE KELLY replied he would offer future bills on abortion as he saw fit. REPRESENTATIVE BERKOWITZ asked Representative Kelly what sort of bills would he offer? CHAIR JAMES announced the questions of Representative Berkowitz were out of context to HB 37. She asked him to refrain from those questions. Number 0371 REPRESENTATIVE BERKOWITZ said, in his opinion, if HB 37 was the first salvo in an attack on abortion rights.... Number 0383 REPRESENTATIVE VEZEY objected. The rules of debate were clear, he said. "What may come before this committee at a future date was not what we were doing." Number 0399 CHAIR JAMES stated Representative Berkowitz was entitled to his opinion, but the issue on the table was HB 37, and any future bills were not part of the discussion. She asked him to rephrase his question. Number 0430 REPRESENTATIVE KELLY stated he may have misspoken earlier. He was a co-sponsor of HB 65. Number 0464 REPRESENTATIVE BERKOWITZ asked Representative Kelly to walk him through the process that he saw as a result of HB 37. A young woman found herself pregnant, then what would happen? Number 0479 REPRESENTATIVE KELLY replied in the best situation she would talk to her parents about it and then it would become a family decision. If she decided for whatever reason that she could not talk to her parents about it, there was a provision that allowed her to go to a judicial by-pass. The judge would then decided if there was a level of maturity adequate enough to make a decision without parental consent, or if there was abuse involved. Number 0541 REPRESENTATIVE BERKOWITZ stated Representative Kelly presumed that the young woman would immediately head to the court house. Number 0548 REPRESENTATIVE KELLY said he could not speak on every case. That would be the public policy. The option would be available to go to the courts if they chose not to go to their parents. It would be up to a judge if they "would get the relief that they sought." Number 0578 REPRESENTATIVE BERKOWITZ asked Representative Kelly how long was the time frame for this decision? Number 0585 REPRESENTATIVE KELLY replied five days. Number 0597 CHAIR JAMES asked Representative Kelly if five days was the decision making time allowed? REPRESENTATIVE KELLY replied it was decision making time for the courts. Number 0610 REPRESENTATIVE BERKOWITZ asked Representative Kelly if he knew how many people in the state would be affected by HB 37? Number 0622 REPRESENTATIVE KELLY replied the information was in the fiscal note. Number 0635 CHAIR JAMES explained there was a proposed committee substitute that needed to be adopted. She asked for a motion. Number 0647 REPRESENTATIVE HODGINS moved that the committee adopt the proposed committee substitute, 0-LS0227/E, Lauterbach, dated 1/21/97. Number 0667 REPRESENTATIVE BERKOWITZ objected. A roll call vote was taken. Representatives James, Hodgins, Ivan and Vezey voted in favor of the motion. Representatives Berkowitz and Elton voted against the motion. The committee substitute was adopted. CHAIR JAMES asked Representative Kelly if the fiscal note would change with the committee substitute? Number 0714 REPRESENTATIVE KELLY replied he had a committee substitute from the Senate bill that was identical to the adopted committee substitute. The fiscal note addressed 112 people. It contained the most current information. Number 0782 REPRESENTATIVE BERKOWITZ asked Representative Kelly, of the 112 people in the fiscal note, how many came from "unhealthy" families? Number 0797 REPRESENTATIVE KELLY replied the fiscal note was an estimate of the future from the Administration. He assumed it would be a mixture of children from abusive homes and children that were adequately mature to make their own decision. Number 0819 REPRESENTATIVE BERKOWITZ asked Representative Kelly how many of the 112.... CHAIR JAMES stated that was a question that did not have an answer. The fiscal note was a calculation based on existing numbers. She did not see how Representative Kelly could answer that question. REPRESENTATIVE BERKOWITZ replied, "I beg to differ." CHAIR JAMES reiterated it did not have an answer. Please try another question. Number 0855 REPRESENTATIVE BERKOWITZ asked Representative Kelly, of the 112 people in the fiscal note, how many were in areas beyond the reach of a court? Number 0866 REPRESENTATIVE KELLY replied that question was a concern of Dr. Nakamura, Department of Health and Public Services, who would testify later. There was not a court in every town or village in the state. And, there was a great distance for people to travel to get permission. However, there were no facilities to perform an abortion in most of those places either. They would have to travel to a town with a court in it anyway. That was the reason for a five day waiting period. Number 0928 REPRESENTATIVE ELTON asked Representative Kelly if he had reviewed the American Medical Association's (AMA) position on informed consent laws? Please comment on why its position that informed consent might increase the health risk to teenagers might be wrong. Number 0962 REPRESENTATIVE KELLY replied he disagreed that it might cause an increased health risk to teenagers because absent of parental involvement there was limited access to medical history. Moreover, he agreed that this was a deeply private decision. A decision that a family needed to make. That was the only part of the opposing rhetoric that he agreed with. He wanted to be involved when his child had a case of strep throat. He wanted to go the doctors office to answer the questions that needed to be answered. Most teenagers could not answer those questions about themselves. He believed it was more dangerous to undergo surgery without that type of information. Number 1046 REPRESENTATIVE ELTON stated he understood what Representative Kelly said, but that was not what the AMA believed. He stated he was not concerned about the children in Representative Kelly's family because it was an intricate unit. However, there were a lot of dysfunction families. Those were the ones that he was concerned about. In fact, some of the family members could be at fault in the pregnancy. He was not comfortable with an approach that said dysfunctional families had to be involved in this type of decision. Number 1105 REPRESENTATIVE KELLY replied that was the heart of HB 37-the judicial by-pass. The original statute since 1970 called for parental consent. The courts recognized that there were dysfunction families so some relief was needed. The bill perfectly addressed the concerns of Representative Elton. Number 1140 REPRESENTATIVE ELTON explained one judge in middle America denied a judicial order for an abortion due to immaturity because the minor did not take the issue to her family. There were no standards that the court system applied, he declared. Number 1189 CHAIR JAMES commented it made her feel good that someone else did not have faith in the courts. REPRESENTATIVE ELTON replied only sometimes. It depended on the issue. Number 1201 REPRESENTATIVE KELLY replied that judges were human. They would make mistakes. More importantly, "Children are human, and they're going to make a lot more mistakes." He wanted the parents or the courts to be involved so that they would make fewer mistakes and better decisions. The mistakes were life threatening or could cause sterility and horrible depression, for example. The bill did not address the issue of stupid judges and kids. Number 1242 REPRESENTATIVE ELTON stated that dumb decision were made and in the past it forced them into doing something that was illegal which increased the health risk. Moreover, he stated he found Section 1, "Purpose; Finding," incongruous. The findings indicated that immature minors lacked the ability to make informed decisions. He wondered if this also meant that they had the ability to be a good parent. Number 1284 REPRESENTATIVE KELLY replied civilization at large would say that children lacked the ability to make informed choices. He cited he was constantly signing consent forms for his children for field trips, for example. He did not care if his child went on a field trip. There was the issue of liability, however. The schools were terribly concerned about a field trip because they believed a child could not make an informed choice so it was necessary to cover themselves legally. But, when it came to an abortion, he asked, "Why was that outside the umbrella?" Number 1363 REPRESENTATIVE ELTON asked Representative Kelly, if they lacked that capacity, was he comfortable with their capacity to be a good parent? Number 1373 REPRESENTATIVE KELLY replied that was when the family was needed. Maybe the child was not capable of being a great parent, but the family would gather around and help raise that child. That would not happen in every situation. There were dysfunctional families. Public policy should not be made, however, on the basis of a minority of dysfunctional families. The judicial by-pass would allow for a forum to go around those families. Number 1413 REPRESENTATIVE BERKOWITZ stated Representative Kelly was concerned about a juvenile's immaturity in this forum. Whereas, in other forums he was concerned about a juvenile's waiver. He asked Representative Kelly to reconcile those two differences. Number 1429 REPRESENTATIVE KELLY replied he would be happy to answer that question, but he was asking about bills that were not before the committee. REPRESENTATIVE BERKOWITZ stated he was asking about a juvenile's maturity. Number 1437 CHAIR JAMES asked Representative Berkowitz to ask specific questions about HB 37. CHAIR JAMES stated the House State Affairs Standing Committee just passed a tobacco tax bill out of committee. The bill did not trust children to have the ability to make decisions. She wondered, "If it's okay for one thing, is it okay for another?" There were fringe elements involved so let's talk about the issue before us and not deviate. Number 1526 DR. PETER NAKAMURA, Director, Division of Public Health, Department of Health and Social Services, commented there appeared to be room for consensus. We all agreed that a concerned parent should be involved. Fortunately, that was true in the majority of the cases. Studies showed that about 61 percent of young women involved their parents. Another 20 percent involved a responsible adult such as a clergyman. Unfortunately, of the 40 percent who did not obtain parental consent, one-third lived in an abusive home. He was concerned that the bill would put these young women into greater risk of harm-physically and/or psychologically. The remaining option would be to obtain an illegal abortion. He cited a young woman in Alaska today would be on life support and in the hospital for at least one year because the options did not seem available to her. He did not want to force a young woman into this situation. It was a real issue. Moreover, DR. NAKAMURA further stated the judicial by-pass made sense. It gave an option. However, the process was not friendly, especially for minors. And, he wondered if it would even be available to those in the rural areas. He was concerned that the young woman would wait until the choices were few and the risks went up. He was also concerned about the ability to maintain confidentiality. He explained he served as a pediatrician in Bethel. He had worked in the rural communities. He knew it would be virtually impossible to maintain a level of confidentiality. Number 1809 CHAIR JAMES stated that Dr. Nakamura indicated that even now there were illegal abortions. House Bill 37 would not change that. A judicial by-pass would not have made a difference. Number 1833 DR. NAKAMURA replied, yes, an individual could access the judicial system if it really was available. Number 1858 CHAIR JAMES explained she raised 3 of her own children and 19 foster children. From her experience with her foster children, she discovered the best success was to build a new relationship with the parents. The biological connection was extremely important. Moreover, a situation such as a pregnant teenager, pulled the family together. She asked Dr. Nakamura if he saw the value of encouraging the children to communicate with their parents-not in cases of abuse-but in cases of disciplinary issues, for example? Number 1941 DR. NAKAMURA replied there were situations where there would be positive gains. That would be on a case-by-case basis. Hopefully, the system would always work with parents no matter how un- supportive they might be to try and turn the situation around. However, to put a child into that relationship without support could compromise and endanger the child. Moreover, a crisis situation was very volatile, and to try to bring about that type of a relationship was extremely difficult. Number 2011 CHAIR JAMES explained she knew of a situation where a child was too embarrassed and more concerned about the effects on the parents to talk to them. She asked Dr. Nakamura, if one child was saved, and three were lost, what was the balance? Number 2046 DR. NAKAMURA replied decisions were made based on the greatest gain. Fortunately, the majority of the children already had this relationship with their parents-a law was not needed to bring this about. And, those that did not would be hurt. There were 11,000 deliveries per year in Alaska and roughly 4.5 percent were from children under 17. Nationally, 40 percent of young woman had an abortion. Number 2108 REPRESENTATIVE IVAN stated there was an extended family system in the rural communities to protect foster children. He cited the Indian Child Welfare Act was established so that the village council could represent some of the children being discussed today to ensure their safety. The rural communities were not as helpless as some people might think. He expressed his support of HB 37 as a result of his own upbringing. He believed that families should take care of themselves and their children. Number 2197 DR. NAKAMURA replied there was a wonderful extended family in the rural communities. It was not uncommon to find a child being raised by a cousin or an aunt. The mandate in the bill, however, would not allow the extended family members to work with the child. The legal parent would be responsible. This would aggregate any sense of confidentiality because the real parent would need to be identified. Number 2229 REPRESENTATIVE IVAN stated he disagreed with Dr. Nakamura. If the extended family was not involved, then the village community would provide legal representation wherever possible. That was the basic foundation of the village tribal government's responsibility. He saw HB 37 as an option to parents. Number 2267 CHAIR JAMES asked Dr. Nakamura if he was concerned about the children contacting parents when it might not be a good idea? And, if he was concerned about the judicial by-pass being intimidating to a child in comparison to going to an abortion clinic for support? She did not see that the bill would force a child to go to his parents unnecessarily because of the judicial by-pass. It was another choice for the child. Number 2338 REPRESENTATIVE KELLY replied Representative James was exactly correct. Others, such as, school counsellors in the past had encouraged children to seek an abortion without notifying the parents. Those counsellors would still be available. "What brings the children to the court, will probably be the same thing that brings them to the abortion clinic. And, that is a counsellor, a teacher, a school nurse or what not." He did not think a child would go through this process alone. TAPE 97-9, SIDE B Number 0001 DR. NAKAMURA commented that a normal delivery was more dangerous than an early abortion. Number 0026 REPRESENTATIVE ELTON explained he had a unreasonable fear of doctors and attorneys. "This is an incredible threshold question for a very young person to have to choose-do I tell a family member that might hit me, or do I go to an attorney or put myself in the hands of attorneys that I don't know and don't know anything about?" He asked Dr. Nakamura if he was concerned of more instances of young women in the hospital due to illegal abortions as a result of parental consent? Number 0080 DR. NAKAMURA replied, "That's correct." Number 0082 CHAIR JAMES stated she believed there might be some families healed over this piece of legislation. That was based on her practical experience as a foster parent. Number 0100 REPRESENTATIVE BERKOWITZ asked Dr. Nakamura if he knew how many young woman died from an illegal abortion in Alaska last year? Number 0106 DR. NAKAMURA replied, "None."
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