Legislature(1997 - 1998)
02/13/1997 08:06 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 0434 KRISTEN BOMENGEN, Assistant Attorney General, Human Services, Section, Civil Division, Department of Law, was the first person to testify in Juneau. She was here today to primarily address the legal issues raised by HB 37 and the Department of Law's interpretation of the protection of privacy under the state's constitution. The current provision in statute was not enforceable because of rulings from the U.S. Supreme Court. The judicial by- pass had been adopted by some states in order to make the restricted access meet the constitutional requirements. And, under it had been effective in some states. It would not remain enforceable under the test of the Alaska State Constitution, however. The conclusion came from a study of state jurisprudence in this area. She cited the states of Florida and California where parental consent was not enforceable because it was considered unconstitutional. The California case was in an appeal status now, however. Consequently, the general status of consent provisions remained uncertain. And, in the states where stronger privacy protections were afforded the citizens, the laws had been unenforceable. The department believed that an Alaskan court would find that a minor had a fundamental right to privacy which was affected by this law. It also believed a court would find that the interest of the state would be compelling and legitimate. However, to meet a constitutional challenge the state would be required to demonstrate that the consent requirement would not place an undue burden on a young woman and that the state's interest would be furthered by the parental consent requirement. This had been difficult for other states to demonstrate because the courts had not found that this type of provision improved family relationships that had already deteriorated, for example. Another issue was the protection of the health of the minor. Young women today were very sophisticated about their own medical needs. The court would have to weight that against the potential that a minor might delay the procedure or might seek an illegal remedy because she was uncomfortable going to her parents. In California, the evidence was found to be overwhelming that the state was not able to demonstrate that this means advanced its interests. MS. BOMENGEN further stated that the department believed it would be difficult for many young women to access the judicial by-pass process in the rural areas. Therefore, the state would be required to demonstrate that genuine access was available. Number 0613 MS. BOMENGEN further stated that this law had been characterized as one that would pull the medical procedure into conformity with all other medical procedures that required parental consent. "In fact, it does the opposite," she declared. "It makes this an exceptional medical procedure in which a medical practitioner has to consider potential criminal penalties and extraordinary tort liability when making a decision with his or her patient." The consent requirements related to ear piercing, for example, were not directly addressed in state law. It was considered a general liability concern for individuals offering the service. Medical practitioners had some leeway to consider the needs of the minors and the needs of the parents in deciding to provide medical care in certain circumstances. Therefore, this bill created a different burden for this medical procedure with regards to parental consent. Number 0670 MS. BOMENGEN referred to Section 3 of the bill and explained it created a new cause of action for tort liability for physicians. She stated it would be appropriate to look at the new action in light of the fact that the legislature was looking at tort reform. Number 0695 REPRESENTATIVE DYSON asked Ms. Bomengen, under existing law, what made this procedure protected under the privacy act? Could I infer that under existing law because of our privacy provisions in the constitution that really a minor does not have to have parental consent for any surgical procedure? Number 0721 MS. BOMENGEN replied under existing law there was a flexibility afforded to a physician and a minor patient regarding parental consent. Parental consent was preferable and practitioners preferred it for liability reasons. When in fact, the law recognized that there might be instances when parental consent was unavailable or not forthcoming. At that point, it became a matter for the patient and the doctor to consider the best interest of the patient and the parents and to make a decision to the best of his or her ability without considering criminal penalties. The procedure of abortion was protected under the federal constitution as a matter of privacy. The United States Supreme Court ruled that parental consent was not constitutional so the state of Alaska needs to comply with the law of the land. Number 0798 REPRESENTATIVE DYSON asked Ms. Bomengen if he could infer that the federal law allowed for any surgical procedure on a minor without parental consent? Number 0809 MS. BOMENGEN replied, "I don't know what the federal law in itself states on this issue." The state law did not prohibit the offering of medical services except under the condition of parental consent. It did not invoke criminal penalties or tort liabilities. There could be other liabilities, she stated, that a doctor could face under civil law. However, it was not a case where there was an outright prohibition as HB 37 called for. Number 0854 REPRESENTATIVE DYSON said he still did not understand why under existing law that the surgical procedure of an abortion had privacy protection while others did not, for minors. Number 0865 MS. BOMENGEN replied she could answer that questions conclusively. It had been addressed by the U.S. Supreme Court; the state had to take its guidance from that decision. She was not aware of other surgical procedures that the court had addressed other than in the realm of parents practicing christian science methods, for example. Number 0901 CHAIR JAMES asked Ms. Bomengen what U.S. Supreme Court decision was she referring to that gave abortion special protection? Number 0919 MS. BOMENGEN replied it was the Planned Parenthood v. Danforth court case. She would reply with more specifics later. Number 0927 CHAIR JAMES stated this whole issue had nothing to do with abortion. The issue had to do with parental rights. She saw a great disaster in this country because the government felt it had a better handle on children than the parents. She would like to know why there was privacy with this issue-abortion-and no privacy with other issues. Furthermore, it was not a private issue according to society because it was on television every day. Number 0973 REPRESENTATIVE BERKOWITZ commented that testimony indicated there was privilege communication when a juvenile was being treated for a sexually transmitted disease. He asked Ms. Bomengen if that was accurate? Number 0986 MS. BOMENGEN replied, "Yes, it is accurate." There was a provision in statute that specifically addressed the treatment of sexually transmitted diseases. It also addressed treatment that might come outside of that realm, in which, parental consent was not forthcoming. Number 1008 REPRESENTATIVE BERKOWITZ asked Ms. Bomengen if there were any other procedures where parental notification was not required? Number 1021 MS. BOMENGEN replied no immediate thing came to mind. The general rule was not that parental consent was mandatory in all cases and that a physician would face criminal and tort liability if he did not secure parental consent. The general rule was that when a minor sought medical care, the practitioner should make an effort to secure parental consent. But if a parent was not available, and consent was not forthcoming, then the practitioner and the patient should weigh the interest of the patient and the parents and proceed to the best of their judgement. Number 1065 CHAIR JAMES stated there was no provision in the law at this point in time that a physician ever had to get parental consent. "It's not a shall, it's a maybe should, but not a shall." Was that a correct summarization? Number 1084 MS. BOMENGEN replied she would not want to characterize it in quite that way because there is a stated preference in the law that parental consent be obtained; that efforts should be made to obtain parental consent. "You're correct in stating that it's not mandatory. It is not worded as a `shall.' It's not an absolute necessity that a parent be notified if a minor is seeking some sort of treatment." There were considerations that a physician might look at in order to determine if treatment was appropriate without consent. Number 1119 CHAIR JAMES wondered if emergency care was an example. She further wondered if the bill was broad enough. She reiterated this whole issue was the rights of parents. She had an aggressive attitude about this because of her personal experiences as a foster parent. She reiterated this was not just an abortion issue, it was a parental rights issue. "I think we need to lead our state back into the direction of giving parents more control over their children." Number 1164 REPRESENTATIVE ELTON stated a family was both the parents and the children. In this instance, the government was telling the child element of the family what she must do. Therefore, this bill was an intrusion of the government in that portion of the family. Number 1192 CHAIR JAMES replied the government should not tell the children what to do. The government should have the parents tell the children what to do. "That's what we're doing in this bill; is saying that the parent needs to tell the child, not the government have the child tell the parent what they're going to do." Her belief on this issue had absolutely nothing to do with abortion. It had to do with whether or not parents were in charge of their children, or whether or not the government was in charge of the children. Number 1245 MS. BOMENGEN stated the provisions in statute were constructed so that they recognized the real world problems that individual minor patients faced. That included the issue of seeking treatment for sexually transmitted diseases, for instance. And, looking at the reality of what types of discouragements there were for the child seeking that type of treatment, and what the public health responsibility would be for the state. In a general context, it acknowledged the position of a physical when he or she was confronted with a minor seeking medical treatment. Number 1301 CHAIR JAMES stated she understood the position of the physicians. A physician felt he or she was obligated to the needs of the patient. It did not relate to the issue of parental rights, however. Number 1338 CHAIR JAMES asked Ms. Bomengen if getting a 13 year old girl pregnant was illegal? If a 13 year old kid got her pregnant then it was misbehavior and not an illegal behavior. However, if a 16, 17, 18, 20 year old or a family member got her pregnant, then it was an illegal act. She wondered if the perpetrator would be punished if the parents were not allowed to be involved. Number 1452 MS. BOMENGEN replied a countervailing consideration went to the concern of victim's rights. What type of imposition did this put on a young girl to come forward and pursue a criminal remedy? Some consideration needed to be given to the minor. Number 1488 CHAIR JAMES stated the parents were every bit a victim as the child in this scenario. "That's my point. The child is part of a family. The child is not out of a family until it reaches its maturity or emancipation. The idea that the child was out there with freedom to do what he wanted with government protection--the only government protection was for abuse, and to not separate those two issues was distressing." Number 1520 REPRESENTATIVE BERKOWITZ asked Ms. Bomengen if the Department of Law attached a fiscal note to this bill? Number 1562 MS. BOMENGEN replied there was no fiscal note submitted by the Department of Law. It was a general practice not to submit a fiscal note for anticipated constitutional challenges because there was the chance it would not be challenged. She believed, however, that this bill would be challenged. Number 1615 REPRESENTATIVE ELTON stated he had two legal opinions from private attorneys. He wondered if there was a legal analysis from the Department of Law. MS. BOMENGEN stated she would put her notes into a memorandum format. CHAIR JAMES opened the committee meeting up to the teleconference network. Number 1669 SHARYLEE ZACHARY was the first person to testify via teleconference in Petersburg. She was the mother of three daughters. In the state of Pennsylvania, the rate of abortions went down because of a parental consent provision, and the growth of crisis pregnancy centers around the state. This indicated that parental consent did make it possible for families to work together through a pregnancy situation. And, that the centers were working with the child through the pregnancy by finding the resources associated with bringing a child to full term. Usually the parents had the best interest of their children at heart, she stated. They had the best maturity to sort through what was best for the child and not to railroad the child into a quick fix situation that ultimately became financially beneficial for someone else. She appreciated the comments of Chair James surrounding the issue of not separating the child from the family. There were abusive situations, however, where a separation was needed. But, a judgement should not be made based on the unfortunate few. Number 1892 ROBIN SMITH was the next person to testify via teleconference in Anchorage. She stated dealing with an unwanted pregnancy was extremely difficult. Unfortunately, in the U.S. when a woman became pregnant there was only one acceptable choice-to have the child and become a good mother. An abortion was considered a heinous offense and society did not accept that giving up a child was a wonderful, loving act. "We prosecute parents who want anonymity and abandon a child on someone's door." She asked, "What position do we put women in who have an unwanted pregnancy?" If a woman felt threatened her actions could become extreme. She cited the unwanted grandchild of Representative Jerry Sander's who died of starvation, as an example. The parents wanted to help their older children through their desperation, but it did not happen. Even in good families, the communication process was not necessarily there. "You cannot order family interaction." She understood the intent of the legislature, and she prayed for better family communication. She preferred birth control or abstinence to abortion. But, when an abortion was not readily accessible the results were dangerous back alley procedures. The way to reduce abortions was to reduce unwanted pregnancies. "I implore you to spend your efforts in this direction." Research indicated that the vast majority of Americans supported more money spent on family planning. "Please use your religious convictions for the common good and address the prevention of unwanted pregnancies and not the consequences." The record reflected the arrival of Representative Al Vezey at 9:35 a.m. Number 2059 JOHN COGHILL JR. was the next person to testify via teleconference in Fairbanks. He approved of HB 37. It was good public policy because it encouraged parental responsibility. He cited in statute the state held the parent accountable in almost every area of life even for emancipated children. The state was assuming a responsibility that really was the parent's right and responsibility. He suggested amending it to the age of 18 like a bill in the Senate. Moreover, the family needed to be protected. The Alaska State Constitution gave the basis for the family to carry that responsibility. However, there was a shift in the definition of family. The bill would at least give more weight on the responsibility of families. "I hope you folks stick with it. I know it takes a little courage. I know it goes against the political correctness of liberalism. Don't be afraid of what the Supreme Court is doing. Allow the legislature to carry its weight of the balance of the check and balance system." Number 2236 GERALD FINKLER was the next person to testify via teleconference in Fairbanks. He was a college student. He saw the concerns of parental consent. He also saw that the benefits outweighed the reasons for the concern. Number 2278 DEBBIE STEELE was the next person to testify via teleconference in Ketchikan. She concurred with the testimony of Robin Smith in Anchorage. She was opposed to HB 37. "We cannot legislative family structure." Protecting the health of minor women needed to begin before the unwanted pregnancy. None of us believed that abortion was the answer. It was a tool that had been used, but it was not the answer. The minor should be able to have a choice. There were circumstances that most of us would not understand that would prevent a young girl from feeling safe from telling her parents. That was a terrible state to be in, but it was the truth. She urged the committee members to vote against HB 37. "It's not an issue that needs to be dealt with in the legislature." It was between a woman, her physician, her family-hopefully-but it doesn't belong in the legislature." Number 2448 KARI ROBINSON, Board Member, Juneau Coalition for Pro-Choice, was the next person to testify in Juneau. The coalition was opposed to HB 37. The sponsor claimed that the bill would promote communication and parental involvement. TAPE 97-13, SIDE A Number 0001 MS. ROBINSON further stated that the American Academy of Pediatrics opposed parental consent laws. These laws resulted in later and riskier abortions. The AMA found that parental notification laws increased the gestational age at which the induced pregnancy termination occurred increasing the risk. The American Academy of Pediatrics had taken the position that legislation mandating parental involvement did not achieve the intended benefit of promoting family communication. But, it did increase the risk of harm to the adolescent by delaying access to appropriate medal care. The facts were that health care providers did encourage teen to talk to their parents of which most teen did. Prior testimony indicated that this type of law affected those young women who could not tell their parents. They had important reasons for not telling their parents-usually abuse. To involve the parents could put the teen at further risk of harm. No matter how loving and caring a family was there was no guarantee that a daughter would go to her parents if she found herself pregnant. And, the tragic result of denying access to health care for teens resulted in unsafe and illegal abortions. The legislation did not promote the health and safety of young women, it put them at greater risk. The judicial by-pass prevents a formidable barrier to young women. It did not provide an accessible and confidential alternative. Its only effect was to hinder a minor from obtaining an abortion. She reiterated HB 37 put young women's health and safety at risk. While unconstitutionally restricting a women's right to choose. Number 0229 BRAD WHISTLER, Health Program Manager, Central Office, Division of Public Health, Department of Health and Social Services, was the next person to testify in Juneau. He distributed to the committee members three handouts. The first was a list of national organizations that opposed similar legislation that was before Congress in regards to Title X. The second was an editorial on a study addressing the relationship between abortion and breast cancer. The study did not find a link between breast cancer and abortion. It also addressed the disclosing and reporting issue of an abortion that would contribute to the results of a study. The third was an article from the American Journal of Psychiatry titled, "The Psychological Sequelae of Therapeutic Abortion-Denied and Completed." It concluded that there was not a link between an abortion and depression. When there was a link it was found to be related to prior incidents in the woman's life. CHAIR JAMES announced she was ready to move the bill from the House State Affairs Standing Committee. The next committee of referral was the House Judiciary Standing Committee. She called for a motion. Number 0413 REPRESENTATIVE DYSON moved that CSHB 37(STA) move from the committee with individual recommendations and attached fiscal note(s). REPRESENTATIVE ELTON objected. He called it a procedural objection. The bill was advertized for public hearing on Saturday, February 15, 1997. If the bill was moved today the public would be denied their opportunity to testify. CHAIR JAMES replied she understood the concern of Representative Elton. The Saturday meeting was cancelled anyway because of other things. She reiterated the next committee of referral was the House Judiciary Standing Committee where testimony would be taken. Number 0476 REPRESENTATIVE ELTON further stated that he was bothered by the motion because he planned on having debate in the committee on the bill. He was not prepared today for debate. It had been indicated to him that the bill might not even be moved out of the committee on Saturday. He would be ready for Saturday. "Quite frankly, Madame Chair, this process distresses me. I don't think it is fair to the public and I don't think, frankly, it's fair to me." Number 0515 CHAIR JAMES thanked Representative Elton for his concerns. She disagreed, however. She believed there had been a good hearing on this bill. The discussion had ensued during the testimony and additional discussion would not make any difference. Number 0533 REPRESENTATIVE BERKOWITZ also objected to the motion. "I think what this does is-and I say this with all due respect-but it gives the appearance that these proceedings are a charade if we're not even allowed to discuss our views." It was clear what his views were at this point, but he would be very interested in what the other members of the committee had to say on this subject before casting a vote. Likewise, he would like to think that what he would have to say would impact the other members. "If we deprive this bill of substantive debate, that does an injustice to the process." Number 0577 REPRESENTATIVE DYSON withdrew his motion. He agreed with Chair James that the debate would not change the votes, but he wanted to respect the process so that the members could debate amongst themselves. He very much respected the efforts of Chair James to move the bill forward. Number 0609 CHAIR JAMES replied, "Quite frankly, I don't believe that any amount of argument, any amount of debate, that we haven't already had in the testimony is going to change a vote in this committee." Her goal was to move legislation through the process. She respected the withdrawal of the motion-nevertheless-made by Representative Dyson. Number 0659 REPRESENTATIVE BERKOWITZ asked Chair James if he could make a motion to table the issue until Saturday, February 15, 1997, or until Tuesday, February 18, 1997. CHAIR JAMES replied she was not interested in tabling the bill. She was interested in moving it out of the committee or not moving it out of the committee. She would prefer to move it out. She yielded to the committee members for a motion. Number 0687 REPRESENTATIVE VEZEY moved that CSHB 37(STA) move from the committee with individual recommendations and attached fiscal note(s). Number 0706 REPRESENTATIVE ELTON objected. CHAIR JAMES stated the committee was out of time today. She announced it would meet at 10:00 a.m. on Saturday, February 15, 1997, of which, the committee would debate the issue then move the bill to the next committee of referral. The motion was left on the floor.
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