Legislature(1997 - 1998)
03/11/1997 10:17 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 24
"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."
Senator Sharp introduced the bill and requested testimony from
Senator Leman.
SENATOR LOREN LEMAN, SPONSOR SB 24, established his reasons for
introducing the legislation. He voiced that a similar bill (SB
105) was debated in the prior session on the Senate Floor. He
explained that SB 24 did not address the morality portion of the
abortion debate, but instead highlighted the issue of parental
consent. He stated that the proposed legislation allowed
Alaska's existing statutes regarding abortion for minors to be
enforced. He noted that Alaska adopted a statute stating that a
minor must have consent from a parent to terminate a pregnancy.
He declared that the law was not enforced and had not been
enforced for more than 20 years.
Senator Leman continued that the legislation required a judicial
bypass to make the law enforceable. He believed that the
enforcement of Alaska's parental consent law would provide good
public policy. The concept of judicial bypass was tested at the
Supreme Court of the United States level and found to be
constitutional. He added that President Clinton and his wife
stressed that they would like to see abortions as "safe, legal
and rare." He believed that very little was being done to ensure
less frequent abortions. He opined that SB 24 would accomplish
the goal by getting parents involved in their minor's decisions.
He hoped to succeed in lessening the frequency of abortion.
Senator Leman advocated for the protection of parental rights.
He stated that SB 24 would protect the rights of parents to
raise their own children. He shared a story about a requirement
for his parental signature when his daughter had her ears
pierced. He opined that the procedure of abortion was more
significant than the piercing of ears. He commissioned a poll of
Alaskans, which found that 78 percent of respondents supported
parental consent for abortion. He noted the strong public
support for parental involvement in the significant decision
making process.
Senator Leman stated that another major area was that of the
protection of minors. He noted that minors were often immature.
He quoted a legislative finding: "the capacity to become
pregnant and the capacity for mature judgment concerning the
wisdom of abortion were not necessarily related." He believed
that teenagers would benefit from parental consultation during
the very difficult time in the young person's life when abortion
was in question. He admitted awareness of dysfunctional
families, which was probably how the concept of the judicial
bypass evolved. He contended that most parents loved their
children and wanted to help them through life's most difficult
challenges. The bill allowed parents to be parents when they
were needed most.
Senator Leman revealed another goal of the legislation, which
was reducing teen pregnancies, births and abortions. He pointed
out other states that enacted similar legislation and saw rates
of decline in teen pregnancies, births and abortions. He noted
that the Supreme Court of the United States reviewed the
Minnesota parental consent law. The review included a brief
included in members' packets. The effect of the laws appeared to
be a reduction in the teen pregnancy rate, which was a public
policy goal that was easily endorsed.
Senator Leman offered comment on the fiscal notes attached to
the bill. He noted that the Office of Public Advocacy (OPA)
projected costs of $168 thousand annually. He suggested that the
costs were excessive. He stated that the estimates were based on
flawed assumptions. The first assumption of OPA was that 61
percent of children already involved their parents in decisions
regarding abortions. The suggestion was that the other 39
percent of teenagers who did not talk with their parents would
automatically seek a judicial bypass. He opined that the
reasoning of OPA was counter intuitive. He hoped that the result
of the law would be more children seeking counsel from their
parents. He objected to the fiscal note on the basis of OPA's
estimates of $1500 per case for the costs of a judicial bypass.
Senator Leman addressed the proposed amendment introduced by
Senator Phillips. The amendment lowered the age of consent from
18 to 16. He expressed opposition to the amendment. He believed
that the amendment undermined the purpose of the legislation as
it limited the population affected.
Senator Leman reminded the committee that the existing law in
Alaska required consent for children under the age of 18. He
stated that SB 24 did not alter the existing requirement. He
stated that virtually every state with parental involvement laws
listed the age of consent as 18. He opined that a vote to lower
the age to 16 would result in a weaker parental consent law for
Alaska. He stated that the majority of pregnancies occurred at
ages 16 and 17. He stressed that lowering the age to 16 severely
undermined the reach of the legislation. He believed that if the
age of consent was lowered to age 16, parental authority would
be compromised. He strongly advised holding the age of 18 rather
than changing it to 16.
Senator Leman concluded that the bill provided a common sense
approach that enjoyed broad public support. He expected some
criticism from the public testimony. He requested that committee
members remember that the statutes were viewed as sound public
policy when first passed and they continued to enjoy the same
public support. He noted that other state's parental involvement
laws were passed with broad bipartisan support.
Senator Phillips understood that the amendment lowered the age
of consent to age 16. He pointed out a copy of an article from
the Juneau Empire supporting the bill. The article stated that a
minor under the age of 16 could not use firearms, get married or
receive minor or major medical procedures without parental
consent. He deduced that since abortion was a medical procedure,
it required parental consent.
Senator Leman responded that juvenile laws in Alaska were well
established and distinctions were made for varying ages for
varying issues. He stressed that the real issue was that of
parental involvement versus pro-life or pro-choice.
Senator Adams stated that the sponsor was "off-base" regarding
the proposed legislation. He found the bill to be
unconstitutional as written. He asked about the difference
between the original bill and the Committee Substitute (CS).
Senator Leman responded that the difference included a provision
from the court on the judicial bypass that would be available
from each magistrate. The provision was made to alleviate
Senator Hoffman's concern in the prior year. He stated that the
Alaska Court System would conduct an expedited procedure for
access to the judicial bypass procedure.
Senator Leman pointed out page 7, line 22 where the judiciary
committee inserted the portion regarding the forms for judicial
bypass provided at magistrate's offices.
Senator Sharp asked about section 6, the repealer.
Senator Leman replied that he would access the information and
then respond.
Senator Adams asked about the planned course of action for the
legislation if sufficient votes were not available.
Senator Leman responded that the rule change, in all cases
provided for an expedited process without charge to the minor.
He added that the procedures listed in the legislation were
promoted and he could not imagine why a person might vote
against the court rule changes. The changes would simplify the
process for the minor. The court would continue to have the
ability to make the rule changes itself.
Senator Adams maintained that the bill was unconstitutional.
Senator Leman voiced that Senator Adam's statement could not go
unchallenged. He assumed that the claim was based on the Alaska
state constitution. He noted that the same question was
litigated in other states, such as Florida who ruled that the
privacy clause in their constitution would cause this type of
statute to be deemed unconstitutional, but in California the
court ruled opposite. He mentioned that legal scholars
understood the section of law and argued forcefully that the
privacy clause did not cover minors to the extent that parents
could not be in charge of their children's lives. He believed
that a reasonable meeting of the law would conclude that there
was a distinction between minors and adults and that the law, as
crafted would be constitutional.
Senator Pearce expressed a concern about the bill, which was
found on page 5, lines 24-31 addressing the test that the court
must meet for judicial bypass. She requested a study in the
early 1990s regarding teen birth rates in Alaska. The study
showed that three teenagers per day gave birth in Alaska, with
one mother per month under the age of fifteen. She continued
that more than 1200 Alaskan babies were born to teenage mothers
in 1991 and 1992. The research was updated on a semi-annual
basis and the findings indicated that the numbers continued to
grow. She added that 33 percent of teenage births in Alaska in
1991 were to mothers under the age of 19. She agreed that many
teenagers were at risk. The risk factors for teen pregnancy
included poor family attachment, inattentive parenting and
family management problems. She opined that the risk factors
were problems of the family, not necessarily of the child.
Senator Pearce continued that one of the major risk factors was
a history of physical, sexual or emotional abuse. Poverty was
another risk factor. The environment that the child was raised
in led the child to make poor decisions. She believed that the
discussion ought to focus on the root of the problem, as
children with high self-esteem would say no to sex. She
respected Senator Leman's personal feelings about abortion. She
admitted that hers were different, but she expected the same
level of respect. She expressed concern for the young mothers
and fathers affected by the law.
Senator Pearce continued that families in rural and urban Alaska
often approved of young women's pregnancies. Teen pregnancies
kept young women at home. She queried how the young mothers
would find jobs to support their children with cuts in childcare
assistance. She asked what would happen to the baby that was
born. She noted that many of the young mothers were welfare
children. The dependency cycle continued.
Senator Pearce revisited page 5, lines 24-31 which addressed the
pregnant teen's access to a judicial bypass. The Committee
Substitute (CS) stated that the judge could allow the judicial
bypass with a court finding of clear and convincing evidence of
a pattern of physical, sexual or emotional abuse by one or both
of the minor's parents or by the guardian or custodian, or when
the consent of the parent or guardian was not in the best
interest of the plaintiff. She interpreted that the abuse must
be dealt by the parent. If a grandparent or uncle was the
abuser, the judge could not grant the judicial bypass. She
stated that she wished for every Alaskan child to have an
environment that invited sharing all important information with
parents, but she admitted that was not the case. She advocated
for a bill with a judicial bypass for young women whose abuse
was caused by someone outside of the family as well. She
believed that the legislation might accidentally place teenagers
at even greater risk.
Senator Sharp opened public testimony.
Senator Donley interrupted with a question about the intention
of page 5, lines 24-31.
Senator Leman agreed that the community ought to provide greater
support for girls facing the challenge of crisis pregnancy. He
pointed out line 27, which stated that if the court found that
consent of the parent or guardian was inappropriate then the
bypass would be granted. He opined that the language addressed
Senator Pearce's concerns. He noted that the language was
consistent with that found in the Ohio statute, which was deemed
constitutional by the Supreme Court of the United States. He
believed that the definition section of the bill was more
complete than the one written in 1970.
PAULINE UTTER, ANCHORAGE, ABORTION RIGHTS PROJECT (via
teleconference), testified that abortion was legal and should
remain so. She stated that the bill's purpose was to reduce a
woman's right to choose.
VIRGINIA PHILLIPS, SITKA, NATIONAL RIGHT TO LIFE (via
teleconference), testified in support of SB 24. She advocated
for support of pregnant women. She stated that the risk of
breast cancer increased when a woman aborted her first
pregnancy. She noted that most male relatives who were
responsible for the teen pregnancy advocated for abortion. She
stated that parents should be responsible for their children.
PETE HALGRAN, SITKA, CHAIRMAN, REPUBLICAN PARTY OF ALASKA (via
teleconference), testified in support of SB 24. He believed that
the legislation provided a necessary and protective tool for
Alaska's children. He pointed out that America had the highest
teen pregnancy rate of industrialized countries. He stated that
families had true compassion for their children. He noted that
the bill was in compliance with the efforts of the Republican
Party of Alaska.
MS. ZACHARY, PETERSBURG (via teleconference), testified in
agreement with Senator Pearce's statements regarding focus on
the root of the problem. She stated that the bill focused on
girl children versus women. She agreed with parental rights to
protect, counsel, guide and support the minor children. A vast
majority of families no longer understood how to work through
the crisis of life because the government had taken the
responsibility out of the family home.
RUTH EWIG, FAIRBANKS, INTERIOR RIGHT TO LIFE (via
teleconference), testified in support of the legislation. She
stated that parental rights must be reestablished. She believed
that parents were responsible for their minors. If minors were
injured the parents were contacted. If a parent was approached
after a minor died under anesthesia, they would be devastated.
She stated that it was not the responsibility of the legislature
to guess whether parents would behave responsibly.
RUPE ANDREWS, ALASKA LEAGUE OF WOMEN VOTERS, testified in
opposition to SB 24. He expressed concern that the judicial
bypass was a "stretch of the imagination," since it assumed that
teenage girls could readily access the legal system in the
state. He pointed out page 4, line 9, which contained ambiguous
language. He stated that a young girl who was traumatized by a
pregnancy could access the legal system for the judicial bypass.
He stated that the League of Women Voters surmised that the bill
presented bad social and public policy because it added
additional trauma to the teenager's already difficult situation.
He opined that the policy would not reduce teenage pregnancies.
He stated that the bill would not improve familial
communication.
DR. PETER NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH,
testified that parents should be involved in their children's
health care. He mentioned Senator Leman's quoted statistic that
61 percent of the pregnant minors accessed parental consent
prior to seeking abortion. Another 20 percent accessed a member
of the clergy, teacher, or adult family friend. Of the remaining
children, one-third lived in abusive families with situations
that created the possibility of violence and coercion if the
child was forced to return to the environment. He did not
believe that a law forcing a child back into an abusive
situation was a healthy law. He added that acquiring a judicial
bypass in the state was difficult to obtain. He mentioned the
question regarding parental consent for ear piercing. He noted
that the consequence of bypassing the consent procedure was more
significant in the case of abortion than in the case of an ear
piercing. He stated that it would be bad medical practice to
limit the availability of the abortion in a safe facility by a
trained professional. While a friend could pierce a person's
ears, having a friend induce an abortion was dangerous.
Dr. Nakamura responded to the statement that abortions were
expensive. He agreed, but noted that carrying an unwanted
pregnancy to term was more expensive. He responded to the
statement that the incidence of breast cancer increased
following termination of pregnancy. He cited a study from the
New England Journal of Medicine including one and one-half
million women in Denmark that demonstrated no increase in breast
cancer. He stated that the editorial comments demonstrated why
some of the previous studies were wrong. He stated that there
was no increase in breast cancer following abortion procedures.
He commented on the safety of the abortion procedure, which he
opined was safer than carrying a pregnancy to term.
DAVID ROGERS, ALASKA WOMEN'S LOBBY, testified in opposition to
the legislation. He agreed that minors should talk with their
parents prior to making a decision about a teenage pregnancy. He
stated that some teenagers will not talk with their parents
likely because they live in a home with emotional and physical
violence or because the pregnancy was the result of sexual abuse
of a family member. He agreed that the courtroom was
intimidating for young women in the situation. He stated that
there was likelihood that the children would seek abortions in
other states or in an unsafe environment. According to the
American Medical Association, a law such as SB 24 does not
increase the likelihood that a minor would talk with their
parents about teen pregnancy. The potential and unintended harm
that might result from the legislation clearly outweighed the
good facets such as encouraging parental communication and
lowering birth and abortion rates. A comprehensive pregnancy
prevention program was necessary. He believed that the
legislation violated a teen's constitutional right to choose.
Senator Phillips asked a question of Pauline Utter. He asked
what age a girl becomes a woman.
Ms. Utter stated that she could not determine a specific age.
Senator Phillips asked Pete Halgran about the Republican
Platform and its age limit.
Mr. Halgran responded that the age that a girl becomes a woman
was 18.
Senator Phillips asked Dr. Nakamura about the percentage of
women under the age of 18 who elect for abortion in Alaska. He
asked how many live in urban versus rural settings.
Dr. Nakamura responded that no mandate to report abortions
existed in Alaska. He offered to research the Medicaid
statistics and provide further information to the committee.
Senator Pearce stated that statistics were not available. She
cited numbers earlier in the hearing regarding abortion
projections.
Dr. Nakamura agreed that projections were difficult to make and
were often calculated on a national level and then transferred
to the state. He repeated that he could not provide absolute
numbers.
Senator Phillips wondered how many abortions occurred under the
circumstances cited in the rural areas regarding limited
communication or court room access. He wondered whether the
percentage would make the information more valuable.
Senator Pearce stated that the teen pregnancy rates that she
spoke to were calculated using census information from the
Alaska Department of Labor and Workforce Development (DLWD) and
from the Alaska Bureau of Statistics. She stated that she could
collect data on pregnant teens along with statistics regarding
the location of the children born in the state. She voiced that
abortion statistics were unavailable because they were not
recordable.
Senator Phillips interjected that abortion statistics were
related to his question. If the proposed legislation was
perceived as interfering with the current process, then the
discussion was valid.
Senator Parnell stated that the judiciary committee heard that
the rural girls who became pregnant found communities that
provided abortions. He stated that the communities that provided
abortions also had court houses. Doctors were not performing
abortions in communities without access to the court system.
Dr. Nakamura agreed that abortions were not conducted in rural
areas. He declared that the judicial system was intimidating. He
could not imagine kids accessing the judicial system on a
voluntary basis.
Senator Parnell agreed that the legal process was intimidating.
He added that the process of visiting a doctor was also
intimidating. He understood that when a pregnant girl flew in
from rural Alaska, she was often met by a social worker or
member of a non-profit agency that helped walk her through the
process. He suggested that if the support was available for the
doctor's office, it would also be available for the court
process.
Dr. Nakamura responded that two intimidations were worse than
one.
Senator Pearce asked if the members of the welfare reform bill
remembered if the grandparental responsibility section was
enacted.
Senator Parnell replied yes.
Senator Pearce asked how the section worked.
Senator Parnell replied that the minors would return to live
with their parents.
Senator Sharp asked Senator Phillips if he wanted to introduce
his amendment.
Senator Phillips MOVED Amendment 1.
[Undecipherable] OBJECTION
Senator Phillips stated that the amendment reduced the age in
the legislation from 18 to 16 requiring parental consent for
abortions.
Senator Sharp asked for a role count.
A roll call vote was taken on the motion.
IN FAVOR: 4
OPPOSED: 3
Amendment 1 was ADOPTED.
Senator Donley examined page 5, which was connected to page 4,
lines 26-[undecipherable]. He opined that anytime a series of
"or" was found in a statute, a question was raised. He wondered
about drafting standards regarding interpretation. He asked if
the bill drafter was in the room. He stated that it was not
easily understood whether the clear and convincing standards of
evidence applied to both of the clauses or only to the first. He
expressed concern about the appropriateness of the standard.
Senator Sharp restated the question about whether clear and
convincing evidence applied to the following "ors."
MIKE PAULEY, STAFF, SENATOR LEMAN, responded that the question
had not been posed to the drafter. He opined that the clear and
convincing standard applied to both statements on either side of
the "or." He requested a drafter's opinion regarding the
language. He stated that the legislation was modeled after a
parental consent statute passed in Ohio, which was tested by the
Supreme Court of the United States and held to be
constitutional. The clear and convincing evidence standard was
part of the Ohio law. He was not aware of any difficulties
caused for Ohio. The question deals with the method that a court
would interpret the evidentiary standard on the two sections
located on either side of the "or." He suggested requesting the
drafter's opinion.
Senator Donley explained that his question did not address the
constitutionality issue, but instead the interpretation of the
court of the evidentiary standard on the two sections on either
side of the "or." He asked Mr. Pauley if he knew about the
court's interpretation in Ohio.
Mr. Pauley responded that he did not know the answer to the
question. He offered to find an answer.
Senator Donley suggested that the legislature could make a
drafting change to clarify the intention for the court. He was
not sure that the clear and convincing standard was the best
standard, but he opined that the committee ought to be very
specific considering that the statute would be litigated out.
Senator Parnell interpreted that clarity was Senator Donley's
intention when posing the question. He MOVED that page 5, line
27 following the third "or" the words "by clear and convincing
evidence" be inserted.
Senator Donley agreed with the solution. He proposed discussion
regarding the appropriateness of the statement, "clear and
convincing standard."
Senator Pearce relayed that she had asked about the definition
of "clear and convincing standard" during the judiciary
committee's hearings on SB 24. The representative from the
Department of Law (DOL) could not provide a description of the
standard at the time. As a result, she remained confused about
the definition.
Senator Sharp restated Amendment 2 by Senator Parnell to add
after the third "or" on line 27 "the court finds by clear and
convincing evidence that the."
Senator Parnell explained that the amendment clarified the
language and provided the opportunity for discussion regarding
the debate about "preponderance" versus "clear and convincing."
Senator Donley supposed that committee proceedings would not
prove persuasive to a court of law. Courts tend to look to floor
action. He suggested that a court might interpret the action as
stating that the committee did not want the clear and convincing
standard to apply to the legislation. He opined that courts
often reviewed legislative records seeking language to support
their intentions. He advocated for clarity of intention in the
bill's language.
Senator Donley stated that he would probably vote against the
amendment because he was not convinced that the clear and
convincing standard was appropriate.
Senator Sharp stated that he planned to hold the bill in
committee because another senator requested time to draft an
amendment.
Senator Pearce requested testimony from an expert on clear and
convincing standards for further explanation to the committee.
She wondered how a judge could arrive at clear and convincing
evidence and continue to retain confidentiality without a
discussion with the abusive parent.
Senator Parnell stated that the minor female could stand in
court and swear that she came from an abusive home with parents
causing the abuse. Without additional adverse witness, the
minor's testimony was the only testimony available. He added
that a judge must weigh the credibility of the witnesses and if
the minor was the only witness, and then clear and convincing
became the best standard.
Senator Parnell WITHDREW Amendment 2.
Senator Sharp stated that the drafter of the legislation would
be present during the next hearing on the bill to discuss the
meaning of clear and convincing evidence. He noted that two
additional people were requesting an opportunity to testify on
the legislation via teleconference.
BOB LYNN, ANCHORAGE (via teleconference), testified in support
of the legislation.
[UNDECIPHERABLE] PITTMAN (via teleconference), testified in
opposition to the legislation. She disagreed with the spending
of state money on legislation without good purpose.
[UNDECIPHERABLE], DELTA JUNCTION (via teleconference), testified
in support of the legislation.
DEBBIE UNDECIPHERABLE, DELTA JUNCTION, REPUBLICAN PARTY OF
ALASKA (via teleconference), testified in support of the
legislation. She advocated for revisiting the welfare reform
issue.
LORI UNDECIPHERABLE, MATSU, ALASKA RIGHT TO LIFE (via
teleconference), testified in support of the legislation.
Senator Donley asked the sponsor about the guarantee of
confidentiality in court.
Senator Leman responded that the judge was obligated to keep all
information confidential. He referred to page 7, lines 9 through
14, which identified the procedure.
Senator Donley asked if a violation of confidentiality would
constitute a crime.
Senator Leman concurred.
Senator Donley asked about page 5, lines 24 through 31. He
wondered about line 26 where the judiciary version stated
evidence of a pattern of physical, sexual and emotional abuse.
He wondered about the requirement of a pattern.
Senator Leman could not answer the question. He offered to
respond at the next hearing.
Senator Donley suggested that if clear and convincing evidence
of even one incidence of physical abuse might prove appropriate
to allow the option of judicial bypass.
Senator Sharp stated that he would set the bill aside and
revisit questions during the next Senate Finance Committee
meeting. He voiced that the drafter would be available for the
meeting to answer questions. He stated that he would entertain
amendments.
SB 24 was HEARD and HELD in committee for further consideration.
SENATE BILL NO. 41
"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."
SB 41 was SCHEDULED but not HEARD.
ADJOURNMENT
The meeting was adjourned at 11:56 a.m.
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