Legislature(1997 - 1998)
03/07/1997 01:08 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 7, 1997
1:08 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members were present
COMMITTEE CALENDAR
HOUSE BILL NO. 119
"An Act raising the limit on small claims actions to $10,000; and
providing for an effective date."
- MOVED CSHB 119(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 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."
- MOVED CSHB 37(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 65
"An Act relating to partial-birth abortions."
- HEARD AND HELD
CS FOR SENATE BILL NO. 1(FIN) am
"An Act relating to living and working conditions of prisoners in
correctional facilities operated by the state, and authorizing the
commissioner of corrections to negotiate with providers of
detention and confinement services under contract to apply those
conditions and limitations on services to persons held under
authority of state law at facilities operated under contract or
agreement; relating to services provided to prisoners; amending the
definition of `severely medically disabled' applicable to prisoners
seeking special medical parole; amending provisions of the
correctional industries program; and extending the termination date
of the Correctional Industries Commission and the program."
- BILL HEARING POSTPONED
* HOUSE BILL NO. 53
"An Act relating to the authority of the Department of Corrections
to contract for facilities for the confinement and care of
prisoners, and annulling a regulation of the Department of
Corrections that limits the purposes for which an agreement with a
private agency may be entered into; authorizing an agreement by
which the Department of Corrections may, for the benefit of the
state, enter into one lease of, or similar agreement to use, space
within a correctional facility that is operated by a private
contractor, and setting conditions on the operation of the
correctional facility affected by the lease or use agreement; and
giving notice of and approving a lease-purchase agreement or
similar use-purchase agreement for the design, construction, and
operation of a correctional facility, and setting conditions and
limitations on the facility's design, construction, and operation."
- BILL HEARING POSTPONED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 119
SHORT TITLE: INCREASE SMALL CLAIMS JURISDICTION
SPONSOR(S): REPRESENTATIVE(S) HODGINS,Green,Croft
JRN-DATE JRN-PG ACTION
02/07/97 265 (H) READ THE FIRST TIME - REFERRAL(S)
02/07/97 265 (H) JUDICIARY
02/17/97 (H) JUD AT 1:00 PM CAPITOL 120
02/17/97 (H) MINUTE(JUD)
BILL: HB 37
SHORT TITLE: PARENTAL CONSENT BEFORE MINOR'S ABORTION
SPONSOR(S): REPRESENTATIVE(S) KELLY, KOHRING, VEZEY, MULDER, Ogan,
Dyson, Martin, Green
JRN-DATE JRN-PG ACTION
01/13/97 37 (H) PREFILE RELEASED 1/3/97
01/13/97 37 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 37 (H) STATE AFFAIRS, JUDICIARY
02/06/97 (H) STA AT 8:00 AM CAPITOL 102
02/06/97 (H) MINUTE(STA)
02/11/97 (H) STA AT 8:00 AM CAPITOL 102
02/11/97 (H) MINUTE(STA)
02/13/97 (H) STA AT 8:00 AM CAPITOL 102
02/13/97 (H) MINUTE(STA)
02/15/97 (H) STA AT 10:00 AM CAPITOL 102
02/15/97 (H) MINUTE(STA)
02/19/97 394 (H) STA RPT CS(STA) 4DP 2DNP
02/19/97 395 (H) DP: VEZEY, IVAN, DYSON, JAMES
02/19/97 395 (H) DNP: BERKOWITZ, ELTON
02/19/97 395 (H) 2 FNS (H.STA/COURT, H.STA/ADM)
02/19/97 395 (H) 3 ZERO FNS (H.STA/ADM, H.STA/2-DHSS)
02/19/97 406 (H) FIN REFERRAL ADDED
03/05/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 65
SHORT TITLE: PARTIAL-BIRTH ABORTIONS
SPONSOR(S): REPRESENTATIVE(S) KOTT, Kohring, Ogan
JRN-DATE JRN-PG ACTION
01/13/97 50 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 50 (H) STATE AFFAIRS, JUDICIARY
02/06/97 (H) STA AT 8:00 AM CAPITOL 102
02/06/97 (H) MINUTE(STA)
02/07/97 277 (H) COSPONSOR(S): KOHRING
02/18/97 (H) STA AT 8:00 AM CAPITOL 102
02/18/97 (H) MINUTE(STA)
02/19/97 408 (H) COSPONSOR(S): OGAN
02/20/97 (H) STA AT 8:00 AM CAPITOL 102
02/20/97 (H) MINUTE(STA)
02/21/97 421 (H) STA RPT 4DP 1DNP 1NR
02/21/97 421 (H) DP: JAMES, HODGINS, DYSON, VEZEY
02/21/97 421 (H) DNP: BERKOWITZ; NR: IVAN
02/21/97 421 (H) INDETERMINATE FISCAL NOTE (ADM)
02/21/97 421 (H) ZERO FISCAL NOTE (DHSS)
03/05/97 (H) JUD AT 1:00 PM CAPITOL 120
03/05/97 (H) MINUTE(JUD)
03/07/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE MARK HODGINS
Alaska State Legislature
Capitol Building Room 110
Juneau, Alaska 99811
Telephone: (907) 465-2283
POSITION STATEMENT: Prime Sponsor of HB 119
CHARLES "CHRIS" CHRISTENSEN, General Counsel
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501
Telephone: (907) 264-0547
POSITION STATEMENT: Provided testimony on HB 119.
REPRESENTATIVE PETE KOTT
Alaska State Legislature
State Capitol, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Sponsor of HB 65
GEORGE DOZIER, JR.
Aide to Representative Pete Kott
Alaska State Legislature
State Capitol, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Testified on HB 65
BACHAR BEN'ISRAEL
Moose Creek, Alaska
Telephone: (907) 488-8544
POSITION STATEMENT: Testified in support of HB 65
AMY SKILBRED
Alaska Civil Liberties Union
4477 Abby Way
Juneau, Alaska 99801
Telephone: (907) 780-4649
POSITION STATEMENT: Testified in opposition of HB 65
DR. PETER NAKAMURA, Director
Division of Public Health
Department of Health and Social Services
P.O. Box 110610
Juneau, Alaska 99811-0610
Telephone: (907) 465-3090
POSITION STATEMENT: Testified on HB 65
DEBRA JOSLIN, Chair
District 35, Republican Party of Alaska
P.O. Box 377
Delta Junction, Alaska 99737
Telephone: (907) 895-4565
POSITION STATEMENT: Testified on HB 65
BARBARA RAWALT, Financial Chair
District 35, Republican Party of Alaska
P.O. Box 823
Delta Junction, Alaska 99737
Telephone: (907) 895-1946
POSITION STATEMENT: Testified on HB 65
SHARYLEE ZACHARY
P.O. Box 1531
Petersburg, Alaska 99833
Telephone: (907) 772-3681
POSITION STATEMENT: Testified on HB 65
KATHLEEN HOFFMAN
HC 1, Box 131E
Soldotna, Alaska 99669
Telephone: (907) 262-4522
POSITION STATEMENT: Testified in support of HB 65
VIRGINIA PHILLIPS, Spokesperson
American Indians and Alaska Natives
National Right to Life
Sitka, Alaska 99835
Telephone: (907) 747-8024
POSITION STATEMENT: Testified on HB 65
TERESA LUNDY, Medical Transcriptionist
P.O. Box 2975
Sitka, Alaska 99835
Telephone: (907) 966-2204
POSITION STATEMENT: Testified on HB 65
SALLY APOXIDAK
HC33 Box 3188
Wasilla, Alaska 99654
Telephone: (907) 373-7845
POSITION STATEMENT: Testified in support of HB 65
ART HIPPLER, Executive Director
Alaska Right to Life
P.O. Box 873991
Wasilla, Alaska 99687
Telephone: (907) 376-9234
POSITION STATEMENT: Testified in support of HB 65
ERNIE LINE
2645 Whispering Woods
Wasilla, Alaska 99654
Telephone: (907) 376-6709
POSITION STATEMENT: Testified on HB 65
NIKKI SULLIVAN
P.O. Box 20874
Juneau, Alaska 99802-0874
Telephone: (907) 789-2000
POSITION STATEMENT: Testified on HB 65
KRISTIN HOCK
117 Behrends Avenue
Juneau, Alaska 99801
Telephone: (907) 586-2625
POSITION STATEMENT: Testified on HB 65
TRICIA BONNEY, Nurse
9175 James Boulevard
Juneau, Alaska 99801
Telephone: No number given
POSITION STATEMENT: Testified in support of HB 65
TOM GORDY
P.O. Box 34832
Juneau, Alaska 99803-4832
Telephone: (907) 789-3953
POSITION STATEMENT: Testified in support of HB 65
DAVE ROGERS, Lobbyist
Alaska Woman's Lobby
211 Fourth Street, Number 108
Juneau, Alaska 99801
Telephone: (907) 586-1107
POSITION STATEMENT: Testified against HB 65
SID HEIDERSDORF
P.O. Box 20658
Juneau, Alaska 99802-0658
Telephone: (907) 789-9858
POSITION STATEMENT: Testified on HB 65
ACTION NARRATIVE
TAPE 97-32, SIDE A
Number 001
The House Judiciary Standing Committee was called to order by
Chairman Joe Green at 1:08 p.m. Members present at the call to
order were Representatives Con Bunde, Brian Porter, Eric Croft,
Ethan Berkowitz and Chairman Joe Green. Representative Jeannette
James arrived at 1:15 p.m., and Representative Norman Rokeberg
arrived at 1:17 p.m.
HB 119 - INCREASE SMALL CLAIMS JURISDICTION
CHAIRMAN JOE GREEN announced that members would first consider HB
119, "An Act raising the limit on small claims actions to $10,000;
and providing for an effective date." He invited Representative
Mark Hodgins, Prime Sponsor of HB 119, to come forward and address
the committee.
Number 092
REPRESENTATIVE MARK HODGINS advised members that HB 119 would
increase the small claims limit from the current ceiling of $5000
to $10,000. He stated that he introduced the legislation because
he felt small claims cases were an essential part of the community
which enabled people to plead cases without an attorney present,
and receive justice at a level that was not too complicated.
REPRESENTATIVE HODGINS pointed out that the small claims limit had
been raised to $5000 in 1986, and the increase to $10,000 would
reflect higher values in disputes.
CHAIRMAN GREEN pointed out that when considered by the committee
previously, there did not appear to be a problem with the concept;
however, there were concerns expressed by the court system that
such an increase would significantly impact the court system and
increase the fiscal note.
REPRESENTATIVE ERIC CROFT advised members that he was in support of
the concept and asked for Representative Hodgins opinion on why he
felt a limit of $10,000 would be more appropriate than raising the
limit to $7500.
Number 301
REPRESENTATIVE HODGINS felt the a ceiling of $10,000 would provide
the opportunity for someone to argue and get justice at a court
level they felt comfortable with, and allow claims that more
reflect the mid-range car values, snow machines, et cetera. He
noted that the court system would rather increase the small claims
limit in incremental amounts, and he did not see the value of
revisiting the issue in two to five years. Representative Hodgins
pointed out that several people had suggested the limit be raised
to $20,000, which he felt was too much of a jump, but felt
comfortable with a $10,000 limit and hoped members would concur.
REPRESENTATIVE HODGINS noted that if increased to $10,000, the
cases falling within the $5000 to $10,000 range, that would be
heard in a higher court, would be more expensive for the court
system than the small claims court. He stated with respect to the
fiscal note submitted by the court system, that it would be
important to find out if they were correctly shifting the amounts
when considering the cases that would fall under the small claims
court, rather then the district court if the $10,000 limit went
into effect. Representative Hodgins felt that it had to be more
inexpensive to operate a small claims court than it would be to go
up to the district court level.
REPRESENTATIVE CON BUNDE noted that during previous discussions,
the committee had considered increasing the filing fee for small
claims court, and asked Representative Hodgins to respond to that.
REPRESENTATIVE HODGINS advised members he supported user fees and
did not have any particular opinion one way or another. He noted
that the filing fee was currently $25, and it was his understanding
the committee was considering raising the fee to $50.
Representative Hodgins stated that should the committee raise the
fee, he would point out that if they were doubling the small claims
limit, they could double the filing fee amount.
Number 663
CHAIRMAN GREEN asked that Chris Christensen explain to members why
there would be a significant increase in the fiscal note because of
an increase in the small claims limit, and respond to the Sponsor's
statement regarding cases moving from district court to small
claims court because of the increase in the limit.
CHRIS CHRISTENSEN, General Counsel, Alaska Court System, advised
members that the small claims court was important and that it
really was the people's court. He expressed that the Supreme Court
agreed with Representative Hodgins that an increase in the limit
would be appropriate, as the limit had not changed since 1986. Mr.
Christensen pointed out that if the increase was consistent with
the consumer price index (CPI) in Anchorage, it would amount to
$6800 or $6900; however, the Supreme Court felt they could
accommodate an increase to $7500.
MR. CHRISTENSEN advised members that the court's concern of
increasing the limit to $10,000 was not that the number of cases
would increase, although there would be some increase because of
the shift from district court to small claims. He explained that
most folks were under the impression that small claims court was
cheaper for the court because it was cheaper for the litigants, but
this was not the case. Mr. Christensen pointed out that the
judicial costs were lower because magistrates are paid less than
district court judges, or superior court judges, but the clerical
costs were substantially higher in small claims court. The reason
costs were higher was that the clerks were helping litigants things
a litigant's attorney normally does under formal rules.
MR. CHRISTENSEN advised members that the court's fiscal note did
not reflect additional costs for judicial time, only what the court
felt the extra clerical costs would be for the transfer of cases,
and also some additional training time for magistrates. Mr.
Christensen pointed out that many bills affect the court system,
noting that last year the court had submitted fiscal notes on
approximately 140 different pieces of legislation. He expressed
that the Supreme Court very rarely oppose a particular piece of
legislation as they feel it is the legislature's forum and
legislators should make the policy call without input from them.
MR. CHRISTENSEN stated that the courts did not only believe the
bill would result in an increase in costs, but that the increase
had a potential impact on the system that could not be predicted
and could be very severe. He pointed out that currently there were
39 court locations scattered around the state which had only a
magistrate, with no district judge to assist. Two thirds of the
magistrates were not lawyers and when increasing the dollar value
of cases, the complexity of the case would also increase. He
stated that an increase to $10,000 could over-tax the current
training levels and abilities of a lot of the magistrates.
MR. CHRISTENSEN advised members that the court system would like to
see the small claims limit increase in steps; first to $7500 to see
how that worked for two or three years, and if that increase had
not caused a serious problem for the court, an increase to $10,000
after that period of time. He noted that this was the tactic that
the legislature took during the 1980s when the district court
jurisdiction increased. Mr. Christensen pointed out that until the
early 80s, the district court jurisdiction was at $10,000 and there
was substantial sentiment to increase it to $50,000. Theory was
that district judges, as well as superior court judges, were all
attorneys and should be able to handle that limit. Mr. Christensen
expressed that the legislature increased the district court
jurisdiction in three steps; $10,000 to $25,000, from $25,000 to
$35,000, and from $35,000 to $50,000 which provided the court
system a two to three year interval between each increase to make
sure the system was not overloaded.
Number 962
CHAIRMAN GREEN asked if the fiscal note would decrease if the small
claims jurisdiction was increased to $7500 rather than the proposed
$10,000 limit.
MR. CHRISTENSEN advised members that he would suspect that the
fiscal note would drop by over two thirds.
REPRESENTATIVE BRIAN PORTER noted that the small claims caseload
appeared to decrease from 15,000 to 10,000 between 1986 and 1996.
He asked if Mr. Christensen could provide an explanation as to why
the caseload decreased.
MR. CHRISTENSEN advised members that caseload was caused by a lot
of different things; increases or decreases in population, changes
in the state's demographics, changes in law, inflation, et cetera.
He pointed out that during the last recession, in 1985 and 1986, a
lot of people stopped paying their bills with their creditors
bringing them to the small claims court, which was probably the
reason for an increase, and an ultimate decrease in claims during
the period referenced by Representative Porter.
REPRESENTATIVE CROFT asked how Alaska's small claims jurisdiction
compared to other states.
MR. CHRISTENSEN advised members that more than half the states had
a limit of $3000 or less, $5000 was typically the upper limit with
10 states having that, and two states had a higher limit than
Alaska. He noted that Alaska's current limit of $5000 was higher
than the majority of states, even when compared to states that have
higher costs of living, like Hawaii.
Number 1186
REPRESENTATIVE JEANNETTE JAMES felt that the small claims court was
for cut and dried cases. She stated that filing in small claims
court was a procedural matter for one to take that was least
expensive and allows for a judgment. Representative James advised
members that her concern was the debts that would meet the criteria
to file in small claims court, and if they would be between $7500
to $10,000. She felt more comfortable with a $10,000 limit, rather
than $7500.
MR. CHRISTENSEN expressed that a lot of the comments he had
received were from district judges and magistrates. He stated that
a lot of times, whether or not something was cut and dried, was
very closing tied to how much was involved. The bigger the amount
of money involved, the less likely it would be to be a cut and
dried case, or perceived as such.
CHAIRMAN GREEN moved to amend HB 119, page 1, line 1, delete
[$10,000] and insert $7500, and page 1, line 5, delete [$10,000]
and insert $7500. Representative Porter objected for the purpose
of making a comment.
REPRESENTATIVE PORTER advised members that he would support the
motion; however, when the committee moved the bill out of
committee, he would move it with a zero fiscal note.
REPRESENTATIVE NORMAN ROKEBERG advised members that a number of
states exempt landlord tenant actions, and other real property
actions from small claims jurisdiction. He pointed out that in
many commercial transactions, a $10,000 claim could easily be run
up after a tenant's only in arrears by more than two months rent,
noting that they were not talking about a great deal of delinquency
before reaching the small claims limit. Representative Rokeberg
expressed that he would reluctantly support the amendment, given
the comments presented by Representative Porter regarding the
fiscal note.
REPRESENTATIVE CROFT asked why the other areas of the bill that
referenced $10,000 were not included in the amendment to reduce the
limit to $7500.
CHAIRMAN GREEN apologized, and advised members that had been an
oversight. The amendment should reflect the change of $10,000 to
$7500 where ever it appeared in the bill.
REPRESENTATIVE ETHAN BERKOWITZ advised members he was in support of
the amendment; however, did not see how they could say the increase
in the small claims jurisdiction would not cost anything, when the
court says differently. He noted that they should recognize when
giving the court system additional duties and responsibilities,
they would need the means to handle that responsibility.
Number 1789
CHAIRMAN GREEN asked if Mr. Christensen would address that issue,
and if it would result in a zero fiscal note if the limit were
dropped from $10,000 to $7500.
MR. CHRISTENSEN advised members the court would expect to realize
some increase in costs even at the $7500 limit.
REPRESENTATIVE JAMES expressed that she would support the
amendment, and also agreed with Representative Porter regarding the
fiscal note. She would also like to increase the filing fee from
$25 to $50.
REPRESENTATIVE PORTER withdrew his objection. There being no
objection, Amendment 1, HB 119 was adopted.
REPRESENTATIVE BUNDE agreed with Representative James that the
filing fee should be increased. He noted that a filing fee was not
addressed in the proposed legislation, but if the Chair would
entertain a conceptual amendment, he would move for that increase.
REPRESENTATIVE BUNDE moved a conceptual amendment to HB 119 to
change the fee from $25 to $50. There were objections.
CHAIRMAN GREEN pointed out that Mr. Christensen had testified
previously that an increase in the filing fee would also impact the
court system.
MR. CHRISTENSEN advised members that his concern was the importance
of small claims court for the little guy. He stated that when they
start increasing the filing fee, they could be making it more
difficult for some people to attempt to seek justice. Mr.
Christensen pointed out though, that all fees were turned over to
the general fund, and not kept by the court system for operation
costs. He stated that the fiscal note should probably be higher,
noting that currently the court charged $60 to file a district
court case, and if transferring district court cases to small
claims court, there would be a reduction in the fees they collect
and turn over to the general fund.
MR. CHRISTENSEN advised members that the Supreme Court sets the
fees and does a thorough review of the fees every five years, and
frequently changes individual fees on the chart every year. He
expressed that when the court changed fees, they consider what was
being done in other states, the cost of living, et cetera and
attempt to arrive at a fee that would not deter people from seeking
access to justice.
REPRESENTATIVE ROKEBERG felt there was no reason they could not
raise the fees, or have a two-tiered fee schedule, based on the
amount of the claim.
REPRESENTATIVE PORTER expressed that it was his belief that to
change a fee would involve a change in the court rules and would
require a two thirds vote of the body. He advised members that he
would be more inclined to support a change in the fee if the limit
was increased to $10,000.
REPRESENTATIVE BUNDE made note that the last time the small claims
fee was set was in the mid 80s, and would point out the difference
in the permanent dividend check between the mid 80s and what it was
now. Representative Bunde called for the question.
REPRESENTATIVE ROKEBERG advised members the reason for his
objection was that he would prefer to see a two tiered fee, and
asked if the maker of the motion would consider that as a friendly
amendment.
REPRESENTATIVE BUNDE felt that would involve more and more
paperwork, and did not feel a $50 filing fee would present an
impediment for people filing in small claims court.
REPRESENTATIVE BERKOWITZ maintained his objection. He stated that
when raising fees there should be an understanding what the impact
would be. He noted that when taxes are raised, they consider the
effect of the tax, and when other revenue enhancement goes on for
the state, it was the legislatures responsibility to see who would
be affected.
CHAIRMAN GREEN requested a roll call vote. In favor:
Representatives Bunde and James. Opposed: Representatives
Rokeberg, Croft, Berkowitz and Chairman Green. Representative
Porter was not present during this roll call vote. Amendment 2, HB
119, failed adoption, 4 to 2.
REPRESENTATIVE ROKEBERG moved a conceptual amendment to implement
a fee schedule of $25 for claims ranging from $1 to $2500, and a
$50 fee schedule for claims ranging from $2501 to $7500.
Representatives Croft and Berkowitz objected.
CHAIRMAN GREEN requested a roll call vote. In favor:
Representatives Bunde, Porter, Rokeberg and James. Opposed:
Representatives Croft, Berkowitz and Chairman Green. Amendment 3,
HB 119, was adopted, 4 to 3.
REPRESENTATIVE PORTER moved to report CSHB 119 (JUD) out of
committee with a zero fiscal note, pointing out that the court
could address that issue in the House Finance Committee.
Representatives Croft objected to the zero fiscal note.
CHAIRMAN GREEN requested a roll call vote. In favor:
Representatives Bunde, Porter, Rokeberg, James and Chairman Green.
Opposed: Representatives Croft and Berkowitz. CSHB 119 (JUD) was
reported out of committee with a zero fiscal note prepared by the
House Judiciary Committee.
HB 37 - PARENTAL CONSENT BEFORE MINOR'S ABORTION
Number 2333
CHAIRMAN GREEN announced that members would continue discussion on
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." He added that public testimony was closed
at the last meeting, and deliberation would begin among committee
members.
REPRESENTATIVE BERKOWITZ advised members that a gentleman 80 years
old had called into the committee from the Mat-Su Valley during the
previous meeting. The individual had expressed to members that he
had been a republican all his life. Representative Berkowitz
wondered where the republicans were who were opposing governmental
regulation of people's lives. He pointed out that if there was no
government, there would be no reason for young women to have
parental notification.
REPRESENTATIVE BERKOWITZ advised members that what HB 37 did was
impose an additional requirement on young women to have the
government interfere with their lives, which to him was a troubling
step to take. He noted that he had also asked a question of the
sponsor regarding a young woman who wanted to have the child, but
her parents wanted her to get an abortion. The response from the
sponsor was that it would amount to some form of coercion.
Representative Berkowitz felt that explanation would also apply to
the circumstance the sponsor was trying to prevent.
REPRESENTATIVE BERKOWITZ read into the record AS 11.41.530. "A
person commits the crime of coercion if the person compels another
to engage in conduct from which there is a legal right to abstain
or abstain from conduct in which there is a legal right to engage."
Representative Berkowitz advised members that what was being done
under HB 37 was coercing young women to engage in conduct with
their parents which they would not otherwise have to do.
REPRESENTATIVE BERKOWITZ pointed out that women had the right to
chose whether or not to have an abortion. If the legislature says
that women under the age 18 do not have that right, that it was a
form of coercion. He advised members they were making people give
up rights, and not giving anything in return.
REPRESENTATIVE BERKOWITZ stated that, in his mind, there had been
a somewhat disingenuous analogy that HB 37 was not about abortion,
but about parental rights. Representative Berkowitz expressed that
another person who testified from the Mat-Su Valley indicated that
the proposed legislation was the first step to banning all
abortions. He stated that for members to sit there and
intellectualize that the bill addressed parental notification and
parental rights, he felt forgets what the whole foundation of the
American system of jurisprudence and the constitution stood for,
which was individual rights. Representative Berkowitz stated that
if individuals chose to expand and form family units, that was
their prerogative, but it was absolutely not within the
government's purview to tell people how to behave with other
individuals.
TAPE 97-32, SIDE B
Number 000
REPRESENTATIVE BERKOWITZ stated that young women would chose to
have abortions regardless of the notification. And the
consequence, based on testimony he had heard, was that young women
would die. Representative Berkowitz stated that it was a decision
members would have to make, but those were the reasons he would
oppose HB 37.
REPRESENTATIVE BERKOWITZ stated that he understood that those who
were supportive of the bill were doing so with the best intention,
but advised members there was a cost in supporting it to the
strength of the state's constitutional guarantees to the right to
privacy, and the right to have an abortion if a woman chose to do
so.
REPRESENTATIVE BERKOWITZ also thought it sent a very peculiar
message, given other pieces of legislation that had passed through
the House Judiciary Committee, such as juveniles who engage in
criminal conduct would be held to adult standards. HB 37 was
saying that juveniles who engage in adult conduct, by getting
pregnant, would not be entrusted with adult rights and
responsibilities. Representative Berkowitz went on to state that
after a child is born to a juvenile, that juvenile is charged with
taking care of the infant and had full medical control over that
baby.
REPRESENTATIVE BERKOWITZ expressed that HB 37 was so full of
internal contradictions, from a policy and constitutional
perspective, that it baffled him why it was even before the
committee. He advised members that he was a strong supporter of
families and a strong supporter of individual rights, but the issue
at hand was taking them down a road where they should not be going,
because it produced more government, and less personal freedom.
CHAIRMAN GREEN expressed that Representative Berkowitz made a very
compelling argument; however, he would attempt to counter it by
pointing out that it was legal for a young girl to go to an R-rated
movie, would be legal for her to take an overdose of aspirin or
sleeping pills. He pointed out that it was even legal for a young
woman to physically incur pain on herself, and legal for her to
take her own life. Chairman Green advised members that his point
was that there were rights that a person should, and certainly
could, impose on the rearing of their children.
CHAIRMAN GREEN felt that the reference Representative Berkowitz
made about coercion that it seemed to him there were special
situations between parents and children that supersede coercion.
He stated that every time there was a difference of opinion between
a child and a parent, that in each case the parent would be
exercising coercion on the child because the parent would prevail.
REPRESENTATIVE BERKOWITZ pointed out that he was not the one who
initially suggested coercion played into the question. It was
through testimony from a woman in Chicago, as well as the sponsor
of the bill. He clarified that he had asked the question regarding
what would happen if a young woman wanted to have the child and her
parents wanted her to have an abortion. The response he got was
that it would constitute coercion. Representative Berkowitz
explained that what he was saying was that the flip side of that
coin also constituted coercion.
CHAIRMAN GREEN pointed out that that was an opinion, rather than a
legal argument from the sponsor of HB 37.
Number 176
REPRESENTATIVE JAMES responded to testimony provided by
Representative Berkowitz. She stated that to her, HB 37 was a
parents' rights issue. Representative James expressed that if
there was no government interfering with family rights today, they
would not be arguing about that point. She pointed out that there
were so many ways the government had gotten into the family rights
that parents had been disavowed of any ability to raise their
children the way they want. Part of that began with the federal
rule when they required doctors and teachers to report suspected
child abuse and child neglect if suspicion existed. Representative
James stated that government had the same responsibility to protect
children because they were minors and not able to make certain
decisions.
REPRESENTATIVE JAMES advised members she was passionate about the
issue of parental rights, and to her, it had nothing to do with
abortion. She claimed that HB 37 was the first step that she was
going to try to take, in the next few years, to see to it that
parents get their rights back. Representative James stated that
minors were minors until they were determined to not be minors, and
while they are minors, they are under the control and
responsibility of their parents. Representative James stated with
respect to the juvenile issues where they wanted to make the
parents responsible for juvenile acts, that they could not make the
parent responsible unless the parent is given the ability to
discipline their children.
Number 364
REPRESENTATIVE BERKOWITZ expressed that he did not mean to convey
that his sole concern was to protect abortion rights. He stated
that abortion rights, to him, were just one aspect of individual
rights and the right to privacy. Representative Berkowitz stated
that if they allow government to wage any kind of attack on
individual or personal rights, it would erode the very freedoms
that most in Alaska hold very dear; so dear, that Alaska was one of
the very few states in the country to enshrine in the State's
Constitution, the right to privacy. He felt that anytime you take
a step away from those rights that it was to the detriment of all
Alaskans.
REPRESENTATIVE PORTER felt the issue at hand was one that most came
to the table with preconditioned feelings because it was an issue
that was hard to run for office and not have a lot of folks talk to
you about how you felt about things. It was because of this that
he wanted to make sure that he was understood that his vote for the
proposed legislation was not a vote for pro-life or abortion.
Representative Porter stated that it was a parental rights
situation based on all of the legislation and philosophical change
that he felt the past two legislatures had tried to bring about by
allowing parents to have the authority to be responsible for their
children.
REPRESENTATIVE PORTER stated that he could not recall any mention
of the types of issues that HB 37 dealt with when voting on the
constitutional amendment for privacy. He did recall a lot of
discussion on the concern of the computer era of being able to
amass volumes of information on people, and that individual rights
needed to be protected from computer invasion.
REPRESENTATIVE PORTER advised members that there was case law in
abundance that upheld the public policy to implement restrictions
of what otherwise might be rights or privileges of adults on
juveniles, at different ages for different things. He would not
think that the Supreme Court would consider HB 37 as an exception
to a reasonable determination of public policy.
REPRESENTATIVE PORTER advised members that the reason he was pro-
choice was that during the first few years he was in law
enforcement, abortion was a crime in the state of Alaska. He
expressed that he had had the unfortunate duty to respond and clean
up after a good number of illegal abortions. Representative Porter
explained that he had talked to families and individuals who had
attempted to abort themselves, and when the law changed, he was
pleased that he would not have to continue to make those kinds of
responses. Representative Porter expressed that if he thought for
a moment that HB 37 would get back to that, he would not support
it.
Number 586
REPRESENTATIVE CROFT stated with regard to whether the bill was
about parental rights or abortion, that during previous testimony,
Representative Bunde stated, "So in other words, you want complete
control of your kids except if they want an abortion."
Representative Croft pointed out that this was what HB 37 did, it
provided control to tell the child they could not. He felt
Representative Bunde's statement summarized the bill very well, and
brought back what the proposed legislation was about. "It's about
abortion."
REPRESENTATIVE CROFT expressed that he did not have children, but
stated that if he did have a daughter, and when he does, he would
hope she would come to him if she found herself in a situation of
being pregnant. The question was whether he wanted to give her no
other choice, to force a decision, or simply do all he could as a
parent. Representative Croft stated that he was not ready to say
it was her only choice, short of going before a judge.
REPRESENTATIVE CROFT noted that he asked a number of the witnesses
who testified whether there were any situations where they would
allow their child to have an abortion. The uniform answer he
received was, "under no circumstance", one response was "over my
dead body", or "not as long as I'm alive". He had no reason to
doubt that those people were good parents, but there was an
example, to him, of good parents that leave no legitimate option
for a child.
REPRESENTATIVE CROFT pointed out that, unfortunately, there were
people who were extremely poor parents where physical and sexual
abuse occurred and the bill could very well require a young woman
to go to the source of her abuse and ask for permission.
Representative Croft stated that he was not willing to do any of
that. He stated that while he did not yet have children, and if he
ever did, he would try and raise them so they could come to him,
but he would not limit them to only one option.
Number 1106
CHAIRMAN GREEN advised members that the skill in dialogue, by both
Representatives Croft and Berkowitz was obvious, but he asked
Representative Croft, that if HB 37 created an invasion of privacy,
and on occasion young women had died from improper abortions, that
women had died from proper abortions also, and young women had died
from child birth. Chairman Green stated that the fact remained
that parents had lost what they enjoyed with regard to parental
rights in the past.
REPRESENTATIVE BUNDE advised members that he was a parent, and did
have a daughter. He stated that he would not support the proposed
legislation at all without the judicial bypass provision, because
not all parents are good parents. Representative Bunde stated that
as a parent, and as a pro-choice person, he felt they undermined
people's ability to choose by allowing, or encouraging minors to
get involved in an invasive surgical procedure without some adult
consent, advisement or involvement.
REPRESENTATIVE BERKOWITZ felt that if they were framing the debate
in terms of parental rights, there should have been a better bill
to discuss that issue, other than the one before the committee.
He pointed out that abortion was a contentious issue, and if there
was a genuine concern about erosion of parental rights, a bill
should be put forward that specifically addressed that topic.
Representative Berkowitz stated that when a bill like HB 37 comes
forward that aims to, and actually did divide Alaskans, the quality
of legislation that comes out, and its ability to heal and
strengthen families was minimal. Representative Berkowitz hoped
that Representative Porter was right, and that he was wrong, that
women would not die if HB 37 was enacted into law.
CHAIRMAN GREEN stated that the problem that often arose between
individuals or organizations where there was a fairly strong
difference of opinion, that in nearly every case he had been
associated with, the lack of communication had been the problem.
He noted that mediation had become a very popular concept because
it caused people to communicate. Chairman Green expressed that
while HB 37 was limited in its scope to speak to abortions needing
parental consent, that it did create a need to go back to
communicating between parents and children.
CHAIRMAN GREEN stated that on issues of extreme importance, such as
the intent of HB 37, that to create a need that the child make an
effort to consent with the parent or get a judicial bypass, to him,
was not an invasion and would not create chaos, and may not even
change the number of people getting abortions. But it brings the
child and the parent together, which was important to him.
Number 1193
REPRESENTATIVE ROKEBERG stated that Representative Porter and Bunde
had spoken eloquently and reflected his philosophical position on
the overriding issue before the committee. He advised members that
his vote today would be one of the few occasions that they have as
legislators to get a hold of the very amorphous issue called family
values. He felt there were compelling reasons for the state to
allow parents to perform their duties and responsibilities of
parenting, and he felt that was what the issue was about.
REPRESENTATIVE ROKEBERG was hopeful that the proposed legislation
would be an effective element in producing some salutatory effects
on what he felt was the largest social problem in the country,
which was teen pregnancy.
REPRESENTATIVE PORTER moved to adopt draft CSHB 37 (JUD), Version
"F", dated 3/4/97. There being no objection, CSHB 37(JUD) was
adopted.
REPRESENTATIVE JAMES moved to report CSHB 37(JUD) out of committee
with individual recommendations and the attached fiscal notes.
REPRESENTATIVE BERKOWITZ objected.
CHAIRMAN GREEN requested a roll call vote. In favor:
Representatives Bunde, Porter, Rokeberg, James and Chairman Green.
Opposed: Representative Croft and Berkowitz. CSHB 37(JUD) was
reported out of committee.
HB 65 - PARTIAL-BIRTH ABORTIONS
Number 1404
CHAIRMAN GREEN indicated that the committee would consider HB 65,
"An Act relating to partial-birth abortions." He noted that this
was a procedure to abort a child before it clears the birth canal
by the insertion of a sharp instrument, probably scissors into the
back of a skull. He added that version B of this bill, dated
3/4/97, was before the committee.
Number 1451
REPRESENTATIVE PETE KOTT came forward to testify on HB 65 as
sponsor to this legislation. He stated that this legislation was
a fairly simple measure and it does one thing. It prohibits what
has been termed "partial-birth abortions" from occurring in Alaska.
Partial-birth abortions involve a series of steps which are
horrible, unconscionable and smacks in the face of hideousness. He
stated that these techniques are gruesome and he noted that he had
provided written documentation of the same, along with the sponsor
statement. He stated that the technique enumerated in the sponsor
statement was obtained from a Dr. Martin Haskell enumerated in a
1992 paper provided to the National Abortion Federation. This bill
does not in any way restrict abortions from occurring in Alaska but
rather a type of procedure that is used.
REPRESENTATIVE KOTT stated that partial-birth abortions occur
anywhere from nineteen weeks through to full term. "Essentially
one relies on the cervical entrapment of the head to help keep the
baby in place while the insertion is made to complete the process."
He stated that the committee has before it a committee substitute
that he felt captured the intent of the legislature as it relates
to this particular measure. He felt that enough substantiating
documentation provided by members of the medical community that
suggest that this procedure is not a necessity to save the life of
a mother. "There will also be some discussion on whether or not
the procedure is performed in an abundance of the cases. I think
that you will hear and bear out some facts that this is not a
procedure that is rarely used. In fact, just this past week, with
I believe with the reintroduction of a bill in Congress, a Ron
Fitzsimmons, the Executive Director for the National Coalition of
Abortion Providers, said that he mislead the public because he
feared the truth would damage the abortion rights cause. This was
in relationship to the number of times this procedure was used and
the reasons for using it."
Number 1745
GEORGE DOZIER, Aide to Representative Kott, came forward to testify
on HB 65. He read a statement into the record.
"At the outset, I would like to discuss, just briefly, federal
constitutional requirements in the abortion context. As everyone
knows, the seminal case addressing the constitutionality of
abortion in the United States is Roe v. Wade, 410 US 113.
Generally, the Court held as follows:
"1. The fourteenth amendment includes a right to privacy, and this
right is broad enough to include the right to obtain an abortion.
Roe, 410 US, at 177.
"2. This right is not absolute and may be limited by states'
legitimate interest in safeguarding women's health, maintaining
proper medical standards, and protecting potential human life.
Roe, 410 US, at 177.
"3. Applying these principles, the Court arrived at the following
conclusions. During the first trimester, the state, essentially,
may not interfere in a woman's decision to obtain an abortion.
Roe, 410 US, at 183. From the end of the first trimester, the
state may regulate abortion to safeguard the health of the mother.
From the point of viability, the state may proscribe abortions,
except where necessary to preserve the life and health of the
mother. Roe, 410 US, at 183.
"4. It may be noted that the Roe Court specifically and expressly
rejected an argument that a pregnant woman is '...entitled to
terminate her pregnancy at whatever time, in whatever way, and for
whatever reason she chooses.' Roe, 410 US, at 177.
"The most recent Supreme Court opinion discussing abortion is
Planned Parenthood v. Casey, which can be found at 505 U.S. 833;
120 L Ed 2d 674 (1992). In Casey, the Court found that states have
a substantial interest in potential human life, and that this
extends throughout the pregnancy. Casey, 120 L Ed 2d, at 714.
Indeed, this interest is characterized as 'profound'. Casey, 120
L. Ed 2d, at 715. The Court found that its opinions subsequent to
Roe had undervalued this interest of states in potential human
life, 120 L Ed 2d, at 711, and as a consequence, it rejected the
rigid trimester system first articulated in Roe. Casey, 120 L Ed
2d, at 710. Instead, it divided pregnancies into two periods---
pre-viability and viability.
"According to the Casey Court, during that first period, in which
the baby is not viable, states may not place an 'undue burden' on
a woman's right to decide whether to terminate a pregnancy. It
defined 'undue burden' as regulations that have the purpose or
effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus. 120 L Ed 2d, at 715.
"During the second period, in which the baby is viable, the
constitutional standard is different. As stated by the court, in
quoting from Roe: '...subsequent to viability, the State in
promoting its interest in the potentiality of human life may, if it
chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of
the life or health of the mother.' Casey, 120 L Ed 2d, at 716.
"To summarize: First, the state has a substantial interest in
potential human life which extends throughout the pregnancy.
Second, prior to viability, the state can not place an undue burden
on the right to pregnancy, which means placing a substantial
obstacle in the path of a woman seeking an abortion. Third, after
viability, the state may regulate abortion, and even prohibit them,
except where necessary to protect the life or health of the mother.
"Since partial birth-abortions span the last part of the pre-
viability stage and into the viability stage, HB 65 is specifically
designed to cover both stages. Hence, it must be analyzed with
respect to both standards. HB 65 more than meets these standards.
"First, with respect to pre-viability abortions, HB 65 does not
place an undue burden on the right to chose an abortion. That is
to say, it does not place a substantial obstacle, either by intent
or in effect, in the path of a woman seeking an abortion. After
all, it does not proscribe abortions per se. It merely makes one
particular form of abortion, and a particularly egregious form at
that, illegal. All other forms of abortion remain open to pregnant
women. The fact that this does not place a substantial obstacle in
the path of women seeking abortion is clear. The Director of
Public Health in Alaska testifying before the State Affairs
Committee a couple of weeks ago testified that partial-birth
abortions, as defined by the bill, have not been performed in
Alaska. Thus, the question must be asked: Does HB 65, which
proscribes a procedure which, thus far, is not done in Alaska,
place a substantial obstacle in the path of a woman seeking an
abortion? The answer, by definition, is clearly no. The procedure
is not available anyway.
"In that regard, can it really be a substantial obstacle to require
abortionists to conform to the standards of abortion practice
already present and accepted by practitioners in Alaska. That, to
my mind, is no obstacle at all, let alone a substantial one.
"In short, all options presently available to women to obtain
abortions remain unaffected. There is no obstacle, and thus, the
first standard---that which applies to pre-viability stage---is
clearly satisfied.
"The second standard, which applies to viable babies, is also
satisfied. As I previously indicated, during the period of
viability, the Supreme Court recognizes that the state may regulate
or even proscribe abortions, except where necessary to preserve the
life or health of the mother. HB 65 does not ban abortions during
this period; it merely bans a particular procedure. Thus, it is
more of a regulation of abortion than a proscription. And, the
state is free to regulate, except where necessary to preserve the
life and health of the mother. HB 65 contains an express exception
applicable to the life of the mother. It does not mention health.
However, it does not need to expressly mention health for the
following reasons:
"First, all forms of abortion present in Alaska remain in effect.
If the mother's health requires an abortion, she continues to have
recourse to those procedures. Her health is protected.
"Second, even when partial-birth abortions become available in
Alaska, their ban would not adversely impact maternal health. The
Committee was provided with voluminous material clearly
establishing that fact. For instance, as Dr. Pamela Smith, who is
the Director of Medical Education, Department of Obstetrics and
Gynecology at Mt. Sinai Hospital in Chicago, testified before the
US Senate: 'There are absolutely no obstetrical situations
encountered in this country which require a partially delivered
human fetus to be destroyed to preserve the life or health of the
mother'. Similarly, Dr. James Jones, who is chairman of the
Department of Obstetrics and Gynecology at the New York Medical
College, stated, regarding partial-birth abortions, that he 'can't
imagine that being an indicated procedure for the saving of a life
or well-being of the mother.' Although the America Medical
Association (AMA) has remained neutral on the issue, its
Legislative Council voted unanimously to recommend that the AMA
endorse the federal partial-birth ban. In so doing, it stated that
the procedure is basically repulsive and is not a recognized
medical technique. Again, the former Surgeon General of the United
States, Dr. C. Everett Koop stated: '...In no way can I twist my
mind to see that the late-term abortion as described---you know,
partial-birth, and then destruction of the unborn child before the
head is born---is a medical necessity for the mother.' Similarly,
Dr. Warren Hern, who wrote the Horn Book on late term abortions,
stated in an article in American Medical News: 'You really can't
defend it... I would dispute any statement that this is the safest
procedure to use.' He stated further: 'You have to be concerned
about causing amniotic fluid embolism or placental abruption if you
do that.'
"I won't bore you with more opinions. There are plenty in the
materials that have been provided. The point is that partial-birth
abortions are not necessary for the health of the mother.
"In summary, the Legislature can conclude that partial-birth
abortions are not necessary to preserve the health of the mother,
and indeed may even be inimical to the health of the mother. No
express exception is needed, since all other procedures remain
available.
"Thus, both the pre-viability and the post-viability standards
required by Casey are satisfied. That being the case, all that is
required is that there be some rational basis for HB 65. And,
there are several permissible state interests that are advanced by
HB 65. Indeed, the State has compelling interests in preventing
such procedures. Let me suggest but a few.
"First, delivering a baby just to the very cusp of constitutional
personhood and then killing it, just inches away from being
completely born, is cruel. Indeed, Dr. Isada, who spoke against HB
65 before the House State Affairs Committee, described one aspect
of partial-birth abortion---sticking scissors into the baby's
skull---as gruesome. The state has a very strong interest in
protecting human life from such cruel and gruesome actions. If the
state can prevent cruelty to animals, it certainly can do the same
thing for human life.
TAPE 97-33, SIDE A
Number 000
"Second, partially delivering a baby ---or, I should say almost
entirely delivering a baby---and then killing it tends to mix the
roles of obstetrician and abortionist. The former are healers, and
they are perceived as such by the general public. Abortionists, in
the overwhelming number of cases, ---for instance I refer you to
Dr. Haskill's statement that 80% of his partial-birth abortions are
elective---are not healers. They perform some other function. By
mixing these two opposing roles, there is great danger that public
confidence in the medical profession will be undermined.
"Third, bringing a baby right to the very edge of complete birth
and then sucking its brains out is inherently disrespectful of
human dignity.
"Fourth, the state has a legitimate and compelling interest in
drawing a clear distinction between legal abortion and infanticide.
Partial-birth abortions blur that distinction. Furthermore, it may
be noted that the difference between a viable baby who has just
emerged from the womb and a viable baby who is almost out of the
womb is negligible. But for a few inches they are the same. To
permit the killing of one and forbid the killing of the other is
ludicrous and will breed disrespect for the law. So fine a
distinction, carrying such dire consequences, can not but be
scoffed at by Alaska's people.
"Hence, in my opinion, partial-birth abortions are fully
constitutional under the guidelines established by the United
States Supreme Court. I would like to turn now to some of the
specific arguments that have been made thus far against the
constitutionality of HB 65.
"First, it has been argued that HB 65 creates an undue burden
because partial-birth abortions are the safest alternative. This,
of course, is an assertion of fact, and the alleged fact is
extremely dubious. This Committee has been provided with an
abundance of materials indicating that partial-birth abortions are
not necessary for maternal health and further indicating that
partial-birth abortions, in themselves, present a risk to maternal
health.
"It also has been argued that the Supreme Court, in Planned
Parenthood v. Danforth, held unconstitutional an abortion statute
which proscribes the use saline amniocentesis, in part because such
a prohibition would force women to use more dangerous methods. On
the surface, this argument has a certain appeal. After all, HB 65,
like Danforth, involves the proscription of a defined abortion
procedure. However, Danforth is clearly distinguishable, on at
least three grounds. First, HB 65, unlike the Danforth statute,
does not force women to use procedures which are less safe than
partial-birth abortions. Second, the Danforth court emphasized
that the proscribed method was the most prevalent available, and
that another safe method was not yet available. Here, with HB 65,
the proscribed method is not yet used in Alaska and other, safe,
methods are available. Third, Danforth predates Casey and thus its
analysis focused on whether the statute advanced maternal health.
This was during the period in which states' interest in protecting
potential human life was undervalued. Casey changed all of that.
Now, unlike when Danforth was decided, it is recognized that the
state's interest in human life may be asserted throughout
pregnancy. HB 65 does just that, and it may be expected that the
right to assert that interest would be weighed in any
constitutional challenge. Danforth, quite simply, is
distinguishable.
"In the past it also has been argued that the only Court to review
a ban similar to HB 65 invalidated it, because for some women the
prohibited procedure would be safer than other available
techniques. The case is Women's Medical Professional Corp v.
Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995). The Court in that
case, within the context of deciding whether to issue a preliminary
injunction and prior to a full trial, held that D&X was safer than
other methods; and, because D&X was more available than induction
methods, which require hospitalization, a proscription on D&X was
a substantial burden. The Court in that case was certainly
entitled to make its findings. This Committee has an equal right
to make findings of fact, and ample evidence has been presented to
it to base a contrary finding concerning safety. Moreover, this
Committee reasonably can not find, given the previous testimony of
the Public Health Director, that partial-birth abortions are more
prevalent than any other methods in Alaska. In Alaska, partial-
birth abortions, thus far, have not been performed. Our state,
fortunately, seems to lag behind the rest of the United States in
adopting undesirable conduct.
"It also has been argued that the definition of partial-birth
abortions is overbroad because it could encompass procedures other
than partial-birth abortions. It is true that statutes which are
so broad as to sweep within their coverage not only properly
proscribed acts but also constitutionally protected acts are
unconstitutional. The definition employed in HB 65, however, is
not of that nature. It does not overlap other alternative methods.
They are clearly distinct and clearly outside the coverage of HB
65. It is also argued that the definition is vague. Vague
statutes, particularly those that impose criminal liabilities, are
unconstitutional. However, HB 65's definition is not vague. It is
clear and precise. It establishes definitively what is proscribed.
Persons of common intelligence easily can understand what is
prohibited and thus there will not be a chilling effect.
Proponents of this argument may have in mind the definition used in
the statute examined by the court in Voinovich. There, the court--
-and I think quite rightly--- concluded that there was an overlap
and that the statute was vague. But, the definition of D&X
employed in that case does not in the slightest resemble HB 65's
definition. I can quote the Ohio definition for you. 'The
termination of a human pregnancy by purposely inserting a suction
device into the skull of a fetus to remove the brain. "Dilation
and extraction procedure" does not include either the suction
curettage procedure of abortion or the suction aspiration procedure
of abortion.' The court found that this definition overlaps normal
D&E procedure (because both may involve inserting a suction device
into the skull) and because D&E is not excluded as suction
curettage or suction aspiration. Further, the Voinovich Court
noted that in analyzing statutes for vagueness, the absence of a
mens rea requirement is somewhat persuasive. In fact, it relied on
this concept in finding another portion of the Ohio law
unconstitutionally vague. In HB 65, it may be noted that there is
an express mens rea.
"Concerns regarding vagueness are misplaced. This bill does not
resemble, in any respect, the statute considered by the Voinovich
court. It is clear and precise, and it does not overlap any other
abortion procedure. It is such as to apprise people of common
intelligence what is being prohibited, and there is no reason to
believe that it will have a chilling effect on constitutionally
protected acts. Finally, since it is clear, there is no danger of
arbitrary or discriminatory enforcement.
"Finally, it is argued that the privacy clause of the Alaska
Constitution would be violated by HB 65. The Alaska Supreme Court
has not yet decided an abortion case using this constitutional
provision. What we do know is that, although the right is broader
than the privacy right found by the US Supreme Court in the US
Constitution, it is not absolute. And, certainly, the right to
privacy is not violated when an alleged infringement is justified
by a legitimate and compelling governmental interest.
"Although the Alaska Constitution's right of privacy is deemed to
be broader than that of the United States Constitution, it does not
reach everywhere and cover all things. Essentially there is a two
step analysis that is required. First, it must be determined if
the conduct in question is within the scope of the amendment.
Then, and only then, it must be determined if the alleged
infringement bears a fair and substantial relation to a compelling
governmental interest.
"First, does partial-birth abortions fall within the scope of the
amendment? The Alaska Supreme Court has determined that this issue
is resolved by answering two questions: (1) Does the person have
an actual (that is, subjective) expectation of privacy concerning
the conduct? (2) Is the expectation one that society is prepared to
recognize as reasonable? If both questions are answered in the
affirmative, the conduct falls within the scope of the privacy
amendment. Hilbers v. Muni. of Anchorage, 611 P. 2d 31 (1980).
"In Alaska, as with the rest of the United States over the last
quarter century, many people have been conditioned to perceive
abortion as part of the culture. Indeed, the Casey Court made much
of that fact in discussing whether or not it would be appropriate
to abandon the central tenants of Roe. Given this state of
affairs, it would not surprise me that some would have a subjective
expectation a privacy right to engage in even this gruesome
procedure. But, is subjective expectation something that we as a
society are prepared to recognize as reasonable? I think not. In
my opinion, for the reasons I have discussed at length in this
testimony, society is not even close to recognizing as reasonable
any such assertion of a privacy right to obtain a partial-birth
abortion. Hence, this procedure falls outside the scope of the
amendment.
"Even assuming, arguendo, that partial-birth abortions are within
the scope of Alaska's constitutional right to privacy, society's
hands are not tied. As previously stated, the right is not
absolute. An alleged 'infringement' is permissible if it bears a
fair and substantial relationship to a compelling governmental
interest.
"I respectfully submit to you that Alaska has a compelling state
interest in protecting babies, who are almost born, who are mostly
outside the bodies of their mothers, from having their brains
sucked out. I also submit that the government has a compelling
interest in protecting public confidence in the medical profession
by not blurring the roles of healer and abortionist. I also
suggest to you that the government has a compelling interest in
protecting the almost born from this cruel, gruesome, and
undignified death. Accordingly, HB 65 does not run afoul Alaska's
right to privacy.
"In conclusion, HB 65 will pass constitutional muster."
Number 960
BACHAR BEN'ISRAEL testified via teleconference from Moose Creek in
support of HB 65. She stated that she was confused about when this
type of abortion would be conducted in regards to how developed the
fetus was. She said she was appalled to understand that this
procedure was conducted on full term babies after delivery, that
the procedure involved the suctioning of brain tissue and stated
that this was beyond her imagination. Unless a mother's life is in
danger this procedure should not be allowed and added that it
reminded her of the undesirable during the Nazi Holocaust.
Number 1101
AMY SKILBRED, Alaska Civil Liberties Union, came forward to testify
in opposition to HB 65. She referred to her testimony entitled,
"State Interference In Private Medical Decisions." She noted that
some of those present have children and that she has two children.
She spoke to a baby's pre-term development by stages and the fact
that parents look forward to birthing this child, along with all
the anticipation involved, fixing up the nursery, etc. She asked
those present to imagine going in for a routine prenatal visit and
finding out that the unborn child they treasure will not live long
after it is born, if it will survive this long. With this tragic
news barely understood it is then advised with the mother's
condition, age or medical history that terminating the pregnancy is
recommended. What if then they learn that the medical procedure,
with possibly the lowest risk in that mother's specific medical
circumstances, is not an option, not an option because it is
against the law. Imagine how the mother and family will feel at a
moment like this, the moment that a law not based on science but on
politics prohibits an individual and their doctor from using the
best medical procedure under the circumstance. This moment is a
dangerous moment for our democracy.
MS. SKILBRED continued that all citizens of this country and state
have a constitutional right to privacy. It is hard to think of
privacy more profound than a patient's right to choose his or her
course of treatment in a medical emergency. HB 65 would violate
this most fundamental right by replacing a doctor's medical advise
and a patient's decision whether or not to follow that advise with
politically motivated statutes. A law substituting religious
beliefs for science, a law penned and promoted by those who would
place compassion for a child that cannot live over concern for a
mother's health. Surely those whose compassion lies with the
unborn can understand the suffering a mother feels when she is
loosing a child she wanted and loved, or a father for that matter.
Compounding this trauma is the fear of imminent danger to a woman's
own body. This is a perilous situation for women, when they are
loosing a child that they carry. This is an excruciating
situation, physically and emotionally.
MS. SKILBRED noted that to further complicate this situation with
some arbitrary and vague statutory prohibition is simply
unconscionable. To deny appropriate medical treatment in this
situation is a violation of the mother's rights, her rights as an
individual, as a patient and as an American. Our courts have
refused to allow such a profound violation of individual privacy
rights. Neither will this violation of individual rights stand.
Indeed, very similar attempts have failed. Nevertheless, she urged
the committee at this point to stop this dangerous interference
with medical treatment before it moves one step closer to passage.
MS. SKILBRED offered that one of the things people should consider
is if this legislation was to pass and a suit is brought against a
doctor for using such a procedure in Alaska she asked what happens
to the patient's privacy rights then. When the state decides to
prosecute a treating physician, if laws such as HB 65 allows state
prosecution of a doctor performing a medical procedure, the patient
and the patient's once confidential, medical record and medical
history are destined to become exhibit one. How else will a court
determine if a doctor prosecuted by the state under this bill
before them was performing a procedure that was necessary.
Number 1380
REPRESENTATIVE GREEN asked if the baby's head were to slip beyond
the cervical control, is the doctor still entitled to drive the
scissors into its skull.
MS. SKILBRED stated that she was not a doctor and she thought the
way in which the procedure has been publicized any normal person
would think it gruesome. They are not taking about healthy Gerber
Babies who are just about to be delivered that are eight and 1/2
months along even if the birth mother did not want it.
Number 1468
CHAIRMAN GREEN stated that he thought it had to do with the
mother's health rather than the baby. He understood the procedure
that as long as the baby's head is still cervically preventing it
from being born, if in fact "that wasn't that type, for example,
I've talked to some people who had their babies on the way to the
hospital. They delivered so quickly that you might not be able to
stop the baby's birth even though you've made a breach condition."
If the baby is born, this situation has gone beyond the need to
help the mother. He asked what happens once the baby is viable.
MS. SKILBRED responded that these procedures are usually induced.
This isn't a situation where someone is on their way to have a
baby, but they are in the hands of a physician before the process
is induced. She can't respond to some of these questions in part
as opposed to what the sponsor has stated, the bill's wording is
vague. If the process is really D&X's, then it's D&X's, if it's
really D&E's, then it's D&E's. It isn't clear from this bill what
the process is.
Number 1526
REPRESENTATIVE PORTER stated that any malpractice case is not a
patient's privacy subject to being violated.
MS. SKILBRED stated that she believed it could be.
Number 1540
REPRESENTATIVE BERKOWITZ stated that in a civil situation, when a
patient brings suit against a doctor and puts at issue the
treatment, the doctor/patient confidentiality is breached. This is
a circumstance where essentially the state is prosecuting, the
state is charging a doctor. There is not necessarily collusion
between the state and the woman who has had the abortion. In which
case, the doctor wouldn't be entitled, because of confidentiality,
to prepare their case.
MS. SKILBRED added that the woman may not want to participate in a
case like that.
Number 1584
REPRESENTATIVE CROFT noted that in previous testimony it was stated
that the exception was to protect the life and the health of the
mother. This law just says life. He asked in her opinion and the
organization she represents, is it constitutional if it doesn't say
"or health."
MS. SKILBRED responded that she could provide him with a written
response at a later time. She said that this might address one of
the issues, it might not address all the constitutional issues that
this bill might have.
Number 1650
CHAIRMAN GREEN asked that if this legislation is intended to
protect the life of the mother, it was his understanding, that
breach condition babies are a very high risk birth as compared to
the normal, head first birth. It seemed to him that when a doctor
goes in and manipulates the baby from the normal head down position
into a feet down position, that doctor is creating a breach
condition which increases the risk of damage, he thought that they
were working in the wrong direction, literally. They are incurring
a higher risk by inverting the baby. It seemed to him that this
was not unlike trying to take a Christmas tree out the door the
wrong way. He didn't know how this could be considered in the best
interest of the mother.
MS. SKILBRED responded that they could either decide that doctors
based on their knowledge, training and abilities are not the people
who should decide what is in the best interest of their patient,
but a legislative body should decide what's in the best interest of
a woman or they could decide that doctors who have the information
about a woman's condition, her age, her health, her medical
background, are the ones who are best suited to decide what
procedure should be used. She respectfully suggested that they
should leave it to the doctors to decide. There are numerous law
suits against doctors for not doing the right thing, but she didn't
think Alaska should legislate what the procedures are that doctors
should use.
Number 1700
CHAIRMAN GREEN asked if she could think of any other type of
manipulation that would be preferable to invert the baby for
delivery, rather than to try...
MS. SKILBRED stated that after having vaginally delivered two
children she said it would be an uncomfortable situation to do
anything but the way children should be born. She didn't know that
someone would be better off having a caesarean birth to pull out
what might be a viable but soon to die baby. She thought they
should look at the mother as well and to let her, along with her
physician make a decision.
Number 1750
CHAIRMAN GREEN stated that the reason he asked was that one of his
daughters has two children, the first one, a girl, was five and 1/2
pounds. Because she was in a breach position and unable to be
turned around, they took the baby caesarean because of the risk of
trying to deliver in the wrong direction. Her physician felt that
even a baby nearly half as big in the wrong direction was a higher
risk than a caesarean section. It seemed incongruous to him that
a doctor would reverse a normal situation in the interest of
protecting the mother.
MS. SKILBRED again stated that she wasn't a physician, but that a
doctor in this situation might decide that this is in the best
interest of the mother. She noted that a caesarean section is
major surgery.
Number 1847
DR. PETER NAKAMURA, Director, Division of Public Health, Department
of Health and Social Services came forward to testify on HB 65. He
stated that the primary problem with the bill is that they're
legislating medical practice, a clinical practice. They're not
deciding here whether an abortion should be done or not done. He
thought that the bill says they're at the point where a
determination is made and an abortion will take place, now what
procedure should be used. This is a decision which should be left
between a physician and their patient. This is not something that
should be legislated. Each situation is different. He outlined
these for the committee.
DR. NAKAMURA stated that if an abortion is needed to be performed
then there are all types of patients. There may be a patient who
has an underlying medical problem like a heart condition and
perhaps this is the reason an abortion had to take place since the
stress of delivery would have been too great. The patient might
have leukemia or another terminal illness. It would be necessary
to abort because of chemotherapy treatments. Once a decision is
made then the doctor needs to decide which is the safest procedure
for this child. The most difficult and complicated procedure is to
allow a pregnancy to go to term. There are a large number of
complications in this instance. If an abortion is decided upon a
procedure needs to be established. Saline injections have been
used to induce labor, but is traumatic on the patient, takes a
longer time and has other complications. He noted these
complications.
DR. NAKAMURA noted that another option could be a C-Section but
this is major surgery where the patient has to be anesthetized,
hospitalized and an operation is performed to remove the fetus.
There are other ways an abortion can be induced, such as with
chemicals, or through the use of hormones. Quite often hormones
don't work because in the early stages of pregnancy, the uterus
doesn't respond which means that the patient is left in a hospital
or in an uncomfortable situation for a longer duration of time
until another choice for a procedure is taken. It takes a large
amount of medication to induce labor at this early stage, prior to
the viability of the fetus and quite frequently it fails. The
doctor is best able to determine when this viability is. The
definition under the previous statutes was 150 days.
DR. NAKAMURA addressed the options of either D&X or D&E. Both of
these procedures are somewhat similar in that the doctor dilates
the cervix, then the non-viable fetus is extracted. This is a
pretty traumatic procedure. The D&X procedure is one that was
designed to be more physiologically acceptable to many patients
because sometimes the mother would still like to hold the fetus.
If the fetus doesn't have a genetic abnormality it would still look
like a baby. It was for this purpose that this procedure was
designed.
DR. NAKAMURA paraphrased a statement to respond to which was,
"Partial-birth abortions are cruel and gruesome." He stated that
it's also cruel and gruesome to subject the mother to an additional
stress that she doesn't have to be exposed to, such as other
procedures or for instance in the case of a child with significant
genetic defects. If it is known that the fetus will not survive
and the mother is required to go to full term and deliver. This
would be pretty cruel and gruesome in itself. All abortions are
kind of gruesome but there's a purpose for them to take place,
sometimes it's psychological and sometimes it's physical.
DR. NAKAMURA again referred to an argument against this procedure
and stated that if they look at the fact that partial-birth
abortions as inherently disrespectful of the dignity accorded human
life, he said he wasn't sure how to respond to that one. He
thought in this case they're talking about whether an abortion
should be done or not be done. As stated previously, the
comparable procedures can actually be more gruesome than a D&X in
itself. He assumed that the bill relates to D&X because he's heard
so often the description of a needle stuck into the back of the
brain and the contents aspirated.
Number 2163
CHAIRMAN GREEN again asked if this procedure was ultimately for the
protection of the mother.
DR. NAKAMURA responded that yes, this procedure was for the
protection of the mother.
Number 2238
CHAIRMAN GREEN asked if this could happen in the case of a normal
baby.
DR. NAKAMURA noted that this wouldn't be the case if it's going to
be called an abortion. Once the baby is viable this procedure
would not be undertaken unless it's to save the life of the mother.
He said this decision would be made between the physician and the
mother. He couldn't imagine a situation where this procedure would
be used unless it happened to be an instance of a hydro-cephalic
infant and to preserve the health and the future ability of this
mother to have babies. Then this procedure might be used.
CHAIRMAN GREEN noted his concern that if this is going to be a
demise of the baby to save the mother's life, he asked why the baby
would have to be aborted if it's healthy, it sounds like it would
still fit this category, but if it does have to be killed, to be
killed in this manner, the doctor is saying that unless it's a
hydro-cephalic there are other ways that might be more traumatic to
the mother.
DR. NAKAMURA stated that if the mother is pregnant and the infant
is viable, the only time that this baby would be aborted would be
to save the life of the mother or perhaps prevent a significant,
serious, harmful affect on her health.
CHAIRMAN GREEN added that the first consideration might be whether
the baby is viable to save both.'
Number 2306
DR. NAKAMURA responded yes, he would assume so. A caesarean could
be a choice. He went on to paraphrase the statement that partial-
birth abortion tends to blur the distinction between constitutional
persons and non-persons and between infanticide and legal
abortions. He stated that he didn't know what is meant by this
statement. He also quoted, "A partial-birth abortion, because of
their gruesome nature and because they incorporate two separate
roles of physicians and the role of the healer and the role of the
abortion, tend to undermine the public confidence in the medical
profession." He noted that the reason the physicians are doing
these abortions is that in the past, prior to the time that they
were made legal, they were done by others. When they were done by
others there was a lot of unfortunate outcomes. He noted a
hospital in Texas that only administered to woman with
complications from illegal abortions.
Number 2412
REPRESENTATIVE PORTER asked in regards to the distinction between
a D&E and a D&X, on the second page of the bill, line 13, he said
he didn't have any problem with this language and asked if it would
eliminate a D&E.
DR. NAKAMURA responded that it would eliminate almost everything.
He stated that he had never done an abortion. He needed to ask
other physicians what this language meant. To them it means that
this virtually could eliminate all abortions because there is no
way they can assure that a baby will not be delivered, even during
a suction aspiration of a fetus and not be alive. In reality it
could eliminate all abortions.
REPRESENTATIVE CROFT stated that he'd like to get more to the point
of these procedures being done either pre-viable or viable for a
malformed baby or to protect the life of a healthy mother, but he
stated that if they would have the doctor return, these questions
could wait.
TAPE 97-33, SIDE B
Number 000
DEBRA JOSLIN, Chair, District 35, Republican Party of Alaska,
testified next via teleconference from Delta Junction. She shared
a story of a woman who gave birth to a child with multiple
impairments. After many surgeries this child is alive and well,
lives in Alaska and is a joy to his mother. If this woman was
asked if this child should not have lived, the answer would have
been no. When this child was born there was no such thing as
legalized abortion, or partial-birth abortions. If there had been
that option, if the doctors has presented this option, the woman
might have consented to this procedure.
MS. JOSLIN referred to an article in the "Wall Street Journal,"
titled, "Partial-Birth Abortion is Bad Medicine," written by
several obstetric-gynecologists. This article contains some of the
truths about partial-birth abortions. She said she would send this
article to the committee.
Number 0043
BARBARA RAWALT, Financial Chair, District 35, Republican Party of
Alaska, testified next via teleconference from Delta Junction. She
added that she was also testifying as a parent and as a
grandparent. She urged passage of HB 65. She referred to
testimony by Mr. Fitzsimmons, the oft quoted pro-choice spokesman,
who supported both the variety and the necessity of this procedure
and recently admitted that his previous statements were a lie. He
admitted that this procedure is not rare, it affects not just a few
hundred woman as previously stated, but 300,000 to 500,000 women
per year in the United States who have this procedure done. As to
the necessity, he stated that this procedure was not limited to
hopelessly deformed babies as was previously stated, but that most
of these procedures were performed on an elective basis, on healthy
babies.
MS. RAWALT urged the committee to vote yes on HB 65 in order to
stop this barbarous procedure.
Number 0191
SHARYLEE ZACHARY announced that she had submitted written testimony
to the committee. She referred to Section 1, (6) and (7), which
states how this procedure undermines the public confidence in the
medical profession. She believed that a majority of medical
physicians and health care providers are honest, upright and have
the sincere desire to help and heal people. However, the medical
profession has "cut it's own throat" in the area of "credibility."
It has allowed many physicians to perform unjustified abortions and
then look the other way when those same doctors falsify the
patient's records with statements about it being a medical
necessity, when in fact the abortion was done as an elective
procedure. In other words this is a pre-arranged convenience for
the mother and a financial benefit for the doctor and/or the
clinic.
MS. ZACHARY said, in the last year or two, several medical
professionals have given national testimony that there are just a
few cases of partial-birth abortions which have been done to save
the lives of the mother. The media has gone overboard in
emphasizing that testimony and unfortunately many people have
believed those doctors. The media and certain politicians have
also largely ignored those people providing testimony regarding the
thousands of unnecessary partial-birth abortions.
MS. ZACHARY said, in the past few weeks, a prominent physician has
brought forth testimony that he lied. She questioned how we could
trust doctors and other health care professionals, who know this to
be true and yet keep quiet. If this is their ethic, in this area,
what is to keep them from falsifying other areas of medical care
for the sake of convenience and financial gain.
Number 0289
KATHLEEN HOFFMAN testified next via teleconference from Kenai. She
appreciated all the work the committee had done on HB 65 as we
surely want to rid our state of this partial-birth abortion. She
referred to an infant that she worked with when she was in nurse's
training. She is in favor of HB 65.
Number 0358
VIRGINIA PHILLIPS, testified as a Spokesperson for American Indians
and Alaska Natives, National Right to Life. She stated that she is
the Chair, District 2, Republican Party of Alaska testified next
via teleconference from Sitka. She was appalled what this
procedure did to the woman. It is ridiculous to say that it is
necessary for the life or health of the mother, there are other
easier things to do to get rid of the baby. This procedure needs
to be outlawed. If people attempted to do this procedure on a rat,
animal rights activists would say it was inhumane. She asked for
humane treatment of women and to stop them from being victimized by
the partial-birth abortion.
TERESA LUNDY, Medical Transcriptionist, testified next via
teleconference from Sitka. She is speaking for the (Indisc.)
community in Sitka because a lot of people couldn't attend the
meeting today. She questioned the ability of people from the
medical community to defend and endorse this abortion procedure.
She referred to earlier testimony on the D & X procedure and
testimony that the D & E procedure had to do with taking the non-
viable infant and aborting the child. She reminded the witness
that he is misinformed; the D & E procedure is a gruesome
dismemberment type of abortion procedure. After a period of time
the baby tissue becomes toughened as the baby develops. She
referred to written testimony on the D & X extraction method by Dr.
Martin Haskell. The doctor invented this D & X procedure because
it was an alternative to dismemberment.
MS. LUNDY asked the committee to endorse HB 65. It is imperative
that the Alaska Legislature set the standard to not allow this
abortion procedure in this state. She was concerned that there was
no ethical concern regarding abortion. Eliminating partial-birth
abortions does not interfere with reproductive rights or right to
privacy concerns. She urged the committee to see that ethical
standards were set in stone by passing HB 65.
Number 0358
SALLY APOXIDAK testified next via teleconference from MatSu. She
was appalled about today's testimony. She asked the committee to
look at the bigger picture in terms of abortion. She was in favor
of the contents of HB 65.
Number 0612
ART HIPPLER, Executive Director, Alaska Right to Life, testified
next via teleconference from MatSu. He referred to the testimony
given by Mr. Dozier. His organization supports HB 65. He offered
$500, out of his pocket, to the first person who provides
unambiguous evidence of one single case where this procedure was
medically necessary to save the life or the fertility of the
mother.
ERNIE LINE testified next via teleconference from MatSu. He said
there have been no partial-birth abortion procedures performed in
Alaska, according to Mr. Dozier. He assumed that the committee
knew how many doctors in Alaska were qualified to perform this
procedure.
CHAIRMAN GREEN said he did not know. When he asked if this
information was known by other members of the committee or
witnesses, no one answered.
MR. LINE completely agreed with the doctor who testified that
legislators should not practice medicine. He asked the committee,
before they pass HB 65 or SB 12, to consider the women who might
need to abort these fetal anomalies or else to provide for them
when they are infant anomalies.
Number 0769
NIKKI SULLIVAN said she done post abortion counseling and provided
education for women who have been through the abortion experience.
She has had national training in Denver at the Post Abortion
Counseling and Education Institute. She referred to testimony
about the protection of the mother and the viability of the baby.
These women suffer the same degree of trauma after the abortion as
they experience during the abortion. She could not think of
anything more traumatic than a partial-birth abortion. She is a
proponent of informed consent, every woman has the right to know
what is going on with her body and what an abortion consists of.
Number 0884
KRISTIN HOCK informed the committee that she was eight and half
months pregnant. She was not planning to terminate this pregnancy,
but if she chose to, then she would have a legal right to do so in
some states. If we propose partial-birth abortions for convicts,
who are on death row, there would be an outcry saying it was cruel
and inhumane treatment, it did not respect people and their
dignity. She referred to the U.S. Constitution and urged the
committee to value the right of protection of life and liberty by
banning partial-birth abortions.
Number 1009
TRICIA BONNEY, Nurse, said the whole purpose for partial-birth
abortions is for the mother's health. She said the argument,
regarding infant anomalies, is not viable in opposing HB 65. She
said this procedure is not taught in medical schools, and
questioned how it could be considered a necessary medical
procedure. She felt this procedure was inhumane and referred to
previous testimony against partial-birth abortions. She urged the
committee to support HB 65.
Number 1149
TOM GORDY agreed with the testimony given by Mr. Dozier and said
more facts have come out this week about partial-birth abortions.
People who support abortion will lie to keep things going. He was
here to speak against this procedure; called partial-birth
abortions by Congress or D & X, short for dilation and extractions,
others have called it D & E, but medical literature does not have
a name for it because it is not a recognized legitimate medical
procedure. He said there are probably no doctors qualified to do
this procedure as it is not a licensed procedure.
MR. GORDY said he would like to call it partial-birth infanticide.
He referred to a nurse who worked for Dr. Haskell, the doctor who
invented this procedure and her experience of watching this
procedure. This woman had originally supported abortion, but has
changed her stance since seeing this procedure. This procedure is
the murdering of a defenseless baby.
MR. GORDY referred to a woman who had complications in her
pregnancy in the sixth month, which is the time when Dr. Haskell
says he performs most of these procedures. Labor was induced, the
baby was treated in the neo-natal unit of the hospital and is alive
today. He said a mother's life does not need to be threatened, the
baby can be pulled out and survive outside of the mother through
care and nurturing.
MR. GORDY testified that 300 physicians, primarily obstetricians,
united to oppose this procedure after President Clinton opposed the
partial-birth abortion ban. They declared that it is never
medically necessary. Dr. Haskell said that 80 percent of partial-
birth abortions are elective. Dr. McMann, who has performed 2,000
partial-birth abortions, said 22 percent of the partial-birth
abortions that he has performed for maternal indications were for
depression, not for physical threats.
MR. GORDY stated that this procedure is morally and ethically
wrong. It is time to say, no, to this type of cruel procedure. He
urged the committee to pass HB 65.
Number 1475
DAVE ROGERS, Lobbyist, Alaska Woman's Lobby, said his organization
opposes HB 65. They acknowledged that information and beliefs on
this subject are contradictory, but wanted to present information
to the committee. Partial-birth abortion is not a medical term,
the procedure that is being addressed in HB 65 is call dilation and
extraction of D & X, or sometimes called intact dilation and
extraction. This procedure is used in the second and third
trimesters. Doctors, who they have talked to, have said they have
rarely met a patient who did not want, and was not completely
bonded to their baby by the third trimester, nor have they known a
health care provider who was not equally concerned about the health
of the baby in the third trimester. This procedure is not a
procedure to be undertaken lightly. Many involve wanted
pregnancies that go tragically wrong when a woman's life or
physical health is endangered and the fetus develops abnormalities
which will cause them to die just before, during or just after
life. Finally, this procedure is the safest available for some
women. It carries lower risks of pervading the uterus, lacerating
the cervix and the birth canal or causing maternal hemorrhage than
certain alternative procedures. They were also told that D & X is
less physically stressful and less toxic than other methods.
MR. ROGERS said, if these findings are valid, this proper medical
procedure, which may be the safest and most appropriate choice
among several techniques in some cases, should not be the subject
of a restrictive law which will take away from the physician's
exercise of discretion and unduly burden a woman's right to chose,
by arbitrarily and narrowly limiting her access to the procedures
her doctors consider best for her.
MR. ROGERS said, as is always the case in this arena, professional
judgement and individual consideration must govern actions taken
over the broad and complex spectrum of medical possibilities.
Families and their physicians must be permitted to make the
difficult decisions posed by the situation. He said HB 65 is
unnecessary, can hurt Alaskan women and only serves to further
polarize concerned Alaskans. For these reasons the Alaskan Women's
Lobby strongly opposes HB 65.
Number 1661
SID HEIDERSDORF suggested that the baby is turned around, to be
delivered feet first, so that it will not scream before the
procedure is completed. He referred to Mr. Fitzsimmons and a New
York Times article which quoted him as saying that he lied, because
telling the truth would damage the abortion rights cause. He felt
Mr. Fitzsimmons told the truth because he realized he was defending
the indefensible. He felt that people who are supporting partial-
birth abortions were defending it because if you face the truth it
will somehow collapse the abortion edifice. Abortion is supported
by the Supreme Court decision and there is little that the state
could do. This is a step the state could take to acknowledge that
there is some kind of justifiable restrictions which could be
placed on certain abortion procedures.
MR. HEIDERSDORF asked the committee not to be influenced by
arguments that the state should stay out of medical practice. He
reminded the committee of the practices of doctors in Nazi Germany
and said there are certain things that should be outlawed. In
every profession there are certain amount of people that operate on
the fringes; they must be controlled and guided by state laws. He
did not care how many of these things were done and what they are
done for. This procedure must simply not be allowed. If we want to
maintain some type of claim to be civilized, we have to take some
steps to control things that are happening which should clearly be
condemned.
Number 1917
REPRESENTATIVE BERKOWITZ referred to the analogy and felt it was an
unfair comparison to make and was outside the bounds of this
discussion. There is common ground, there should be debate about
issues like this, but when you invoke issues that are hateful as
that one, you destroy the possibility of dialogue.
MR. HEIDERSDORF used this point to attempt to show that within his
lifetime, he has seen this situation occur in a civilized society
where we say this should have been stopped. Because people
testified that the state should stay out of medical practice, he
felt it was a legitimate thing to show his point of view that there
are certain procedures that should be stopped.
Number 2098
CHAIRMAN GREEN closed public testimony.
REPRESENTATIVE PORTER said, it would be helpful in his
understanding of this bill, if someone could explain the difference
between a D & C, a D & E and a D & X. He referred to Section 2(c)
and said he thought it described what he thought was a partial-
birth abortion. If this was done with the intent to expose a
portion of a live fetus outside the body of the mother and then
terminate it, he thought it would eliminate the things that Dr.
Nakamura was referring to.
REPRESENTATIVE CROFT asked if it was the intention to have this
bill apply to pre-viable fetuses.
REPRESENTATIVE KOTT answered, yes. He felt this was clear in the
opening statement. He added that some of the discussion handled by
Dr. Nakamura was premature in addressing certain issues.
REPRESENTATIVE KOTT said he wanted to make some comments on today's
testimony and would try to respond to Representative Porter's
concerns. Clearly, an abundance of information has been presented
regarding this particular practice, whether it is used in the state
or not. He had no evidence to show that it would be done in this
state, this bill is a preventative measure. The definition of the
procedure in Section 2(c) was extracted from the Congressional
version of a similar bill. This definition is not something that
he created, it is not a novel idea. This language was formed by a
number of scholarly individuals in the medical community as well as
the legal profession. He felt this definition was extremely clear
about what it is that we are attempting to prohibit.
REPRESENTATIVE KOTT referred to letters from Dr. Thompson and Dr.
Ritter (Ph.) who are premier experts in the field of obstetrics.
These doctors have not performed any abortions. He expressed
concern with Dr. Nakamura's testimony as he has not..."
TAPE 97-34, SIDE A
Number 000
REPRESENTATIVE KOTT continued...he said it was just brought to his
attention that the committee did not have Dr. Thompson's letter,
but Dr. Lokiemp's (Ph.) and Dr. Ritter's (Ph.) letter, two premier
experts in the field. He would also provide a letter from Dr.
Riederer, a Juneau practitioner. All three of them have concluded
that there are other procedures as safe as this particular measure.
It alarms him when testimony commences with, "I spoke with an
abortionist, a medical doctor." It gives more credence to the
situation when you have actual testimony, in the written form or in
person, where the person who articulates their own experience. He
questioned those sources, the qualifications of the person who
testifies. He referred to the question of whether the state should
invoke legislative authority on how the medical community practices
by saying it has been done in the past. In some circumstances, the
best solution to a medical problem would be for the doctor to
assist in a suicide that is not condoned in the state. So, we are,
in fact, evoking some practices and eliminating others in the
state.
Number 0227
CHAIRMAN GREEN said if you get ten doctors in the room and how you
might get ten different opinions. He asked why there was such a
disparity in opinion. Some say this procedure is absolutely
necessary to protect the life of the mother, others say there are
other ways.
REPRESENTATIVE KOTT answered that it is a perplexing problem and he
would want to turn to the experts in the field. There is a
substantial amount of literature by people who have performed this
procedure and have in many cases testified, under oath. He assumed
they were telling the truth, he gave them the benefit of the doubt.
He thought in those types of cases, you have to turn to the experts
for the truth. There is an abundance of information that suggests
that this particular procedure is not the only procedure that is
available to save the life of the mother.
Number 0444
CHAIRMAN GREEN referred to testimony that this procedure was done
to save the life of the mother or because of severe abnormalities
and then there was testimony saying that 80 percent of these would
live normal, happy lives if they lived. He asked who wasn't
telling the truth.
REPRESENTATIVE KOTT said you have testimony from one side that has
hands-on experience and the other side from a group which most of
the experience comes from a second party or from reading the
literature. He said the committee would have to draw their own
conclusions why there is this wide disparity between what is being
said.
REPRESENTATIVE CROFT expressed curiosity of why HB 65 does not
allow the procedure to be performed to protect the health of the
mother. He referred to the sponsor's statement that he was more
comfortable with written testimony and pointed out a letter from
Sherrie Richey, the first and only Alaskan perinatologist.
Perinatology is a specialty in maternal fetal medicine. She says
that partial-birth abortion is a procedure virtually always chosen
because it is the safest way to terminate a pregnancy complicated
by lethal fetal abnormality or a life threatening maternal
complication. He did not mean to get into a debate, but we have
conflicting medical evidence about whether this is the safest
procedure for the health of the mother. He asked what the
difficulty was with allowing the expert, the person treating that
woman, to determine if this is required to protect her health. For
the legislature to make a determination outlawing it and not
allowing an exception for the health is our, not completely
informed, decision that it can never be the best method to protect
the health.
Number 0640
REPRESENTATIVE KOTT said that when you get into the definition of
what constitutes protecting the health of the mother, you discover,
at least in the literature that he has researched, that it opens up
a pandora's box. About anything you can conceive as being
unhealthy, can be used to protect the mother's health.
REPRESENTATIVE CROFT clarified that he is concerned that the health
issue would be chosen to allow for an elective procedure.
REPRESENTATIVE KOTT felt that, in many cases, it would be the case.
He reminded the committee that the American Medical Association's
legislative council voted unanimously to ban this particular
procedure. He stated that he is not the expert, he is turning to
the experts. The association is a group of qualified people who
make various decisions and express them.
REPRESENTATIVE CROFT said, in order for this legislation to go out
without any proviso for the health of the mother, he had to be
absolutely convinced that this is never a procedure that could best
protect the mother's health. If it could be the best procedure,
then we ought to allow it to be. When there is conflicting
testimony, he would leave it to those people to determine what is
best.
ADJOURNMENT
There being no further business to conduct, CHAIRMAN GREEN
adjourned the meeting of the House Judiciary Standing Committee at
4:30 p.m.
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