Legislature(2001 - 2002)
05/10/2002 01:58 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 10, 2002
1:58 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 363(STA) am
"An Act relating to communications and elections, to reporting
of contributions and expenditures, and to campaign misconduct in
the second degree; relating to disclosure by individuals of
contributions to candidates; and providing for an effective
date."
- MOVED HCS CSSB 363(JUD) OUT OF COMMITTEE
SENATE BILL NO. 364
"An Act relating to medical services under the state Medicaid
program."
- MOVED SB 364 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 363
SHORT TITLE:CAMPAIGN COMMUNICATIONS & DISCLOSURES
SPONSOR(S): RLS
Jrn-Date Jrn-Page Action
04/18/02 2840 (S) READ THE FIRST TIME -
REFERRALS
04/18/02 2840 (S) STA
04/23/02 (S) STA AT 3:30 PM BELTZ 211
04/23/02 (S) Heard & Held
04/23/02 (S) MINUTE(STA)
05/04/02 (S) STA AT 1:30 PM BELTZ 211
05/04/02 (S) Moved CS(STA) Out of
Committee -- Time Change --
05/04/02 (S) MINUTE(STA)
05/06/02 3175 (S) STA RPT CS 4DP NEW TITLE
05/06/02 3175 (S) DP: THERRIAULT, PHILLIPS,
STEVENS,
05/06/02 3175 (S) DAVIS
05/06/02 3175 (S) FN1: (ADM)
05/06/02 3175 (S) FN2: ZERO(GOV)
05/06/02 3175 (S) FIN REFERRAL ADDED AFTER STA
05/07/02 (S) FIN AT 9:30 AM SENATE FINANCE
532
05/07/02 (S) Moved Out of Committee --
Time Change --
05/07/02 (S) MINUTE(FIN)
05/07/02 3198 (S) FIN RPT CS(STA) 5DP 1NR
05/07/02 3198 (S) DP: DONLEY, KELLY, GREEN,
WILKEN,
05/07/02 3198 (S) LEMAN; NR: AUSTERMAN
05/07/02 3198 (S) FN3: (ADM)
05/07/02 3199 (S) FN2: ZERO(GOV)
05/07/02 (S) RLS AT 11:45 AM FAHRENKAMP
203
05/07/02 (S) MINUTE(RLS)
05/07/02 3202 (S) RULES TO CALENDAR 5/7/02
05/07/02 3202 (S) READ THE SECOND TIME
05/07/02 3203 (S) STA CS ADOPTED UNAN CONSENT
05/07/02 3203 (S) ADVANCED TO 3RD READING FLD
Y14 N5 E1
05/07/02 3203 (S) ADVANCED TO THIRD READING 5/8
CALENDAR
05/08/02 3237 (S) READ THE THIRD TIME CSSB
363(STA)
05/08/02 3237 (S) RETURN TO SECOND FOR AM 1
UNAN CONSENT
05/08/02 3238 (S) AM NO 1 ADOPTED UNAN CONSENT
05/08/02 3238 (S) AUTOMATICALLY IN THIRD
READING
05/08/02 3238 (S) PASSED Y19 N- E1
05/08/02 3238 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
05/08/02 3244 (S) TRANSMITTED TO (H)
05/08/02 3244 (S) VERSION: CSSB 363(STA) AM
05/09/02 3460 (H) READ THE FIRST TIME -
REFERRALS
05/09/02 3460 (H) JUD
05/10/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 364
SHORT TITLE: MEDICAID PAYMENTS FOR ABORTIONS
SPONSOR(S): RLS BY REQUEST
Jrn-Date Jrn-Page Action
04/18/02 2840 (S) READ THE FIRST TIME -
REFERRALS
04/18/02 2841 (S) FIN
04/23/02 (S) FIN AT 9:00 AM SENATE FINANCE
532
04/23/02 (S) -- Meeting Canceled --
04/23/02 (S) FIN AT 4:00 PM SENATE FINANCE
532
04/23/02 (S) Moved Out of Committee
04/23/02 (S) MINUTE(FIN)
04/24/02 2920 (S) FIN RPT 5DP 2DNP 1NR
04/24/02 2920 (S) DP: KELLY, GREEN, OLSON,
LEMAN, WARD;
04/24/02 2920 (S) DNP: DONLEY, AUSTERMAN; NR:
WILKEN
04/24/02 2920 (S) FN1: INDETERMINATE(HSS)
05/01/02 (S) RLS AT 10:30 AM BELTZ 211
05/01/02 (S) -- Location Change --
05/01/02 (S) MINUTE(RLS)
05/06/02 3182 (S) RULES TO CALENDAR 1OR 5/6/02
05/06/02 3185 (S) READ THE SECOND TIME
05/06/02 3186 (S) ADVANCED TO 3RD READING FLD
Y13 N6 E1
05/06/02 3186 (S) ADVANCED TO THIRD READING 5/7
CALENDAR
05/07/02 3208 (S) READ THE THIRD TIME SB 364
05/07/02 3208 (S) PASSED Y12 N7 E1
05/07/02 3208 (S) ELLIS NOTICE OF
RECONSIDERATION
05/08/02 3221 (S) RECON TAKEN UP - IN THIRD
READING
05/08/02 3221 (S) PASSED ON RECONSIDERATION Y12
N8
05/08/02 3244 (S) TRANSMITTED TO (H)
05/08/02 3244 (S) VERSION: SB 364
05/09/02 3460 (H) READ THE FIRST TIME -
REFERRALS
05/09/02 3460 (H) JUD, FIN
05/09/02 (H) JUD AT 4:00 PM CAPITOL 120
05/09/02 (H) Heard & Held
MINUTE(JUD)
05/10/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOE BALASH, Staff
to Senator Gene Therriault
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
POSITION STATEMENT: As committee aide for the Senate State
Affairs Committee, which had rewritten the bill substantially,
presented SB 363 on behalf of the Senate Rules Committee,
sponsor.
KAREN VOSBURGH, Executive Director
Alaska Right to Life, Inc.
PO Box 1847
Palmer, Alaska 99645
POSITION STATEMENT: Testified in support of SB 364.
SENATOR DONNY OLSON
Alaska State Legislature
Capitol Building, Room 510
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of SB 364.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of SB 364.
GEORGE UTERMOHLE, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801
POSITION STATEMENT: Responded to questions as the drafter of
SB 364.
ACTION NARRATIVE
TAPE 02-63, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:58 p.m. Representatives
Rokeberg, James, Coghill, and Meyer were present at the call to
order. Representatives Ogan, Berkowitz, and Kookesh arrived as
the meeting was in progress.
SB 363 - CAMPAIGN COMMUNICATIONS & DISCLOSURES
Number 0043
CHAIR ROKEBERG announced that the first order of business would
be CS FOR SENATE BILL NO. 363(STA) am, "An Act relating to
communications and elections, to reporting of contributions and
expenditures, and to campaign misconduct in the second degree;
relating to disclosure by individuals of contributions to
candidates; and providing for an effective date."
Number 0067
JOE BALASH, Staff to Senator Gene Therriault, Alaska State
Legislature, committee aide for the Senate State Affairs
Committee, which had rewritten the bill substantially, presented
SB 363 on behalf of the Senate Rules Committee, sponsor. He
explained that the bill is an attempt to get "some kind of
disclosure on 'issue ads.'" He relayed that the Alaska Public
Offices Commission (APOC) has predicted that issue ads will play
a very large role in the upcoming fall campaign. He noted that
according to Legislative Legal and Research Services, "there
really isn't anything you can compel on a communication or ad
that is purely issues-based." If there is no mention of a
candidate, "basically you can't touch it" because the First
Amendment protects it, he opined. He continued:
So what we decided to do then was take a look around;
we took a look at McCain-Feingold - or Shays-Mehan is
actually the version that passed and the President
signed into law - and looked to see how they kind of
took a crack at this, and [we] came up with what's now
in the bill in Sections 8 and 9. And basically what
we've come up with is a bright-line test, so that the
public will know, when ... they are speaking purely
about issues, ... that they're ... out of bounds, if
you will; they're not covered by any of the APOC
regulations. And if you expressly advocate for a
candidate, you clearly are under the limits.
And we created this other kind of middle part, this
gray area ... in between express advocacy and issue
advocacy, and tried to carve out this electioneering
definition. And so if anybody mentions or ... if they
identify a candidate, [and] discuss an issue of
national, state, or local political concern, and
attribute a position on that issue to the candidate
identified, and it occurs 30 days before a primary or
municipal election, or 60 days before a general
election, then it must come from allowable sources -
the funds used to pay for that - subject to all of the
same restrictions that you as candidates would be
required to abide by.
So, the other parts of the bill -- in [the Senate]
State Affairs [Committee] we heard from APOC ... that
this year the commission ... [is] going to begin to
assess the civil penalties for failure to provide a
contributor's statement - a 15-5 [form]. And so we
discussed ... with APOC the history of the 15-5
[form], and really what it provides is a tool ... for
the public to know what's going on....
Number 0349
MR. BALASH concluded:
As candidates, when you file your reports, you have to
disclose not only your expenditures but all of your
contributors. So it's almost a duplication of
efforts, or I guess it really is a duplication when a
contributor's forced to send in a form. So, bottom
line was, the commission didn't appear to have a
problem with going ahead and just removing the 15-5
[form] altogether, ... as long as we retained a way to
track ... large contributions to ballot proposition
groups.
MR. BALASH, in response to a question, noted that Section 11 of
SB 363 repeals the statute pertaining to the 15-5 form. In
response to another question, he said:
The case law on the First Amendment ... relating to
elections, the most prominent decision is the ...
Buckley v. Valeo [424, U.S. 1 (1976)] decision, and
what the [United States Supreme] Court said was that
if you're going to place any kind of a burden on
speech, whether it be ... disclosure of where the
money came from, whether it's ... simply a "paid for
by" statement, anything, there has to be a compelling
state interest. Now, when you're talking about a
candidate for election who will be going into office
and making decisions that affect the public, there's a
concern that the money used to pay for those ads might
influence that person's decision making once they're
in office, and so there's a threat of corruption - or
at least ... the appearance of a threat of corruption.
And so, because there's that compelling interest, the
[United States Supreme] Court said it's okay to put
burdens on speech in those situations. But when
you're simply out speaking on an issue - income taxes,
for an example - and ... all you want to talk about
are the pros and the cons of an income tax, and you
don't mention a candidate, you don't mention a ballot
proposition, you don't mention political actors at
all, you're just simply talking about an income tax,
there's no threat of corruption, there's not even the
appearance of a threat of corruption. So, without a
compelling interest, you can't place a burden on that
speech. And that's my understanding of the case law,
at any rate.
REPRESENTATIVE JAMES suggested that for some issues, the public
ought to know what group is speaking. She said that would then
be the compelling state interest.
MR. BALASH said: "That was the ... desired goal of the original
version of the bill. I'm not up to speed on the specific case
law, but you may not be able to get there; we weren't able to
find a way."
REPRESENTATIVE JAMES noted that she has no problem with freedom
of speech, but wants to know who is doing the speaking.
Number 0770
REPRESENTATIVE BERKOWITZ turned to Section 9. He said that the
definition of "communication" seems rather sweeping and might
suffer some criticism as being overbroad from a constitutional
perspective. He asked Mr. Balash, "Where is communication used
that would require this definition to apply?"
MR. BALASH said, "It's used in the 'paid for by' section of the
statutes; I think the cite is [AS] 15.13.090, and that's page 2,
Section 5, of the bill."
REPRESENTATIVE BERKOWITZ asked whether any thought had been
given to "adding mass phone calls, which is a new campaign
technique, to that list." He added that now that he knows that
the definition in Section 9 applies to one discrete area, "it
might be appropriate to transfer this definition to that one
discrete section."
MR. BALASH said although SB 363 is not intended to be either an
exhaustive or exclusive list, if "'direct dialing' is something
the committee wanted to add ..."
CHAIR ROKEBERG interjected to say, "I hope this was [an]
exclusive list because, being a politician that has to read the
statutes every election, I would like to make sure there's no
loose ends out there."
MR. BALASH said, "When we were coming up with a list, we didn't
pretend to have everything in mind, and would be open to
suggestions for additions or even subtractions."
CHAIR ROKEBERG asked whether "telephonic campaigning" is
addressed elsewhere.
MR. BALASH said that there is a prohibition on making "factually
false statements" over the phone. He also mentioned that APOC
treats a "push poll" differently from "a poll" in terms of
defining and treating it as an expenditure.
Number 1078
REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual
Amendment 1: on page 4, line 24, add "or automatic
telemarketing". There being no objection, Conceptual Amendment
1 was adopted.
Number 1218
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2: on
page 2, line 25, delete "and address". He said, "It always
strikes me as being a peculiar component of a television ... or
radio ad - 'Paid for by Ethan Berkowitz for State House' - and
then ... listing the entire address."
REPRESENTATIVE JAMES posited that the purpose of listing an
address on such an ad is so that the public will know how to
contact the individual or group paying for that ad.
REPRESENTATIVE BERKOWITZ said, "It's been sort of my experience
in observing campaigns that usually what happens is, someone
makes a mistake - they'll transpose numbers or the numbers won't
be the right size - and that becomes an APOC issue."
CHAIR ROKEBERG said he agrees with Representative James, adding,
"If you have a straw group or a group that was put together as a
subterfuge, and if they don't have an address, you don't know
who you're talking about."
Number 1319
REPRESENTATIVE BERKOWITZ acknowledged that point and withdrew
Amendment 2.
NUMBER 1320
REPRESENTATIVE BERKOWITZ made a motion to adopt a new Amendment
2: on page 2, line 27, change "must" to "may". He remarked
that having timed several radio ads, he doesn't have a campaign
chairperson because having to identify that person would take up
a lot of [airtime].
REPRESENTATIVE JAMES and CHAIR ROKEBERG agreed.
Number 1363
CHAIR ROKEBERG noted that there were no objections to the new
Amendment 2; therefore, Amendment 2 was adopted.
MR. BALASH noted that the adoption of any amendments will
trigger a concurrence vote.
REPRESENTATIVE BERKOWITZ referred to Section 4, and asked why
the amount listed is $500 instead of the $100 it is for
individual candidate campaigns. "Why are we not making this
exactly parallel?" he asked.
MR. BALASH replied:
The ballot proposition group will have to submit a
report prior to the election - I think that the timing
is 7 days, maybe 30 days - and they will go in and
identify sources of contributions ... that are over
$100. However, this provision is a way to get
information out to the public ... so that the public
knows when large sources of funding are coming into a
ballot proposition group, sooner than the ... the 30
days before an election. If there were a particular
item on the ballot, going to appear on the ballot,
nobody would know how much money had been raised by
the particular group supporting or opposing that item,
and this is a tool to help ... track that throughout
the course of the year.
CHAIR ROKEBERG asked whether there are any reporting
requirements for these groups now.
MR. BALASH said yes.
CHAIR ROKEBERG asked, "Then what are we doing differently ... in
adding this subsection?"
MR. BALASH said, "We're adding a requirement ... for
contributions to be reported."
CHAIR ROKEBERG responded: "But they're not now? You just said
they were."
REPRESENTATIVE JAMES added, "More than $500 to a group ...; this
is not the group, but it's to the group."
CHAIR ROKEBERG asked: "Well, what are the reporting
requirements for a group now? This is for an issue? A
noncandidate? Don't they have the 7- and 10-day report and 30-
day report requirement?"
Number 1497
MR. BALASH said: "Yes ..., that's correct. The first report
they will submit to APOC will be 30 days prior to the general
election. And if somebody were to send a check for $600,000 in
June, nobody would know until 30 days before the election.
[Section 4] is requiring the contribution itself to trigger a
report."
REPRESENTATIVE BERKOWITZ mentioned that the amount listed in
Section 4 does not appear to be cumulative like it is for
individuals.
MR. BALASH referred to page 2, line 13, and said according to
that language, "once they've gone over $500, it is intended to
be a cumulative report."
REPRESENTATIVE BERKOWITZ disagreed. He said, "It could be two
$500 contributions within a single period: there's more than
one $500 contribution."
REPRESENTATIVE JAMES pointed out that it would be "30 days from
the time it went over $500, though, so ... the date that it's
due is 30 days after it went over $500."
REPRESENTATIVE BERKOWITZ remarked, however, that according to
the way Section 4 is written:
You could give a check on the first of the month, and
another on the second of the month, and then do the
same reporting on the beginning of the next month for
two checks for $500 each, [whereas] if you give a $250
check and a $250 check aggregating to $500, that
arguably wouldn't have to be reported.
MR. BALASH, in response to a question, acknowledged that "you
can't put a limit on ... contributions to a ballot proposition
group."
REPRESENTATIVE BERKOWITZ noted that according to the way
Section 4 is written, "you could contribute $500 and not make a
declaration; if you make a contribution of $501, then you have
to make the declaration."
Number 1759
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 3:
"on page 2, line 11, after 'contributing' add '$500 or more
calculated on a cumulative basis' or words to that effect, and
deleting 'more than $500'." There being no objection,
Conceptual Amendment 3 was adopted.
Number 1793
REPRESENTATIVE JAMES moved to report CSSB 363(STA) am, as
amended, out of committee with individual recommendations and
the [accompanying] fiscal notes. There being no objection,
HCS CSSB 363(JUD) was reported from the House Judiciary Standing
Committee.
CHAIR ROKEBERG called an at-ease from 2:31 p.m. to 2:34 p.m.
SB 364 - MEDICAID PAYMENTS FOR ABORTIONS
Number 1819
CHAIR ROKEBERG announced that the last order of business would
be SENATE BILL NO. 364, "An Act relating to medical services
under the state Medicaid program."
Number 1839
KAREN VOSBURGH, Executive Director, Alaska Right to Life, Inc.,
testified via teleconference in support of SB 364. She said:
This is a very good bill, and it is necessary to
restrict the Medicaid funding to cover ... only those
abortions that are medically necessary, instead of
using abortion as form of birth control, which is - as
everybody knows here, I'm sure - that about 95 percent
of all abortions are for birth control only. So, I'm
not only speaking for myself and for the Right to Life
board, but there are almost 60,000 in our Right to
Life database, too, that are right behind me on this.
So I just want you to know that there are -- and
there's more than that, this is just only in our
database, there are many more people that are pro-life
that aren't in our database.
So people, for the most part, do not want abortion for
any reason such as what was laid down - you know, ...
the term "health of the mother" when it was first
brought down with Roe v. Wade and Doe v. Bolton. You
know, everybody knows that, too, that the "health of
the mother" refers to physical, or emotional, or
psychological, a woman's age, familial, social, or
economic reasons, and so this cannot be deemed
"medically necessary." "Medically necessary" is what
this bill says it is, and I think it's [a] good bill,
so please do hear it and pass it out.
Number 1974
SENATOR DONNY OLSON, Alaska State Legislature, testified in
support of SB 364. After noting that he has been licensed as a
medical doctor since 1984 and had served on the State Medical
Board for six years, he said that SB 364 does not address the
issue of whether abortion is permitted; instead, it addresses
the issue of which abortions will be paid for with state
funding. He indicated that he, along with others opposed to SB
364, is opposed to having his tax dollars used for a procedure
that he feels is inappropriate.
REPRESENTATIVE BERKOWITZ asked: "Would you think that pacifists
shouldn't pay federal income tax because part of the money goes
to the Department of Defense? Would you think that atheists
shouldn't use money if, say, the faith-based initiative goes
through?"
SENATOR OLSON opined that issues involving pacifists and
atheists are far different than an issue that involves a
therapeutic procedure which requires a physician.
CHAIR ROKEBERG asked Senator Olson to comment on the issue of
whether to include situations involving fetal anomalies and
nonviable fetuses in the category of an allowable reason to use
Medicaid funding for an abortion.
SENATOR OLSON remarked that in addition to the serious types of
cases that were given as examples in previous testimony, the
term fetal anomaly can also be applied to instances in which a
fetus simply has an extra digit. He suggested that if such a
concept were to be included in SB 364, a more specific term
should be used.
CHAIR ROKEBERG suggested the language, "abort a fetus that would
not survive until live birth".
SENATOR OLSON said that the problem with that language is that
it is very difficult for a physician to determine whether "a
fetus will survive a live birth."
TAPE 02-63, SIDE B
Number 2370
SENATOR OLSON, in response to a question, said that if a fetus
dies intrautero (ph), normally it results in a stillbirth. In
response to another question, he indicated, however, that that
does not occur all the time. He reiterated that it is very
difficult to determine whether a fetus will make it to term. He
noted that if an obstetrician makes such a determination, he/she
will be doing so according to his/her "best opinion."
REPRESENTATIVE JAMES relayed that when her own fetus died, the
doctor informed her that the fetus was no longer viable and
recommended that it would be better for her to "let it come
naturally." She said that while that may not be the "right way
to go" in all situations, for her it proved to be the right
choice and she suffered no ill effects to her health for having
gone that route. She indicated that such a decision has to be
between the individual woman and her physician.
CHAIR ROKEBERG asked Senator Olson whether the language in SB
364 would hinder him in his medical practice or cause him to
alter his medical decisions regarding situations in which an
abortion might be an appropriate procedure.
SENATOR OLSON said he does not have any problem with the
language in SB 364.
REPRESENTATIVE BERKOWITZ asked Senator Olson how he would define
"seriously endanger the physical health of the woman".
SENATOR OLSON said, "I would say that if ... a lady's health
obviously - physical constitution - was in some way seriously,
in a quite severe manner, was jeopardized."
REPRESENTATIVE BERKOWITZ asked, "Do you think that would be
subjective from doctor to doctor?"
SENATOR OLSON said: "Oh, for sure. And I think that's one of
the major reasons for this bill, here, is that the subjectivity
is what has incensed a number of people." In response to
further questions, he opined that removing the word "seriously"
would cause the language to become vague, and that legislation
on this issue needs to have language that gets away from a
"vague and loose interpretation."
REPRESENTATIVE BERKOWITZ opined that as currently written, the
language in SB 364 is not clear or instructive.
REPRESENTATIVE COGHILL reminded members that the issue before
the committee revolves around public funding for abortions.
Number 1648
REPRESENTATIVE FRED DYSON, Alaska State Legislature, testified
in support of SB 364. He relayed that with regard to abortion,
the principal issue for many people is the issue of human
rights, adding that in the act of an abortion, a human life is
at stake. He opined that when the patient is a pregnant woman,
ethical doctors realize that they have two patients and must
consider the well being of both. On the issue raised in
previous testimony that nothing can be determined with 100
percent certainty, he opined that in cases where someone is not
absolutely sure, he/she should choose life. He then recounted
some cases of failed abortions.
REPRESENTATIVE DYSON opined that the committee should leave the
word "seriously" in SB 364, indicating that it will ensure that
abortions paid for with state funds are not performed for
trivial reasons. He surmised that people intent upon having an
abortion will be able to find some other method of paying for
it. He said that according to his interpretation of every vote
or poll taken on this issue, people do not favor public funding
of "nonessential abortions." He said:
What you have here before you is a very good piece of
legislation [and] I encourage you to let it stand as
it is; it is exactly the will of the people, it
protects human rights, and [it] avoids us being in a
position of financing the termination of the lives of
children whose only sin is that their presence is
inconvenient and untimely.
REPRESENTATIVE DYSON, in response to a question regarding
nonviable fetuses, indicated that an abortion should only be
performed in those circumstances where it is absolutely certain
that the fetus is dead.
REPRESENTATIVE JAMES reiterated that sometimes it is better to
let a dead fetus come out naturally, rather than performing a
medical procedure. In response to questions, she remarked that
"medically necessary" as defined by "seriously endanger" is
something that will be determined by the doctors in those
situations, and that those determinations should not be
questioned; she acknowledged that different doctors could come
to different conclusions, and noted that a woman has the right
to go see a different doctor for a second opinion.
Number 1035
CHAIR ROKEBERG turned to language on page 2, lines 5 and 6:
"the medication required to treat the illness would be highly
dangerous to the fetus". He asked: "if, in fact, you're
endeavoring to protect the fetus, why do we have to have it [be]
"highly dangerous"? Why not just "dangerous"?
REPRESENTATIVE DYSON suggested using the term "slightly
dangerous".
CHAIR ROKEBERG opined that "slightly" poses the same problem as
"highly" in that they and some of the other words used in SB 364
are setting subjective standards. "We're raising the bar with a
subjective standard," he warned, adding, "I think it's very poor
legal drafting." He again suggested that just "dangerous to the
fetus" is sufficient.
REPRESENTATIVE DYSON said he agrees with Chair Rokeberg on that
point.
CHAIR ROKEBERG, turning to language in [subsection] (b), he
noted that the word "serious" is already used as a qualifier on
page 1, line 12; therefore, including the terms "significantly"
and "seriously" in [subparagraphs] (A) and (B), respectively,
would be redundant and would raise the issue of subjectivity.
REPRESENTATIVE JAMES remarked that every single possible set of
specific conditions cannot be listed in statute, adding that
some measure has to be set, after which it will be up to the
individual woman and her physician to make the determination.
She also remarked that the goal of SB 364 is to eliminate
[public funding for] unnecessary abortions, adding that "when
you try to determine what's necessary, you have to have a bar
somewhere, [and] I don't know that this gets us there, but it's
better than what we have."
CHAIR ROKEBERG opined that the legislature has the duty of
determining what constitutes "medically necessary" and must do
so by defining it with language that is clear rather than
subjective. He then referred to the words "significantly" on
page 1, line 14; "seriously" on page 2, line 1; and "highly" on
page 2, line 5. He asked the drafter whether using those words
as qualifiers was intended to raise the bar, and what his
interpretation of that language is.
Number 0813
GEORGE UTERMOHLE, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, acknowledged that using those words does have the effect
of raising the bar.
CHAIR ROKEBERG turned to the word "serious" as it is used on
page 1, line 12. He asked, "It sets up each of the [paragraphs]
underneath it as having to be of a serious nature, does it not?"
MR. UTERMOHLE said, "The term "serious" modifies "serious
adverse physical condition" and "serious psychological illness".
CHAIR ROKEBERG surmised, then, that statutorily, the bill speaks
of a "serious adverse physical condition" and a "serious
psychological illness" before "we even add the other provisions
of the bill to the interpretation."
MR. UTERMOHLE said, "Yes, Mr. Chairman, that is your starting
point."
CHAIR ROKEBERG asked Mr. Utermohle what would be the impact of
removing "seriously" from page 2, line 1.
MR. UTERMOHLE said that doing so would "reduce the restrictions
on [a physician's] determination as to what endangers the health
of a woman." In response to a question, he indicated that the
same could be said regarding the removal of "highly" from page
2, line 5.
REPRESENTATIVE BERKOWITZ asked, "Could you in any way quantify
what 'seriously endanger' or 'highly dangerous', what the
distinction is, or ... if there's a numerical quantification
that would apply?"
MR. UTERMOHLE said, "Most certainly not; we're talking about
subjective terms here."
REPRESENTATIVE BERKOWITZ asked, "Is there a distinction between
'seriously endanger' on page 2, line 1, and 'highly dangerous'
on page 2, lines 5 and 6?"
MR. UTERMOHLE said, "Those relate to two different standards,
one related to 'seriously endanger' as opposed to 'highly
dangerous'."
Number 0579
REPRESENTATIVE BERKOWITZ asked: "Which is higher? Or which is
more serious?"
MR. UTERMOHLE said, "They're applied to different contexts and
rely upon the expertise of the doctor to apply those terms."
REPRESENTATIVE BERKOWITZ said, "So you couldn't say, if you were
to do a risk assessment, ... that 'highly dangerous' is
aggravated above 'seriously endanger', or the other way around?"
MR. UTERMOHLE said, "No, I could not."
REPRESENTATIVE BERKOWITZ observed that [paragraphs] (1)(B) and
(2) (B) are not parallel in that paragraph (1)(B) uses the term
"seriously endanger", whereas paragraph (2)(B) refers only to
"endangered".
REPRESENTATIVE DYSON said that he has no objection to adding the
word "seriously" to paragraph (2)(B) on line 7. In response to
a question, he agreed that he feels that the language currently
in SB 364 gives physicians enough latitude to make
determinations based on their independent judgment. He surmised
that if a physician makes the determination, in a particular
case, that the woman is better served by having an abortion,
he/she will probably go ahead and perform that abortion; the
question then becomes one of "who gets billed" for those
procedures.
CHAIR ROKEBERG, after noting that no one else wished to testify,
closed the public hearing on SB 364.
Number 0139
CHAIR ROKEBERG made a motion to adopt Amendment 1, which read
[original punctuation provided]:
Page 1, line 12, through page 2, line 8:
Delete all material and insert:
"physician that the abortion is medically
necessary to
(1) treat a serious
(A) adverse physical condition of
a pregnant woman that
(i) either is caused by the
pregnancy or would be significantly
aggravated by continuation of the
pregnancy; and
(ii) would seriously endanger
the physical health of the woman if the
pregnancy were not terminated by an
abortion; or
(B) psychological illness of a
pregnant woman who requires medication for
treatment of the illness if
(i) the medication required
to treat the illness would be highly
dangerous to the fetus; and
(ii) the health of the woman
would be endangered if the medication
was not taken during the pregnancy; or
(2) abort a fetus that would not
survive until live birth."
Page 2, line 13, following "(3)":
Insert ""live birth" has the meaning given in AS
18.50.950;
(4)"
Number 0138
REPRESENTATIVE JAMES objected.
CHAIR ROKEBERG remarked that Amendment 1 basically just adds the
phrase "abort a fetus that would not survive until live birth".
REPRESENTATIVE OGAN surmised that making such a determination
would be difficult to do, and remarked that he finds the
addition of that term objectionable.
REPRESENTATIVE JAMES said that although there may be some
circumstances in which aborting a fetus that would not survive
until live birth would be appropriate, she objects to paying for
such a procedure with state funds.
TAPE 02-64, SIDE A
Number 0072
A roll call vote was taken. Representatives Berkowitz, Kookesh,
James, Ogan, Coghill, and James voted against Amendment 1.
Representative Rokeberg abstained from voting. Therefore,
Amendment 1 failed by a vote of 0-6.
Number 0104
REPRESENTATIVE COGHILL moved to report SB 364 out of committee
with individual recommendations and the accompanying fiscal
note.
Number 0124
REPRESENTATIVE BERKOWITZ objected. He said, "This bill is
severely constitutionally flawed, for the reasons that are
outlined in the ... [State Dept. of Health & Social Services v.
Planned Parenthood of Alaska, et al. (07/27/2001) sp-5443] case,
and also because, based on the testimony I've heard here today,
it's clearly vague beyond any sort of (indisc. - voice faded
away).
Number 0190
A roll call vote was taken. Representatives James, Ogan,
Coghill, Meyer, and Rokeberg voted to report the bill from
committee. Representatives Kookesh and Berkowitz voted against
it. Therefore, SB 364 was reported out of the House Judiciary
Standing Committee by a vote of 5-2.
ADJOURNMENT
Number 0202
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:40 p.m.
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