03/13/2009 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB35 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 35 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 13, 2009
1:35 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Carl Gatto
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 35
"An Act relating to notice and consent for a minor's abortion;
relating to penalties for performing an abortion; relating to a
judicial bypass procedure for an abortion; relating to coercion
of a minor to have an abortion; relating to reporting of
abortions performed on minors; amending Rule 220, Alaska Rules
of Appellate Procedure, and Rule 20, Alaska Probate Rules,
relating to judicial bypass for an abortion; and providing for
an effective date."
- MOVED HB 35 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 35
SHORT TITLE: NOTICE & CONSENT FOR MINOR'S ABORTION
SPONSOR(S): REPRESENTATIVE(S) COGHILL
01/20/09 (H) PREFILE RELEASED 1/9/09
01/20/09 (H) READ THE FIRST TIME - REFERRALS
01/20/09 (H) JUD, FIN
03/09/09 (H) JUD AT 1:00 PM CAPITOL 120
03/09/09 (H) Heard & Held
03/09/09 (H) MINUTE(JUD)
03/11/09 (H) JUD AT 1:00 PM CAPITOL 120
03/11/09 (H) Heard & Held
03/11/09 (H) MINUTE(JUD)
03/13/09 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
CRAIG TILLERY, Deputy Attorney General
Civil Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 35.
KEVIN G. CLARKSON, Esq., Attorney at Law
Brena, Bell & Clarkson, PC
Anchorage, Alaska
POSITION STATEMENT: Responded to questions and provided
comments during discussion of HB 35.
JANET CREPPS, Deputy Director
U.S. Legal Program
Center for Reproductive Rights
New York, New York
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 35.
ACTION NARRATIVE
1:35:57 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:35 p.m. Representatives Ramras, Gatto,
Dahlstrom, and Coghill were present at the call to order.
Representatives Lynn, Gruenberg, and Holmes arrived as the
meeting was in progress.
HB 35 - NOTICE & CONSENT FOR MINOR'S ABORTION
1:36:05 PM
CHAIR RAMRAS announced that the only order of business would be
HOUSE BILL NO. 35, "An Act relating to notice and consent for a
minor's abortion; relating to penalties for performing an
abortion; relating to a judicial bypass procedure for an
abortion; relating to coercion of a minor to have an abortion;
relating to reporting of abortions performed on minors; amending
Rule 220, Alaska Rules of Appellate Procedure, and Rule 20,
Alaska Probate Rules, relating to judicial bypass for an
abortion; and providing for an effective date."
REPRESENTATIVE HOLMES, after noting that HB 35 is similar to the
existing parental consent law that the Alaska Supreme Court
recently found to be unconstitutional [in State v. Planned
Parenthood of Alaska], asked how much the Department of Law
spent defending the existing law.
1:39:26 PM
CRAIG TILLERY, Deputy Attorney General, Civil Division, Office
of the Attorney General, Department of Law (DOL), indicated that
the [State of Alaska] spent approximately $500,000 in litigation
costs, and approximately $940,000 in fees and interest awarded
to the prevailing party. He said he anticipates that if HB 35
were to pass and then be challenged, the [litigation] costs
would be somewhat less [than $500,000] but still expensive.
REPRESENTATIVE HOLMES offered her belief that it is highly
likely HB 35 would be litigated were it to pass, and asked Mr.
Tillery to comment.
MR. TILLERY said he strongly suspects that [HB 35 would
engender] litigation.
REPRESENTATIVE HOLMES asked whether the consent provisions in
HB 35 are similar to those in the existing law.
MR. TILLERY said they are somewhat similar though "more in line
with the issues that concerned the [Alaska] Supreme Court."
REPRESENTATIVE HOLMES questioned whether it would be fair to say
that it is not clear that HB 35 is constitutional.
MR. TILLERY said that is absolutely correct. He added that it
is not clear that it is constitutional, that it is not clear
that it is unconstitutional, but that it is closer to being
constitutional than the [existing] law. It also is unclear how
the Alaska Supreme Court would rule in any litigation engendered
by the passage of HB 35, particularly given the differences in
this bill compared to the existing law and given the fact that
the Alaska Supreme Court would have two different justices
serving on it.
CHAIR RAMRAS characterized abortion as an elective, invasive,
surgical procedure; offered his understanding that minors cannot
elect to undergo any other elective, invasive, surgical
procedure without parental consent; and questioned this seeming
discrepancy.
MR. TILLERY offered his understanding that in Planned Parenthood
of Alaska, the Alaska Supreme Court attached greater rights to
the [pregnant minor] in situations involving the surgical
procedure of abortion than it would have for other surgical
procedures, but surmised that a representative from the [Alaska
Supreme Court] could probably better address that question.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. TILLERY, in response to questions, offered his understanding
that typically, any law passed by the legislature can be the
subject of litigation, and explained that when the legislature
passes a law, the DOL will defend that law, regardless of the
cost to the State, except in instances where it is so patently
unconstitutional that to defend it would cause the [DOL's
attorneys] to violate their requirements of professional
responsibility and their duties to the [Alaska Court System
(ACS)]; HB 35 certainly doesn't meet that criteria, and is
instead a bill that the DOL would defend were it to be passed
into law and then challenged.
1:47:48 PM
REPRESENTATIVE HOLMES pointed out that under a U.S. Supreme
Court ruling, hospitals can, in certain situations, provide
medical care to minors without parental consent, and surmised
that a hospital would deliver a pregnant minor's baby without
parental consent.
MR. TILLERY concurred.
REPRESENTATIVE GATTO, noting that he is a former paramedic,
offered his understanding that providing medical care without
parental consent is allowed in life-threatening, emergency
medical situations.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. TILLERY, in response to a request, offered his understanding
that in Planned Parenthood of Alaska, the Alaska Supreme Court
looked at the right of privacy and determined that it was a
fundamental right, looked at what was proffered as a compelling
state interest and determined that it was indeed a compelling
state interest, and looked at whether requiring parental consent
was the least restrictive means available and determined that it
was not, that a less-restrictive means - that being parental
notification - was available. The Alaska Supreme Court focused
on the existing law's judicial bypass procedures, and expressed
some concerns that those procedures weren't as efficient and
timely as possible. House Bill 35, in contrast to the existing
law, provides an exception for a minor who is the victim of
documented abuse; has a three-day - rather than a five-day -
deadline by which the court must act; has an eight-day - rather
than a nine-day - appeal timeframe; and provides that a pregnant
minor may be excused from school via a confidential court order
[in order to go through the judicial bypass procedure]. The
bill, however, also contains some of the same standards set by
the existing law.
MR. TILLERY said these differences and similarities [in the
judicial bypass procedure provisions] seem to provide a method
by which a pregnant minor may access an abortion in an easy,
straightforward, and quick manner, and nothing else in the bill
seems to detract from that. In response to questions, he
surmised that the court, should HB 35 be adopted and then
challenged, would probably focus on the distinctions between
parental consent as used in the bill and the concept of parental
notification; and that the judicial bypass procedure outlined in
the bill would suffice to mitigate the asserted problem of
providing parents - via consent requirements - with veto power
over a minor's reproductive choice to have an abortion.
MR. TILLERY, in response to questions about the DOL's fiscal
note, offered his understanding that the aforementioned amounts
that the State spent in defending the existing parental consent
law covered all levels of the defense; that that case did go to
trial; and that in-house legal costs don't increase much from
year to year.
REPRESENTATIVE COGHILL, speaking as the sponsor of HB 35,
mentioned that the bill does have a referral to the House
Finance Committee.
REPRESENTATIVE GRUENBERG asked whether under the bill, the
parents of a pregnant minor would be granted the right to
intervene in the judicial bypass procedure.
2:04:25 PM
KEVIN G. CLARKSON, Esq., Attorney at Law, Brena, Bell &
Clarkson, PC, offered his understanding that they would not be
granted that right under the bill because the U.S. Supreme Court
- principally via Bellotti v. Baird - has ruled that a pregnant
minor's parents are not to be notified that a judicial bypass
procedure is occurring because that would then defeat the whole
purpose of the judicial bypass procedure, that being to allow a
minor to obtain an abortion without parental consent or
notification.
REPRESENTATIVE GRUENBERG asked whether the court would have the
discretion to allow the parents of a pregnant minor to intervene
in the judicial bypass proceeding if they did find out about it
and did seek to intervene.
MR. CLARKSON indicated that the court would not have that
discretion; again, the [proposed bill] is designed to prevent
parents from even having knowledge of the judicial bypass
proceeding to begin with.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
2:07:33 PM
JANET CREPPS, Deputy Director, U.S. Legal Program, Center for
Reproductive Rights, concurred with Mr. Clarkson, adding that if
that weren't the case, it would create a constitutional problem.
In response to a further question, she offered her understanding
that there isn't a published decision on that issue.
MR. CLARKSON concurred. In response to another question, he
explained that although the Alaska Supreme Court has already
ruled that there is no distinction between the constitutional
rights of an adult and the constitutional rights of a minor, in
application, the court will take into account the age and
maturity of the particular minor in question when upholding
those rights.
MS. CREPPS agreed, adding her belief that the court will apply a
balancing test regarding the parents' interests and the minor's
interests. The important point to consider with HB 35, though,
is that a minor who is pregnant is facing certain life-changing
events and health issues, thus changing the normal balance that
the court ordinarily seeks in situations involving other medical
procedures [or activities]; the court will be seeking a
different kind of balance simply because the pregnancy itself
has such life-altering consequences.
MR. CLARKSON, in response to a further question, pointed out
that abortion must be viewed in a very unique context, and
explained that when the legislature passed the existing parental
consent law in 1997, it made a policy call and chose the age of
16 as the threshold, surmising that at the age of 17, a girl is
more likely than not to be mature enough to decide for herself
whether she wants to continue with a pregnancy. This policy
call was in part based on the fact that a study conducted in
Massachusetts over the course of several years indicated that
the vast majority of pregnant girls who sought, pursued, and
obtained a judicial bypass of that state's parental consent law
- based on the argument that they were mature enough to make a
decision regarding whether to have an abortion - were 17 years
of age; the bill merely follows that same model and exempts 17-
year-olds from its parental consent/notification requirements.
2:16:22 PM
REPRESENTATIVE HOLMES characterized the bill's requirement of
both parental consent and parental notification as unusual.
MR. CLARKSON explained that in Texas, the legislature passed a
parental notification law first and then passed a parental
consent law, and thus he does not see an inconsistency or a
conflict in HB 35's requirement for both, particularly given
that in order for parents to give consent, they must first have
been notified and thus consent and notice requirements are
compatible.
MS. CREPPS added that there are only a few states that require
both parental consent and parental notification. Also, a unique
factor to consider with HB 35 is that it doesn't provide parents
with an opportunity to waive the mandatory 48-hour delay even
when consenting to an abortion.
REPRESENTATIVE HOLMES questioned whether it is possible that the
court will simply decide that it has already addressed the
issues raised by HB 35 and uphold its prior ruling under the
doctrine of stare decisis.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. CLARKSON said it is possible, but he is reluctant to predict
that that's what the court will do.
MR. TILLERY offered his belief that if the court did hold stare
decisis in a challenge to HB 35, that would, in effect, also be
a ruling on HB 35's proposed changes to the existing parental
consent law.
MR. CLARKSON, in response to a question, opined that the court
would have to analyze the effectiveness and burden of consent
versus the effectiveness and burden of notification under HB 35,
because it's a very different consent bill than the law that was
passed in 1997. For example, under the existing law, a pregnant
minor who has been abused by her parents would still have to go
through a judicial bypass proceeding, whereas under HB 35, such
a person could avoid the judicial bypass proceeding simply by
providing a sworn statement alleging the abuse and having the
abuse corroborated by one of the people listed in the bill.
Such a change constitutes a significant reduction in the burden
being placed on a pregnant minor, and thus the court would be
precluded from simply holding stare decisis.
MS. CREPPS disagreed. She offered her belief that the main
point of the Alaska Supreme Court's opinion in Planned
Parenthood of Alaska is that the existing parental consent
requirement [imbued parents with an unconstitutional veto
power], adding that it is very difficult for her to envision how
the court could analyze a statute requiring both consent and
notice and say that it is less burdensome and provides for a
less restrictive means than either a parental consent statute or
a parental notification statute by itself. She predicted that
the court will find HB 35 unconstitutional just on those grounds
alone even without holding stare decisis, and most certainly
will with such a holding.
2:26:05 PM
MR. CLARKSON, in response to a question, said he doesn't have a
financial interest in HB 35, and was simply asked to testify by
the sponsor. He added, though, that he was compensated by the
State for his legal services in Planned Parenthood of Alaska,
and estimated that he'd received approximately $400,000-$500,000
over the course of 10 years.
MS. CREPPS shared her recollection that her organization - the
Center for Reproductive Rights - received approximately $670,000
of the fees and interest awarded the plaintiffs in Planned
Parenthood of Alaska, and offered to research that issue
further.
REPRESENTATIVE GRUENBERG questioned whether it's possible that
subsidiary litigation would arise should the new justice on the
Alaska Supreme Court who had previous involvement with Planned
Parenthood [of Alaska] refuse to recuse herself from a future
challenge to HB 35.
MR. CLARKSON acknowledged that that issue might be raised,
offering his recollection that that new justice served on the
board of Planned Parenthood of Alaska in 1997 - the year in
which that organization filed its lawsuit challenging the
existing parental consent Act. Whether that involvement would
require judicial recusal, however, is not something he'd venture
to guess, he added.
MR. TILLERY, in response to a question, explained that in
Planned Parenthood of Alaska, the State initially used in-house
counsel, but when those people retired, it hired outside
counsel, including Mr. Clarkson for a period of time.
MR. CLARKSON added that he is the attorney who helped then-
Senator Loren Leman write the existing parental consent law. He
then represented the legislature thereafter as an amicus in the
ensuing litigation, and assisted the DOL at its request, and
then, when the State's in-house counsel retired, he was hired to
take over the State's defense.
REPRESENTATIVE GRUENBERG asked Ms. Crepps whether she thinks the
fact that the bill doesn't allow the 48-hour waiting period to
be waived even when the parents consent to the abortion is
another constitutional infirmity of the bill.
MS. CREPPS said she does think that.
2:31:21 PM
REPRESENTATIVE HOLMES asked whether the term "medical
instability", as used on page 2, line 29, will cause problems.
MS. CREPPS said that term causes her concern, and she thinks
that it - both on its own and within the context of what she
characterized as the fairly convoluted "medical emergency"
definition [provided for via proposed AS 18.16.010(g)(3)] -
would be subject to a claim of unconstitutional vagueness.
MR. CLARKSON said that proposed AS 18.16.010(g) does several
things that reduce the impact of the [existing law], one of
which is that the defense would simply be a defense and no
longer an affirmative defense, and thus the burden of proof
would no longer be borne by the physician/surgeon. With regard
to the term "medical instability, he explained that the evidence
presented at trial in January 2003 - some of which came from
emergency room physicians - indicated that when doctors examine
a patient, in order to determine whether an emergency exists,
they look at whether the patient is stable. He offered his
belief that the term "medical stability" is a concept that
medical students are taught during their first year of medical
school, and that doctors keep that concept in mind every day,
particularly when faced with emergency situations, and so he
therefore disagrees with Ms. Crepps that the aforementioned term
is unconstitutionally vague.
MR. CLARKSON then referred to the term "Clinical judgment" as
used in proposed subsection (g) and defined in that subsection's
paragraph (1), and offered his belief that a physician/surgeon's
clinical judgment is not going to be second-guessed by anybody,
and so there is no constitutional infirmity with [this
provision] because the only thing the physician/surgeon has to
do is exercise his/her discretion in good faith; proposed AS
18.16.010(g)(1) reads:
(1) "clinical judgment" means a physician's or
surgeon's subjective professional medical judgment
exercised in good faith;
MR. CLARKSON pointed out that a physician/surgeon could not use
the defense outlined in proposed AS 18.16.010(g) if he/she were
to make a determination that there was an emergency and perform
an abortion, but do so in bad faith, knowing that there wasn't
really an emergency. In response to a question, he clarified
that in changing the type of defense from an affirmative defense
to just a defense, as the bill proposes to do, the
physician/surgeon would still have the burden of going forward -
presenting evidence that he/she acted in good faith - but then
at that point it would be the duty of the State to prove beyond
a reasonable doubt that the physician/surgeon instead acted in
bad faith, knowing that there wasn't really an emergency.
2:37:46 PM
CHAIR RAMRAS turned the committee's attention to Amendment 1,
labeled 26-LS0192\A.2, Kurtz/Mischel, 3/13/09, which read:
Page 2, line 29:
Delete "medical instability caused by a"
2:38:17 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 1.
CHAIR RAMRAS and REPRESENTATIVE LYNN objected.
REPRESENTATIVE HOLMES said she believes that the language
Amendment 1 proposes to delete will result in the physician not
only having to believe in good faith that delaying an abortion
will create serious risk of substantial and irreversible
impairment of a major bodily function, but he/she must also
[believe] that a delay will also create a serious risk of
creating a medical instability. She characterized this as a
higher burden on the physician/surgeon, and offered her belief
that there will be people who will have a hard time interpreting
the meaning of the language Amendment 1 is proposing to delete.
The risk of performing an abortion without complying with this
provision is a felony, she noted, and opined that the language
in existing AS 18.16.010(g) is sufficient because it already
requires the physician/surgeon to have a good faith belief [that
the abortion should not be delayed]. "I think that we need to
be very careful in the types of burdens we are putting on our
doctors and their judgment; if they think the patient in front
of them needs to have an emergency procedure, I think we, with a
felony hanging over your head if you get it wrong, ... need to
be very careful," she concluded.
REPRESENTATIVE GRUENBERG, in support of Amendment 1, pointed out
that the term "medical instability" is not defined in the bill,
and that there doesn't seem to be a legally-recognized
definition of that term. Since [complying with this
terminology] is a key aspect of the defense, the lack of a
legally-recognized definition may cause that phrase to be
considered constitutionally vague because it's being used in a
criminal context; alternatively, that phrase might be construed
to be so much in favor of the defendant that it won't add
anything to the proposed legislation. In conclusion, he
characterized [the phrase that Amendment 1 is proposing to
delete] as constitutionally suspect and unnecessary, surmised
that it may result in additional litigation and expense, and
said he supports Amendment 1.
REPRESENTATIVE COGHILL expressed a preference for retaining the
language Amendment 1 is proposing to delete, expressing his
belief that a medical instability is an aspect of a medical
emergency.
REPRESENTATIVE GRUENBERG opined that retaining the language
Amendment 1 is proposing to delete will instead create an
additional inconsistency within the regulation of abortions,
because AS 18.16.060(d)(2), which defines medical emergency for
purposes of informed consent, would still read: "a delay in
providing an abortion will create serious risk of substantial
and irreversible impairment of a major bodily function of the
woman".
2:43:21 PM
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 1. Representatives Lynn,
Dahlstrom, Coghill, Gatto, and Ramras voted against it.
Therefore, Amendment 1 failed by a vote of 2-5.
2:43:48 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
labeled 26-LS0192\A.9, Mischel, 3/13/09, which read:
Page 3, lines 6 - 7:
Delete "not less than 48 hours before the
abortion is performed"
Page 4, line 23:
Delete "48 hours"
REPRESENTATIVE COGHILL objected.
REPRESENTATIVE GRUENBERG, recalling Ms. Crepps's comments on
this issue, proffered that the bill's current mandatory 48-hour
waiting period - which he characterized as arbitrary - could
endanger the minor's health, and is unnecessary, particularly in
instances where the parents have already agreed that it is in
their daughter's best interest for her to have the abortion.
Furthermore, no such waiting period is required under current
law. He urged the committee to adopt Amendment 2.
REPRESENTATIVE HOLMES offered her understanding that the
proposed waiting period would be required even when the parents
accompany the minor to the physician/surgeon's office and
consent to her having the abortion, and opined that this is
burdensome and infringes upon the rights of both the minor and
her parents, particularly in situations where travel costs have
been incurred.
CHAIR RAMRAS opined that a waiting period of 48 hours is a
reasonable amount of time.
REPRESENTATIVE COGHILL offered his understanding that from a
practical standpoint, at least that much time passes between a
first appointment with a physician/surgeon and the appointment
wherein the abortion procedure is performed. He characterized
the bill's mandatory 48-hour waiting period as respectful to
"both parties," and indicated that he is opposed to Amendment 2.
REPRESENTATIVE GRUENBERG pointed out that in instance where the
parents are consenting to the abortion, their daughter has
already informed them of her pregnancy and desire to have an
abortion, and yet under the bill, that family - even when they
have been discussing the issue all along - would still have to
wait yet another 48 hours. He said he wants there to be some
discretion on this point, and surmised that Amendment 2 will
effect that. In response to a comment, he indicated that he
would be amenable to possibly amending Amendment 2 such that it
would only address situations in which the pregnant minor is
facing a medical emergency.
CHAIR RAMRAS expressed a preference for addressing Amendment 2
as currently written.
2:49:01 PM
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 2. Representatives
Dahlstrom, Coghill, Gatto, Lynn, and Ramras voted against it.
Therefore, Amendment 2 failed by a vote of 2-5.
2:49:23 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 3,
labeled 26-LS0192\A.1, Kurtz/Mischel, 3/13/09, which read:
Page 2, line 27:
Following "death":
Insert "or serious risk to the minor's health"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG indicated that a serious risk to the
minor's health ought to be included in the definition of medical
emergency as outlined under proposed AS 18.16.010(g)(3)(A).
REPRESENTATIVE GATTO opined that including that language as
Amendment 3 proposes to do would allow the medical emergency
exemption to be applied in instances wherein the minor's mental
health would be adversely affected by the continuation of the
pregnancy. He offered his belief that Amendment 3 would
neutralize the entire bill.
CHAIR RAMRAS concurred.
2:51:30 PM
A roll call vote was taken. Representatives Holmes and
Gruenberg voted in favor of Amendment 3. Representatives
Dahlstrom, Coghill, Gatto, Lynn, and Ramras voted against it.
Therefore, Amendment 3 failed by a vote of 2-5.
2:51:53 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4,
labeled 26-LS0192\A.4, Kurtz/Mischel, 3/13/09, which read:
Page 3, line 17:
Delete "by a declaration of the"
Insert "in a writing signed by the minor under
penalty of perjury."
Page 3, lines 18 - 28:
Delete all material.
REPRESENTATIVE DAHLSTROM objected.
REPRESENTATIVE GRUENBERG explained that Amendment 4 will
eliminate the requirement that a pregnant minor document her
abuse via a notarized statement signed by both herself and one
of the specific people listed under proposed AS
18.16.020(a)(4)(B) who has personal knowledge of the abuse, and
will instead provide that the minor may document her abuse
herself simply by signing a statement under penalty of perjury.
There should not be a necessity, he opined, to have "all these
other people involved"; the right of privacy is at issue, and
the more strictures there are, the more a minor's constitutional
right of privacy is impinged upon, and thus the more likely the
bill will be found unconstitutional.
CHAIR RAMRAS questioned whether a minor would understand the
phrase, "under penalty of perjury".
REPRESENTATIVE GRUENBERG posited that most minors would know it
means that if they lie, they go to jail.
CHAIR RAMRAS disagreed.
REPRESENTATIVE COGHILL pointed out, though, that as currently
written, this provision allows a pregnant minor to bypass even
the judicial bypass procedure and merely requires that both the
minor and a specific type of person submit a notarized
declaration of the abuse. He offered his understanding that
this provision could also serve to uncover the activities of a
perpetrator. The current language is a protection, and provides
a minor with a less-restrictive means of moving forward with an
abortion on her own.
2:56:05 PM
REPRESENTATIVE HOLMES, referring to a copy of the petition to
bypass parental consent that was created for the existing law
before it was ruled unconstitutional, observed that that
petition requires the minor to swear or affirm under penalty of
perjury that certain statements were true; [the courts],
therefore, were already expecting a minor to understand that
concept. She opined that although she appreciates the sponsor's
efforts to address some truly horrific situations wherein abused
minors are facing an unwanted pregnancy, proposed AS
18.16.020(a)(4) as currently written is just too restrictive in
that it's requiring an abused minor to get a very specific type
of person to corroborate her allegations of abuse.
REPRESENTATIVE LYNN noted that proposed AS 18.16.020(a)(4) uses
the term, "a pattern of emotional abuse", and surmised that
teenagers often feel like they're being emotionally abused
whenever they don't get their own way, whereas the type of
people listed in subparagraph (B) of subsection (a)(4) are more
likely to know what emotional abuse really is.
REPRESENTATIVE GRUENBERG offered his belief that the question of
whether the pregnant minor really is the victim of a pattern of
emotional abuse will ultimately be determined by the
physician/surgeon when he/she is deciding whether to perform the
abortion [without providing parental notification and obtaining
parental consent]; the physician/surgeon would be talking with
the minor about the alleged emotional abuse, and any reasonable-
thinking physician/surgeon wouldn't consider situations in which
the minor simply isn't getting her own way as constituting
emotional abuse. He then pointed out that under the language of
proposed AS 18.16.030(b), when petitioning the court for a
judicial bypass, the minor must file the complaint under oath,
whereas the issue of perjury isn't raised at all in proposed AS
18.16.020(a)(4) as currently written, because it only requires
that the declaration of the alleged abuse be signed and
notarized.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
REPRESENTATIVE GRUENBERG said that from a practical standpoint,
under the bill as currently written, a pregnant minor would have
to make at least two trips, either first to the court and then
to the physician/surgeon, or first to the notary public and then
to the physician/surgeon. Under Amendment 4, by contrast, the
minor would just have to make the trip to the physician/surgeon
and while there sign a statement under penalty of perjury
documenting the abuse. That is not a small difference, given
that for a judicial bypass procedure, the bill requires a
pregnant minor to go through the superior court, and since many
communities across the state don't have a superior court, the
minor would therefore essentially be required to travel perhaps
hundreds of miles from a remote village - no small task for a
minor under the age of 17.
REPRESENTATIVE GRUENBERG pointed out that it could also be
difficult for a pregnant minor to obtain a corroborating witness
of the type currently required under proposed AS
18.16.020(a)(4)(B), particularly if she lives in a small village
where almost everybody is related, since most people are
reluctant to testify against a relative. Furthermore, many
communities in Alaska don't have any law enforcement presence to
speak of or any Department of Health and Social Services (DHSS)
personnel, thereby making it impossible for a pregnant minor
living in rural Alaska to obtain a corroborating witness of that
sort. As currently written, the current language in proposed AS
18.16.020(a)(4) raises some significant equal protection
problems for those living in rural Alaska.
3:05:28 PM
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 4. Representatives
Dahlstrom, Coghill, Gatto, Lynn, and Ramras voted against it.
Therefore, Amendment 4 failed by a vote of 2-5.
3:06:08 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 5,
labeled 26-LS0192\A.5, Kurtz/Mischel, 3/13/09, which read:
Page 1, line 3, following "abortion":
Insert "or to bear a child"
Page 7, line 25, following "abortion":
Insert "or to bear a child"
Page 7, line 28, following "abortion":
Insert "or to bear a child"
VICE CHAIR DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG opined that it should also be a crime
under proposed AS 18.16.035 to coerce a pregnant minor into
bearing a child if she doesn't want to; it ought to be the act
of coercion itself that's illegal, regardless of whether it's
coercion to bear a child or coercion to have an abortion. He
offered his belief that proposed AS 18.16.035 is
unconstitutional as currently written.
REPRESENTATIVE COGHILL disagreed, noting that AS 18.16 pertains
to the regulation of abortion. He posited that the current
language of proposed AS 18.16.035 would give the pregnant minor
protection from being coerced into having an abortion, and give
her grounds for emancipation. He said he objects [to
Amendment 5].
REPRESENTATIVE GRUENBERG asked whether proposed AS 18.16.035 is
intended to be a criminal statute.
REPRESENTATIVE COGHILL indicated that it is, adding that his
intention is to prevent a minor from being coerced by a
perpetrator into having an abortion.
REPRESENTATIVE GRUENBERG said he was under the impression that
proposed AS 18.16.035 would create a felony crime in addition to
the general crime of coercion under Title 11. He urged that a
legal opinion be sought on this issue before the bill is heard
in its next committee of referral. He offered a hypothetical
situation involving a contract to illustrate that whether the
coercion is to prevent the signing of a contract, for example,
or to encourage the signing of a contract, it is equally illegal
[under Title 11] - this is a basic legal principle. In response
to a comment, he again urged the sponsor to obtain a legal
opinion on the matter.
VICE CHAIR DAHLSTROM concurred with that suggestion.
REPRESENTATIVE COGHILL agreed to do so.
3:14:54 PM
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 5. Representatives Coghill,
Gatto, Lynn, and Dahlstrom voted against it. Therefore,
Amendment 5 failed by a vote of 2-4.
3:16:22 PM
REPRESENTATIVE COGHILL moved to report HB 35 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE HOLMES objected. She offered her belief that
everyone has the goal of reducing the number of unplanned
[teenage] pregnancies and the resulting need for minors to have
to make a decision about abortion on their own. This is a good
goal, but HB 35 misses the mark and is still unconstitutional
regardless of how it differs from existing law, she opined, and
predicted that it will result in a lot of expensive litigation,
and will instead hurt some teenagers who, for whatever reason,
feel that they can't go to their parents. There aren't any
provisions in the bill that would allow a pregnant teenager to
[obtain consent from] another adult in place of her parents when
her parents wouldn't be the best people to counsel her. "I
don't want teenagers facing these things alone; I know there are
some protections built into this, [but] I don't think they go
far enough," she added.
REPRESENTATIVE HOLMES questioned how a pregnant teenager in a
rural community with limited telephone access and limited access
to the courts is going to be able [to comply with the bill's
judicial bypass provisions]. She said she thinks [the bill]
will fall short [of helping such teenagers], and will instead
result in more late-term abortions being performed.
Furthermore, under the bill, the parents would still have veto
power over their pregnant minor's decision to have an abortion,
and she finds this to be morally troubling, she relayed, and
therefore objects to moving HB 35 from committee.
3:20:52 PM
REPRESENTATIVE LYNN posited that those who support HB 35 believe
that children are a gift from god entrusted to parents for care,
that parental rights are needed in order for parents to fulfill
their parental responsibilities, and that family is the bedrock
foundation of society. He predicted that most parents will
acknowledge that they are imperfect, but pointed out that
parents don't have to be perfect in order to be good parents,
and that the same can be said of children. Parents, he
surmised, as well as himself, believe that without the bill, the
judicial branch of government will have abrogated parental
rights in situations involving teenage pregnancy.
REPRESENTATIVE LYNN offered his belief that those who oppose
HB 35 are obsessed with maintaining every woman's right,
regardless of her age or situation, to have an abortion.
However, he opined, parental rights extend far beyond the
subject matter of the bill, with the bottom line for him being
that children are a gift from god and are not the property of
federal, [state,] or local government, or the judicial or
legislative branch of government. He said that although his
heart goes out to any teenager who finds herself in serious
trouble simply because she made a mistake, consideration should
be given to everyone involved, including the parents and the
fetus. In conclusion, he relayed that he is prolife and
believes the bill is all about parental rights.
3:25:37 PM
REPRESENTATIVE GATTO opined that the terms "clinical judgment",
"good faith", and "necessary" [as used in proposed AS
18.16.010(g)] give a lot of credibility to the concept of moving
HB 35 from committee, and that the bill does have built-in
safeguards.
REPRESENTATIVE COGHILL - remarking that he is a strong advocate
of parents and their responsibilities and rights, and is
cognizant of minors' irresponsibility - said he believes that
the Alaska Supreme Court has given the legislature some
direction regarding what would constitute a lease restrictive
means of balancing the state's compelling interests with [a
minor's rights]. He also believes, however, that the parents'
rights were left out of the balance, and so he wanted to find a
way to give parents the right and responsibility of consent and
yet still provide for those teenagers living in troubled and/or
abusive families. [House Bill 35] strikes that balance, he
opined, and without it, he predicted, minors will become
vulnerable to predators, predators that can currently take their
victims to an abortion clinic and coerce them into having an
abortion. House Bill 35 creates a body of law that will give
good guidelines and protection to minors, protect the parents,
and give "a good template" to both the courts and doctors when
considering those circumstances wherein a pregnant minor seeks
to have an abortion without parental consent/notification,
whether that be through judicial bypass or a declaration of
abuse, he proffered.
REPRESENTATIVE COGHILL said a minor who decides to have an
abortion without parental consent or parental notification might
later regret her decision, particularly if it was arrived at
because someone put pressure on her to have an abortion. The
bill will provide minors with bad-acting parents a good avenue
for moving forward with an abortion without parental
notification or consent. The rights of pregnant minors seeking
an abortion should be protected, but so should the rights of
parents to give counsel and consent, and HB 35 strikes a balance
between reproductive rights and reproductive responsibilities,
and it is therefore with the greatest respect for both pregnant
minors and their parents that HB 35 was introduced. In
conclusion, he asked members to vote to move the bill from
committee.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
3:31:56 PM
A roll call vote was taken. Representatives Gatto, Lynn,
Dahlstrom, Coghill, and Ramras voted in favor of reporting HB 35
out of committee. Representatives Gruenberg and Holmes voted
against it. Therefore, HB 35 was reported from the House
Judiciary Standing Committee by a vote of 5-2.
3:34:15 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:34 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Bellotti v. Baird.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
|
| ACOGStatementofPolicy.pdf |
HJUD 3/13/2009 1:00:00 PM |
|
| State v. Planned Parenthood.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
|
| Letters of SupportOpposition 2.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
|
| Letters of SupportOpposition 1.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
|
| HB35 Sectional.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
HB 35 |
| HB35 Sponsor Statement.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
HB 35 |
| HB35-LAW-CIV-3-6-09 (2).pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
HB 35 |
| HB35-DHSS-MS-03-09-09.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
HB 35 |
| Court Forms re Judicial Bypass.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
|
| Letters of SupportOpposition 3.pdf |
HJUD 3/9/2009 1:00:00 PM HJUD 3/11/2009 1:00:00 PM HJUD 3/13/2009 1:00:00 PM |
|
| HB35 Amendments 1-8.pdf |
HJUD 3/13/2009 1:00:00 PM |
HB 35 |
| Support.pdf |
HJUD 3/13/2009 1:00:00 PM |
|
| Support1.pdf |
HJUD 3/13/2009 1:00:00 PM |
|
| Support2.pdf |
HJUD 3/13/2009 1:00:00 PM |
|
| Support3.pdf |
HJUD 3/13/2009 1:00:00 PM |