Legislature(1997 - 1998)
02/18/1997 08:00 AM House STA
| 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 STATE AFFAIRS STANDING COMMITTEE
February 18, 1997
8:00 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ethan Berkowitz
Representative Fred Dyson
Representative Kim Elton
Representative Ivan Ivan
Representative Al Vezey
MEMBERS ABSENT
Representative Mark Hodgins
COMMITTEE CALENDAR
* HOUSE BILL NO. 65
"An Act relating to partial-birth abortions."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 65
SHORT TITLE: PARTIAL-BIRTH ABORTIONS
SPONSOR(S): REPRESENTATIVE(S) KOTT, Kohring
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
WITNESS REGISTER
REPRESENTATIVE PETE KOTT
Alaska State Legislature
State Capitol, Room 204
Juneau, Alaska 99801-1182
Telephone: (907) 465-3777
POSITION STATEMENT: Sponsor of HB 65.
GEORGE DOZIER, JR., Legislative Assistant
to Representative Pete Kott
State Capitol, Room 204
Juneau, Alaska 99801-1182
Telephone: (907) 465-3777
POSITION STATEMENT: Provided testimony on HB 65.
JANET CREPPS, Director of the State Legislative Program
The Center for Reproductive Law and Policy
120 Wall Street
New York, New York 10005
Telephone: (212) 512-3534
POSITION STATEMENT: Provided testimony on HB 65.
DEBRA JOSLIN
P.O. Box 377
Delta Junction, Alaska 99737
Telephone: (907) 895-4565
POSITION STATEMENT: Provided testimony on HB 65.
BARBARA RAWALT
P.O. Box 823
Delta Junction, Alaska 99737
Telephone: (907) 895-1946
POSITION STATEMENT: Provided testimony on HB 65.
ARTHUR HIPPLER, Executive Director
Alaska Right to Life
P.O. Box 873991
Wasilla, Alaska 99687
Telephone: (907) 376-9234
POSITION STATEMENT: Provided testimony on HB 65.
ELSIE O'BRYAN
P.O. Box 24
Houston, Alaska 99694
Telephone: (907) 892-6683
POSITION STATEMENT: Provided testimony on HB 65.
VIRGINIA PHILLIPS, Member
Alaska Right to Life
404 Lake Street, 2-D
Sitka, Alaska 99835
Telephone: (907) 747-8024
POSITION STATEMENT: Provided testimony on HB 65.
DR. NELSON ISADA
P.O. Box 232169
Anchorage, Alaska 99523-2169
Telephone: (907) 272-6772
POSITION STATEMENT: Provided testimony on HB 65.
ELIZABETH BARRY
P.O. Box 3514
Soldotna, Alaska 99669
Telephone: (907) 262-9790
POSITION STATEMENT: Provided testimony on HB 65.
DR. JAN WHITEFIELD, Medical Director
Alaska Women's Health Services
4115 Lake Otis Parkway
Anchorage, Alaska 99508
Telephone: (907) 563-7228
POSITION STATEMENT: Provided testimony on HB 65.
KAREN VOSBURGH
P.O. Box 1847
Palmer, Alaska 99645
Telephone: (907) 746-6727
POSITION STATEMENT: Provided testimony on HB 65.
TERESA LUNDY
612-A Lake Street
Sitka, Alaska 99835
Telephone: (907) 966-2204
POSITION STATEMENT: Provided testimony on HB 65.
DAVID ROGERS, Representative
Alaska Women's Lobby
P.O. Box 33932
Juneau, Alaska 99803
Telephone: (907) 586-1107
POSITION STATEMENT: Provided testimony on HB 65.
KRISTEN BOMENGEN, Assistant Attorney General
Human Services Section
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided testimony on HB 65.
ANGELA SALERNO, Executive Director
National Association of Social Workers Alaska Chapter
525 Main Street
Juneau, Alaska 99801
Telephone: (907) 586-4438
POSITION STATEMENT: Provided testimony on 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: Provided testimony on HB 65.
SID HEIDERSDORF
P.O. Box 020658
Juneau, Alaska
Telephone: (907) 789-9858
POSITION STATEMENT: Provided testimony on HB 65.
JOHN MONAGLE, President
Alaskans For Life
P.O. Box 210527
Auke Bay, Alaska 99821
Telephone: (907) 789-5910
POSITION STATEMENT: Provided testimony on HB 65.
ROBIN SMITH
14100 Jarvi Street
Anchorage, Alaska 99515
Telephone: (907) 345-4407
POSITION STATEMENT: Provided testimony on HB 65.
EDWARD WASSELL, President
Alaska Right to Life
6421 Ridge Tree Circle
Anchorage, Alaska 99516
Telephone: (907) 346-2337
POSITION STATEMENT: Provided testimony on HB 65.
ACTION NARRATIVE
TAPE 97-15, SIDE A
Number 001
The House State Affairs Standing Committee was called to order by
Chair Jeannette James at 8:00 a.m. Members present at the call to
order were Representatives James, Ivan, Berkowitz, Vezey, Dyson and
Elton. Member absent was Hodgins.
Number 020
CHAIR JEANNETTE JAMES announced Representative Mark Hodgins would
not be here today. He was Chair of the House Special Committee on
Oil and Gas which was also meeting now.
HB 65 - PARTIAL-BIRTH ABORTIONS
The first order of business to come before the House State Affairs
Standing Committee was HB 65, "An Act relating to partial-birth
abortions."
CHAIR JAMES called on Representative Pete Kott, sponsor of HB 65,
to present the bill to the committee members.
Number 032
REPRESENTATIVE PETE KOTT, Alaska State Legislature, said there was
not much to tell on this bill. He called it a pretty simple
measure. It prohibited partial-birth abortions in the state of
Alaska and if a physician performed that measure on a woman it was
considered a class C felony. A copy of his sponsor statement had
already been provided to the committee members. He opted not to
read it into the record.
Number 055
REPRESENTATIVE FRED DYSON asked Representative Kott if other states
had taken similar moves?
Number 057
REPRESENTATIVE KOTT replied other states had introduced similar
measures. House Bill 65 was very similar to the Congressional bill
that was introduced during the last Congressional session.
Number 064
REPRESENTATIVE DYSON asked Representative Kott if the Congressional
bill passed both houses then was vetoed by the President?
Number 066
REPRESENTATIVE KOTT replied that was his understanding.
Number 070
REPRESENTATIVE KIM ELTON asked Representative Kott if the state of
Alaska banned any other type of medical procedure?
Number 074
REPRESENTATIVE KOTT replied he was not aware of any banning;
perhaps someone else knew the answer.
Number 078
REPRESENTATIVE ELTON asked Representative Kott if there were
doctors in the state of Alaska that practiced this procedure now?
Number 081
REPRESENTATIVE KOTT replied it was questionable. He did not have
any specific information on any abortionist or doctor who performed
this procedure in Alaska. That did not mean preventative action
was not necessary, however. There was hearsay that the procedure
had been done in parts of the state. But, because it was hearsay
he did not want to put on the record that it had been performed.
Number 093
REPRESENTATIVE ELTON stated this was not a common procedure. In
fact, the number of terminated pregnancies that occurred after 24
weeks was less than 1 percent of the total number of terminated
pregnancies nation wide. He asked Representative Kott if that was
his understanding as well?
Number 103
REPRESENTATIVE KOTT replied he would submit himself to those
numbers; Representative Elton was in the ballpark.
Number 107
REPRESENTATIVE ELTON asked Representative Kott where the term
"partial-birth abortion" came from? Was it considered a medical
procedure? And, was the medical community familiar with this term?
Number 112
REPRESENTATIVE KOTT called on his assistant, George Dozier, Jr., to
answer that question.
Number 115
GEORGE DOZIER, JR., Legislative Assistant to Representative Pete
Kott, stated the term "partial-birth abortion" was not used in the
medical literature. It was a term that was used by Congress to
describe the procedure that was mentioned by Dr. Martin Haskell in
medical literature.
Number 128
REPRESENTATIVE ELTON asked Representative Kott if he could explain
the circumstances in which this procedure was used? It was his
understanding that it was only used to protect the health of the
mother.
Number 137
REPRESENTATIVE KOTT replied he did not believe that was the case.
It was an elective procedure just like any other form of abortion.
And, there were other methods in his opinion of doing that.
Number 146
REPRESENTATIVE ELTON stated there were only two doctors in the
United States that performed this type of procedure. And, they
only performed the procedure to protect the life of the mother. He
asked Representative Kott if he was correct?
Number 152
REPRESENTATIVE KOTT replied there were more than two doctors, but
whether or not they performed the procedure to protect the life of
the mother he could not say. Dr. Haskell stated that 80 percent of
the abortions performed this way were elective.
Number 162
REPRESENTATIVE ELTON asked Representative Kott to provide to the
committee members the details of Dr. Haskell.
Number 168
REPRESENTATIVE BERKOWITZ asked Representative Kott where he got the
gruesome description of the procedure used in his sponsor
statement?
Number 172
REPRESENTATIVE KOTT replied he obtained it from a number of
sources.
Number 176
REPRESENTATIVE BERKOWITZ asked Representative Kott if he obtained
the information from political or medical sources?
Number 178
REPRESENTATIVE KOTT replied some were published by physicians,
others came from the Congressional testimony.
Number 182
REPRESENTATIVE BERKOWITZ asked Representative Kott who Nurse Shafer
was referenced in his sponsor statement? Where did she get her
experience?
Number 188
REPRESENTATIVE KOTT replied Nurse Shafer had participated in this
type of an abortion and offered her testimony before the U.S. House
of Representatives-Judiciary Committee in 1996.
Number 194
REPRESENTATIVE BERKOWITZ asked Representative Kott if he believed
the testimony of health care professionals was important?
Number 197
REPRESENTATIVE KOTT replied it was important. The testimony
substantiated the event because he had not witnessed it first-hand.
Number 202
REPRESENTATIVE IVAN IVAN asked Representative Kott to define the
term "partial-birth abortion" using layman's terms.
Number 210
REPRESENTATIVE KOTT replied in layman's terms it was an abortion
procedure that was used whereby the fetus was partially outside of
the womb.
Number 217
REPRESENTATIVE BERKOWITZ asked Representative Kott if he would
object to this procedure if it was performed entirely in utero?
Number 220
REPRESENTATIVE KOTT replied, "I would object to it. But then again
that's just my personal belief." He called it irrelevant. He
asked Representative Berkowitz what he meant by that question?
Number 229
REPRESENTATIVE BERKOWITZ stated the thrust of the bill was based on
the position of the fetus in the birth canal. If the procedure was
to take place entirely in utero, then the bill would not cover it.
Number 236
REPRESENTATIVE KOTT replied, "That's true. I don't think the
procedure could be done that way." He would question the sanity of
the physician if he opted to perform a procedure that way. There
were other methods that were safer for the woman.
Number 242
CHAIR JAMES stated she understood that if the child was entirely
out of the mother and then destroyed, it would be murder. She did
not know what it would be called inside the uterus because the
child had no been born yet. That was the concern surrounding the
abortion issue at-large. As long as a child was able to live
outside of the womb then it was not right to destroy it. She did
not know what other options were available to destroy the fetus at
this stage, however. She agreed with Representative Kott that
whether it was destroyed inside, outside or partially inside, it
was not acceptable.
Number 272
REPRESENTATIVE BERKOWITZ stated Representative Kott indicated that
the testimony of health care professionals was important so let's
ask them later when they testify.
Number 276
CHAIR JAMES agreed it was important to ask about the steps of the
procedure.
CHAIR JAMES opened up the meeting to the teleconference network.
Number 302
JANET CREPPS, Director of the State Legislative Program, The Center
for Reproductive Law and Policy, was the first person to testify
via teleconference in New York. She spoke in opposition to HB 65.
She had been a member of the Alaska Bar since 1983 and currently
represented the plaintiffs in the Mat-Su Coalition for Choice v.
Valley Hospital, a case that involved the obligation of a community
hospital to provide abortions. It was currently pending before the
Alaska Supreme Court. The center also represented abortion
providers in Ohio including Dr. Martin Haskell in a challenge to
that state's 1995 law banning dilation and extraction abortions; a
case that dealt with many of the same legal issues raised by HB 65.
The bill was based on an unconstitutional premise-namely that the
government might prohibit a method of abortion that for some women
was the safest and most appropriate medical care. Since the
Supreme Court's 1992 decision in Planned Parenthood v. Casey,
courts evaluated statutes that restricted pre-viability abortions
that HB 65 included. It was not limited to any time in the
pregnancy using the "undue burden" test. The bill failed this test
because in some circumstances the intact dilation and evacuation
method was the safest alternative to all other methods of
terminating a pregnancy. The Supreme Court had already held
unconstitutional a ban on the use of an abortion procedure known as
saline amniocentesis because the ban forced a woman and her
physician to terminate her pregnancy by methods that were more
dangerous to her health than the method outlawed. Under this
reasoning, HB 65 was clearly invalid. It too would require women
to terminate pregnancies by methods that posed a greater risk to
their lives and health. The only court to review a ban similar to
HB 65 was in 1995 in Ohio. The court invalidated the state statute
because for some women the prohibited procedure would be safer than
other available techniques. The Supreme Court had already made it
clear that the state could not make its interest in the fetus
paramount to a woman's health or require a trade-off between a
woman's health and the survival of a fetus. The Alaska Supreme
Court had consistently held that this guarantee provided more
protection of individual rights than the Federal Constitution.
While the court had not yet ruled on a case involving the right to
privacy in the context of abortion, it had held that the Alaska
Constitution protects an individual's right to make choices
affecting his or her body in childbearing. Therefore, even if the
federal courts should stray from the strong protection provided
thus far, HB 65 would still be likely to fail under the Alaska
Constitution. She urged the committee members to not support HB
65.
Number 360
DEBRA JOSLIN was the next person to testify via teleconference in
Delta Junction. She read an article from the Wall Street Journal
dated, September 19, 1996, titled, "Partial-Birth Abortion Is Bad
Medicine." The article can be found in the official committee file
record.
Number 407
BARBARA RAWALT was the next person to testify via teleconference in
Delta Junction. She urged the committee members to pass the bill.
She continued reading the article title, "Partial-Birth Abortion Is
Bad Medicine," that Ms. Debra Joslin started. The article can be
found in the official committee file record.
CHAIR JAMES asked that Ms. Rawalt and Ms. Joslin fax the article to
the committee.
Number 454
ARTHUR HIPPLER, Executive Director, Alaska Right to Life, was the
next person to testify via teleconference in Mat-Su. He
represented the 9,000 members of the Alaska Right to Life
organization. The organization totally opposed partial-birth
abortions. A partial-birth abortion was an attempt to kill a baby
in a willful way because a woman did not want to carry a baby to
full term. The perusal of the medical literature failed to provide
a single instance of support for a medical reason to end a
pregnancy by a partial-birth abortion. In fact, a breech delivery
was inherently dangerous and increased the possibility of mortality
for the mother. Therefore, to kill a baby in that way was for the
specific purpose to avoid criminal prosecution. Moreover, there
were 1,500 partial-birth abortions performed in one clinic in the
state of New Jersey. This procedure was more widespread than
believed to be. He did not know how widespread it was in Alaska,
however. There were two fundamental reasons to support a partial-
birth abortion-to support the right to kill a baby and to make
money. He reiterated the organization supported HB 65 and
Representative Pete Kott and his attempt to ban this type of
procedure.
REPRESENTATIVE BERKOWITZ asked Chair James if he could ask a couple
of questions?
CHAIR JAMES replied, "No. We're just going to take testimony."
REPRESENTATIVE ELTON stated, "So we're just the receptacle....
CHAIR JAMES replied, "We're just taking testimony right now. We
will be able to discuss it afterwards."
Number 497
ELSIE O'BRYAN was the next person to testify via teleconference in
Mat-Su. The safest method to terminate a pregnancy was birth not
an abortion. She questioned the inclusion of the health of the
mother as an exception. The health of the mother was seldom a
factor of a partial-birth abortion. If the mother was in distress
or the child was in distress, what about a Cesarean she asked.
"Does it have to be abortion to protect the life of the mother?"
She mentioned the young couple that was prosecuted for murder for
leaving their child in a dumpster. The young couple would not have
been prosecuted for murder if the baby had been aborted through a
partial-birth abortion. She was aware of a baby born prematurely
who was now a functioning citizen, "So to say that a child can not
be viable is wrong. It's flat wrong."
Number 526
VIRGINIA PHILLIPS, Member, Alaska Right to Life, was the next
person to testify via teleconference in Sitka. She was also the
Alaskan Native spokesperson for the National Right to Life
organization. She supported HB 65 because there was never a true
reason for such a surgical procedure. In addition, a breech birth
was avoided for the health of the mother. The only reason for a
partial-birth abortion was to kill the baby, and "that is
barbaric." "Why is our nation victimizing women and torturing and
killing innocent human babies?" She suggested following the money
trail for the answer. "Some people are getting rich on this
expensive procedure," she declared. Please vote for HB 65.
Number 546
DR. NELSON ISADA was the next person to testify via teleconference
in Anchorage. He was a board certified perinatologist and medical
geneticist. He was also a co-editor and author of numerous
abstracts on problem pregnancies. He opposed HB 65. He explained,
contrary to previous testimony, that problem pregnancies were
common. The bill would interfere with the choices of patients
regarding their pregnancies. They were difficult choices to make.
Moreover, the amount of money sometimes was minimal contrary to
previous testimony. "So to say that we are making hundreds of
dollars, thousands of dollars is simply not the case."
Furthermore, Caesareans were complicated as well. Unfortunately,
the procedure could only be done by draining the fluids out of the
baby's head to avoid surgery. He performed this procedure once
about 12 years ago. It was unusual but it did happen, and it
happened in Alaska. He reiterated he opposed HB 65 and his
colleagues opposed it as well. His colleagues and he were the sole
providers for high risk pregnancies in the state. They also
provided consultation for obstetricians, family practitioners,
M.D.s, nurse practitioners and entry mid-wives. They believed that
the practice of medicine should be left to the hands of the
physicians and the choices should be left to the hands of the
patients.
Number 600
REPRESENTATIVE BERKOWITZ stated the sponsor of the bill indicated
that the baby was withdrawn from the birth canal feet first and
then scissors were inserted into the baby's head. He asked Dr.
Isada if this was the case?
Number 604
DR. ISADA replied, "Not to the knowledge of the people that I know
who occasionally do these. It's pretty bizarre if you ask me."
Number 607
REPRESENTATIVE BERKOWITZ asked, "So, I just want to be clear, that
you don't jab scissors into the back of a fetus's head."
Number 608
DR. ISADA replied, "No." These were very, very rare. If this
needed to be performed a needle could be used to drain the abnormal
amount of fluid. "Now I'm speaking about abnormal fetuses. I'm
not talking about the otherwise so called normal fetus."
Number 613
REPRESENTATIVE BERKOWITZ asked Dr. Isada if it was his contention
that this was a medical issue?
DR. ISADA replied, "Yes."
Number 615
CHAIR JAMES asked Dr. Isada what were the methods used once the
baby was partially out of the birth canal to destroy the child?
Number 617
DR. ISADA replied that once the fetus was partially out the cord
was prolapsed. The cord was out and compressed so the fetus was
not alive. That was the risk of a breech birth. He called it a
moot issue. He was puzzled why people would stick scissors into
the occipital of a fetal head; it was gruesome and difficult to do.
Number 635
CHAIR JAMES wondered if the testimony from individuals that had
seen a procedure such as this was not true. She asked Dr. Isada if
those things did not happen?
Number 638
DR. ISADA replied for an abnormal fetus that was not how it was
done.
Number 640
CHAIR JAMES stated that was not what you would do. But, she asked
Dr. Isada, "You did not say it did not happen?"
DR. ISADA replied, "No." It was a moot point and it was not that
easy to do.
Number 645
REPRESENTATIVE BERKOWITZ stated that the committee members had not
heard any testimony from anybody that had actually seen this
procedure.
CHAIR JAMES stated the committee could get a copy of that
testimony. But, correct, the committee had not heard that today.
Number 650
ELIZABETH BARRY was the next person to testify via teleconference
in Kenai. She was vehemently opposed to partial-birth abortions so
she supported HB 65. The sponsor statement did give testimony of
a witness to a partial-birth abortion. In addition, it was
explained in a video titled, "A Doctor Explains Abortion
Procedures," that the back was also split opened to remove various
internal organs before evacuating the brain. The video, was
available at the crisis pregnancy center in Kenai.
Number 665
DR. JAN WHITEFIELD, Medical Director, Alaska Women's Health
Services, was the next person to testify via teleconference in
Anchorage. He had been performing first and second-trimester
abortions in Alaska for 12 years now. The term "partial-birth
abortion" was a legal term and not a medical term. The dilation
and extraction (D&X) procedure was rare. He had never performed a
D&X procedure. The bill did not describe that procedure, however.
The bill described a partial-birth abortion as a procedure whereby
the baby was partially delivered vaginally. That was a very broad
definition. The bill did not address a viable pregnancy, a third-
trimester pregnancy, a second-trimester pregnancy, or a first-
trimester pregnancy, for example. It only said "a pregnancy." In
his practice all second-trimester abortions that he had performed
were a variation of the same story-an abnormal pregnancy. The
mother was typically in her 30's who delayed childbearing because
she went to school to become an attorney or a doctor, for example.
"Now they have a premium pregnancy. They want to be pregnant.
They want this child." When that person came to him he offered two
procedures-a dilation and evacuation (D&E) or an induction of
labor. In terms of the D&E procedure, sometimes part of the fetus
entered the vagina before the baby died. In terms of the induction
procedure, medicine was given to induce labor. The Center for
Disease Control (CDC) considered the D&E procedure the safest
method.
TAPE 97-15, SIDE B
Number 011
KAREN VOSBURGH was the next person to testify via teleconference in
Mat-Su. She believed in standing for human life; those who could
not speak for themselves. There were 50 million abortions being
performed throughout the world. This teleconference was a "telling
revelation of the steadily declining morality of this nation." The
D&X procedure created the birth of a dead baby. "The result is a
dead baby which is what an abortionist wants. Their worst
nightmare is a live birth during an abortion." Some people call
the baby a fetus, which was a latin term meaning "little one." It
was not a technical term. In addition, she had a problem with an
abortionist calling himself a doctor. A doctor took an oath to do
no harm-abortionists kill. "I wish this nation would get a grip on
its morality. We can still turn it around, but not if we have the
wrong type of legislation."
Number 072
TERESA LUNDY was the next person to testify via teleconference in
Sitka. She was amazed that this issue needed to be debated. She
strongly disagreed with HB 65. It should be eliminated or
completely revised. The D&X procedure was different than a classic
dilation and evacuation procedure because it did not rely on
dismemberment to remove the fetus. The D&E procedure evolved as an
alternative to a second-trimester abortion in the mid-1970's
because of a lack of hospital facilities that allowed for a second-
trimester abortion, because surgeons needed a solution to complete
suction abortions, and to provide a means for an early second-
trimester abortion to avoid installation methods. Most surgeons
found that the classic D&E procedure was difficult because of the
toughness of the fetal tissue. The D&X was never meant to be used
to save the life of the mother due to a physical disorder, illness
or injury as HB 65 pointed out. "I strongly disagree with HB 65.
Not only because it requires a high degree of skill but also it
gives legal permission to go ahead and allow another means to kill
late term babies under the guise of a potentially needed medical
procedure. The partial-birth abortion should be banned in the
state of Alaska."
Number 139
DAVID ROGERS, Representative, Alaska Women's Lobby, was the first
person to testify in Juneau. He read the following statement into
the record:
"The Alaska Women's Lobby opposes HB 65. It is the wrong thing to
do.
"First, a few of our findings as we understand the situation from
reviewing literature and talking to health care providers:
"1. Late term abortion is used in the late second and third
trimesters of pregnancy. It is a rare event: 99% of abortions
occur in the first half of pregnancy; only four one hundredths of
one percent (0.4%) are performed in the third trimester.
"2. Doctors we have talked to tell us they have never met a
patient who did to want and was not completely bonded to her baby
by the third trimester, nor have they known a health care provider
who was not equally concerned about the health of the baby and the
mother by the third trimester.
"3. There are many circumstances besides the saving of the life of
a mother when delivering of a late term pregnancy are indicated.
This procedure may be used when a woman's health (but not life) is
seriously compromised, where there is a dead fetus with a healthy
mother, where there is a healthy fetus in the body of a dead
mother, and when the fetus has been diagnosed with server
disorders. Factors that the doctor must consider when choosing a
medical option in such cases are the length of gestation, the
patient's previous obstetrical history and current presenting
conditions, the facilities available and the availability and
amenability of various techniques.
"4. This procedure is the safest available for some women.
Consider the case of Vikki Stella. At 32 weeks into her much-
wanted pregnancy, she learned that her fetus had nine serious
disorders. Vikki and her husband, the parents of two children,
consulted a series of specialists. None of them could offer any
hope. For Vikki, the safest procedure to protect her health and
preserve her fertility was this later term procedure. `As a
diabetic...this surgery was...safer for me than induced labor of a
C-section, since diabetics don't heal as well as other
people...I've been told mother like me all want perfect
babies...(my son) wasn't just imperfect-he was incompatible with
life. The only thing that was keeping him alive was my body.'
Because Vikki's procedure preserved her family, she and her husband
were able to have another child.
"Last fall, Tammy Wats and her husband were elated by the news of
her pregnancy. An ultrasound in the seventh month, however,
revealed that the fetus was suffering from a devastating
chromosomal disorder and would not live. Knowing that the fetus
was going to die, the Watts made the most difficult decision of
their lives, and Tammy had the type of procedure that would be
banned by this bill. Commenting on her family's tragedy, Tammy
said, `Until you've walked a mile in my shoes don't pretend to know
what it's like for me. Everybody has a reason for what they have
to do. Nobody should be forced into having to make the wrong
decision...'
"5. Limiting this procedure as proposed may place women's health
at risk. Delays that result from having to travel outside the
state for necessary treatment exacerbate this problem.
"6. Finally, American Medical Association policy adamantly opposes
attempts to interfere with the freedom of communication and choice
between a physician and patients: `It is the policy of the
AMA...to strongly condemn any interference by the government or
other third parties that causes a physician to compromise his or
her medical judgement as to what information or treatment is in the
best interest of the patient....
"Madame Chair, these finding tell us that this rare and proper
medical procedure should not be the subject of yet another
restrictive law that will have a chilling effect on a physician's
exercise of discretion in determining the best course of treatment
and that unduly burdens a women's right to choose by unnecessarily
compromising her life and health.
"As is always the case in this arena, professional judgment and
individual considerations must govern actions taken over the broad
spectrum of medical possibilities. Families and their physicians,
not politicians, must be permitted to make the difficult decisions
posed by the rare and heartbreaking circumstances of wanted
pregnancies gone tragically awry.
"This bill is unnecessary, may result in harm to Alaskan women and
only serves to further polarize concerned Alaskans. For these
reasons, the Alaska Women's Lobby strongly opposes HB 65."
Number 222
KRISTEN BOMENGEN, Assistant Attorney General, Human Services
Section, Civil Division, Department of Law, was the next person to
testify in Juneau. The major legal problem with HB 65 was the
vagueness of the definition of the term "partial-birth abortion."
It was not a term readily recognized by medical practitioners to
mean one particular procedure. It could include two or more
medical procedures including the D&E and the D&X procedures. This
was a constitutional defect because due process required that
individuals be given adequate notice of prohibitive conduct in
order to conform their conduct to the law. "When laws are not
clear in describing a prohibited activity, citizens in some
uncertainty may steer far wider from the unlawful zone than is
necessary." A court would scrutinize the law to determine if there
was a chilling effect on the free exercise of a protected
constitutional right-abortion. If it had that effect, it would not
withstand a constitutional challenge at the state or federal level.
Furthermore, the law imposed a criminal sanction on physicians
subjecting them to a class C felony. "Where the description of
prohibitive conduct is imprecise it could be found unconstitutional
because if it subjects physicians to enforcement under unclear or
possibly arbitrary standards, as well." In addition, the bill did
not clearly distinguish pre-viability and post-viability
procedures. The states could not generally regulate pre-viability
abortion procedures in a way that imposed an undue burden on the
woman. That was well established by the U.S. Supreme Court in the
Planned Parenthood v. Casey court case. The court also found that
the D&X procedure could be the safer procedure compared to others.
Therefore, the state should not subject a woman to more dangerous
procedures and place an undue burden. The department would
anticipate a constitutional challenge.
Number 288
CHAIR JAMES asked Ms. Bomengen for her testimony in writing.
Number 291
REPRESENTATIVE DYSON asked Ms. Bomengen if she could assist the
committee members in finding medical and legal language to deal
with the vagueness of the term "partial-birth abortion."
Number 296
MS. BOMENGEN replied she would be happy to work with legislative
counsel to address the issue.
Number 303
ANGELA SALERNO, Executive Director, National Association of Social
Workers Alaska Chapter (NASW), was the next person to testify in
Juneau. The NASW strongly opposed HB 65. She cited that an
abortion late in a pregnancy was rare while 99 percent of abortions
were performed in the first-half of the pregnancy. The bill
attempted to exploit a very rare and tragic occurrence. A
pregnancy that went to the second and third-trimesters were wanted
and planned pregnancies only to be found that the fetus was
incompatible with life. A Caesarean section or forcing labor was
more damaging and dangerous to the mother. Therefore, the D&X
procedure was safeguarding the mother's health and her future
fertility. Testimony indicated from physicians that this bill
would force them into doing a procedure that was more risky. A ban
on a late-term abortion would be an unacceptable intrusion into the
life of the family. These decisions had to be made by families in
crisis and this bill would make that decision much more difficult
for them. Again the debate was being used for a larger strategy to
outlaw all abortions in this country. "Professional social workers
who believe in safe and legal abortion are looking for ways to find
common ground. We're looking for ways that we can all work
together towards the goal of the prevention of unwanted
pregnancies."
Number 367
DR. PETER NAKAMURA, Director, Division of Public Health, Department
of Health and Social Services, was the next person to testify in
Juneau. He was a pediatrician and had not performed an abortion
but was familiar with the medical practice. The problem with HB 65
was that it would preclude the use of a procedure that could be the
best and the most logical choice determined by the physician and in
consultation with the patient. The bill took the decision out of
the hands of the physician and the patient and put it into the
hands of the legislature. The bill attempted to legislate a
practice. The bill was not about whether an abortion should be
done or should not be done, but it was about "how" an abortion
should be done. He reiterated that was a medical decision. In
addition, the majority of the physicians believed that this
procedure was safe. The procedure in question was for a non-viable
fetus so the physician would not be charged with a crime for
delivering a non-viable fetus. Dr. Nakamura wondered if the
numbers would change if the physicians were informed of the
specific definition of a "partial-birth abortion" described in the
bill-the D&X procedure. The D&X procedure was not done in the
state of Alaska. Therefore, passing a piece of legislation for a
procedure that was not done seemed like an awful lot of effort to
stop something that would not happen anyway. The procedure was
attempted not only for the safety of the mother but to protect her
future fertility as well. The physicians that performed abortions
in the state were compassionate and their income was far below
their peers. The average fee was around $400. This was far less
than the fee for carrying a pregnancy to term, for example. He
reiterated the bill was not good and he personally objected to it.
Number 472
REPRESENTATIVE DYSON asked Dr. Nakamura if he spoke for the
Administration?
DR. NAKAMURA replied, "Yes."
Number 475
REPRESENTATIVE DYSON asked Dr. Nakamura if the Administration would
not support a partial-birth abortion if the fetus was viable and
the mother's health and well-being was not involved?
Number 480
DR. NAKAMURA reiterated the issue was not whether a partial-birth
abortion should be done or it should not be done. There were other
laws that applied to a viable fetus that allowed the state to
decide where and how the procedure took place. Did I answer your
question? he asked.
Number 488
REPRESENTATIVE DYSON replied, "No you didn't, but you helped to
narrow it down." The federal law allowed the state to take an
interest in the abortion of a viable fetus. He asked Dr. Nakamura
if the Administration favored any restrictions on abortions after
viability for a healthy child and if the mother's health was not in
danger?
Number 494
DR. NAKAMURA replied, "I can't speak to that issue." He was only
speaking today to the procedure referred to in HB 65.
Number 499
REPRESENTATIVE DYSON asked Dr. Nakamura if he knew of any efforts
of the Administration to protect viable, healthy, unborn children
when the mother's life was not in danger?
Number 504
DR. NAKAMURA replied to the best of his knowledge he did not
believe that the Administration was proposing any legislation that
addressed the issue of abortion.
REPRESENTATIVE DYSON stated, "Or the protecting of the unborn
child."
DR. NAKAMURA replied there was a huge difference between protecting
an unborn child and an abortion. The Administration had proposed
a significant number of health related programs that related to the
protection of the life of a child.
Number 511
CHAIR JAMES stated she had two different pregnancies that ended
with a dead fetus. During one pregnancy, the fetus died at five
and one-half months, of which, it was decided by her and her doctor
to "let nature take its course." At seven months the fetus was
expelled. It was very, very painful, she declared. The doctor was
firm to let nature take its course of action. During another
pregnancy, the child stopped kicking in the womb about 10 days
before she went into labor. The doctor also advised to let nature
take its course. However, her labor stopped, of which, medication
was taken to continue the labor in order to deliver the dead child.
These experiences impressed upon her that nature would take its
course. "Why should we jump in and cause the death of a child
prematurely?" She asked Dr. Nakamura to respond to her particular
circumstances.
Number 543
DR. NAKAMURA replied he could not comment on what she should have
done then, because he did not have all the information necessary to
make a decision. The ability to have all the information was the
issue here and it was being taken away in HB 65.
Number 560
SID HEIDERSDORF was the next person to testify in Juneau. He was
here today to testify in support of HB 65 not because it outlawed
a gruesome procedure but because it was more infanticide than an
abortion. He was opposed to killing a baby. He asked the
committee members to consider if a doctor could do anything wrong
or if a doctor could have a medical practice that was not
acceptable to society. "All we need to do is think back 40 years-
Nazi Doctors-we would say `hey' this has got to be stopped."
Therefore, this was a type of procedure that the state had every
legitimate right to enter into. "As far as I'm concerned the
country was failing in its responsibility to protect the lives of
the unborn." Moreover, the Congressional testimony indicated that
this procedure was not rare. Dr. Haskell personally testified that
he performed over 1,000 of these abortions, of which, the vast
majority were purely elective. Dr. James McMahan personally
testified that he performed 2,000 of these abortions. And, it was
discovered in the one clinic in New Jersey that it performed 1,500
of these abortions. This was not his definition of rare. "I would
be opposed to this procedure, and I think most of us would, for the
killing of one person. That shouldn't be legal. It's just that
simple." Moreover, the bill did include an exception to prevent
the death of the mother so he asked the committee members to not
legislate with the hard cases in mind. In conclusion, it bothered
him that procedures should be allowed because they were safer.
"Abortion is truly a violent, unnatural act. I don't think any of
us can really dispute that. And, childbirth and the procedures
related to it are normal kinds of natural things." Turning the
baby around in the womb was a risky procedure which carried many
risks for injury. Moreover, abortion should be a divisive issue
because it was a fundamental life issue. "Yes, it should be
divisive if you have a group saying they want to kill a certain
category of human beings." That should not have a bearing on the
decision of the bill, however. He encouraged the committee members
to look at the Congressional testimony.
REPRESENTATIVE BERKOWITZ stated he felt compelled to....
CHAIR JAMES stated, "You can wait until we get through....
REPRESENTATIVE BERKOWITZ stated, "I'm not going to be a potted
plant while he sits here and draws a comparison....
CHAIR JAMES asked Representative Berkowitz to be quiet. You will
have a chance later to voice your comments.
REPRESENTATIVE BERKOWITZ stated my comments were directed at this
witness.
CHAIR JAMES stated she understood that, but "please hold your
talk."
Number 647
JOHN MONAGLE, President, Alaskans For Life, was the next person to
testify in Juneau. Alaskans For Life was supported by 1,200
members locally. "My conscience tells me that partial-birth
abortions is nothing short of infanticide." Alaskans For Life
would support anything that protected the life of a child.
Number 654
ROBIN SMITH was the next person to testify via teleconference in
Anchorage. She stated abortion was not pleasant. Dead fetuses
were shocking and the lives of the women involved remained unseen.
She was sorry that this issue continued to weigh so heavily on this
country. "I would prefer to reduce the number of abortions but our
society differs on how to accomplish this task." Some would outlaw
abortions. "I would rather prevent unintended pregnancies." In
addition, the bill would restrict the rights of women and threaten
their health. It interfered in the doctor-patient relationship.
Would men accept such limitation in their medical treatment? she
asked. "Can you imagine men being told prostate cancer treatment
was unavailable because it interfered in potential human life?"
She understood that no example was equivalent to abortion. But,
pregnant women were being treated as mere vessels. The bill would
interfere in late-term abortion procedures. The operation was not
pretty and it was used rarely. These abortions were performed
overwhelmingly due to fetal abnormalities that were incompatible
with life. These were wanted pregnancies and the parents and the
physicians had to make painful decisions. Frequently, the mother's
life and her future reproductive capability were in danger. This
method was the safest and most widely available second-trimester
abortion. "Surely, you would not want the state of Alaska
dictating medical procedure that would impact the life and health
of your wife, daughter, sister, mother or friend. Prevent
abortions by preventing unwanted pregnancies. Please vote against
House Bill 65."
Number 682
EDWARD WASSELL, President, Alaska Right to Life, was the next
person to testify via teleconference in Anchorage. The
organization had approximately 60,000 members statewide. He read
a statement made by a physician.
TAPE 97-16, SIDE A
Number 020
CHAIR JAMES closed the House State Affairs Standing Committee
meeting to public testimony.
CHAIR JAMES stated that the bill needed some redrafting of the
language. She believed better definitions were needed. She asked
Representative Kott if he would be willing to work with her to
draft a clearer statement of what would be outlawed?
Number 033
REPRESENTATIVE KOTT responded he would be more than happy to work
with Chair James. However, the definition in the bill mirrored the
definition in the Congressional legislation. It was the result of
numerous hours of experts in the medical field and their work to
find an acceptable definition that was understandable to everyone
involved. He reiterated, he was willing to work on another
definition, but the experts had already crafted the definition in
such a way that it conformed to acceptable standards.
Number 049
CHAIR JAMES said she appreciated the comments made by
Representative Kott, but the committee members did not have the
other side of the argument as supporting documentation. She
announced she would carry the bill over to Thursday, February 20,
1997.
Number 064
REPRESENTATIVE KOTT replied he had supporting materials. He also
explained that the bill had a House Judiciary Standing Committee
referral.
CHAIR JAMES replied, "I understand that." She was also a member of
the House Judiciary Standing Committee. She reiterated, she would
hold the bill over to Thursday, February 20, 1997.
Number 072
REPRESENTATIVE KOTT further stated that HB 65 did not ban late-term
abortions, contrary to the testimony. Moreover, the American
Medical Association (AMA) had not taken a position on this issue.
However, the AMA's counsel unanimously voted to recommend to the
AMA Board of Trustees their support for this measure.
Representative Kott read the following statement by C. Everett
Koop, former Surgeon General, into the record:
"I believe that Mr. Clinton was mislead by the medical advisors on
what is fact and what is fiction in reference to late-term
abortions. Because in no way can I twist my mind to see that the
late-term abortions 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. It certainly can't be a
necessity for the baby."
REPRESENTATIVE KOTT stated the quote by C. Everett Koop captioned
some of the discussion that had been surrounding this issue.
CHAIR JAMES asked Representative Kott if the committee members had
been supplied a copy of the quote by C. Everett Koop?
REPRESENTATIVE KOTT replied there was a myriad of materials
surrounding the issue as it flowed through Congress over the last
two years.
ADJOURNMENT
Number 118
CHAIR JAMES adjourned the House State Affairs Standing Committee
meeting at 9:40 a.m.
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