Legislature(1997 - 1998)
02/12/1997 01:38 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 12, 1997
1:38 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE JOINT RESOLUTION NO. 10
Proposing amendments to the Constitution of the State of Alaska
relating to the election and the duties of the attorney general.
SCHEDULED BUT NOT HEARD
SENATE BILL NO. 24
"An Act relating to a requirement that a parent, guardian, or
custodian consent before certain minors receive an abortion;
establishing a judicial bypass procedure by which a minor may
petition a court for authorization to consent to an abortion
without consent of a parent, guardian, or custodian; amending the
definition of 'abortion'; and amending Rules 40 and 79, Alaska
Rules of Civil Procedure; Rules 204, 210, 212, 213, 508, and 512.5,
Alaska Rules of Appellate Procedure; and Rule 9, Alaska
Administrative Rules."
HEARD AND HELD
SENATE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
limiting the rights of prisoners to those required under the
Constitution of the United States.
SCHEDULED BUT NOT HEARD
PREVIOUS SENATE COMMITTEE ACTION
SJR 10 - No previous Senate committee action.
SB 24 - See Senate Health, Education & Social Services Committee
minutes dated 1/29/96, 1/31/96 and 2/3/97.
SJR 3 - See Senate Judiciary minutes dated 2/5/97.
WITNESS REGISTER
Dr. Bruce Chandler
1217 W 10th Ave.
Anchorage, AK
POSITION STATEMENT: Opposed to SB 24
Eve Gartner
Center for Reproductive Law and Policy
120 Wall Street, 18th Floor
New York, NY 10005
POSITION STATEMENT: Opposed to SB 24
Senator Loren Leman
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SB 24
John Coghill, Jr.
P.O. Box 58003
Fairbanks, Alaska 99711
POSITION STATEMENT: Supports SB 24
David Rogers
Alaska Women's Lobby
P.O. Box 33932
Juneau, AK 99803
POSITION STATEMENT: Opposed to SB 24
Virginia Phillips
404 Lake St., 2-D
Sitka, Alaska 99835
POSITION STATEMENT: Supports SB 24
Kristen Bomengen
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Presented a legal analysis of SB 24
Mr. Terry Pruett
P.O. Box 57
Tok, Alaska 99780
POSITION STATEMENT: Supports SB 24
Dr. Peter Nakamura
Division of Public Health
Department of Health & Social Services
P.O. Box 110610
Juneau, AK 99811-0610
POSITION STATEMENT: Testified in opposition to SB 24
Sharylee Zachary
P.O. Box 1531
Petersburg, AK 99833
POSITION STATEMENT: Supports SB 24
Angela Salerno, Executive Director
Alaska Chapter of the National Association of Social Workers
525 Main St.
Juneau, Alaska 99801
POSITION STATEMENT: Opposed to SB 24
ACTION NARRATIVE
TAPE 97-6, SIDE A
Number 000
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 1:38 p.m. Senators Taylor, Pearce, Parnell and Ellis
were present. The first order of business before the committee was
SB 24. Chairman Taylor announced he would take teleconference
testimony from out-of-state participants first.
SB 24 PARENTAL CONSENT BEFORE MINOR'S ABORTION
DR. BRUCE CHANDLER , a pediatrician at the Anchorage Health Center,
testified that although the concept of parental notification is
fine in the abstract, he sees a lot of teen patients who do not
come from perfect families. Mandatory parental notification could
put those teens at risk of serious mental or physical injury. He
thinks most teens will be too frightened to use a judicial bypass
procedure and may turn away from any health care at a time they
need it the most.
SENATOR ELLIS asked Dr. Chandler to speak to the potential increase
in liability SB 24 presents for health professionals who perform
abortion procedures.
DR. CHANDLER replied he sees teenagers as part of his pediatric
practice and does not perform abortions, therefore is unable to
speak to the liability issue.
CHAIRMAN TAYLOR asked Dr. Chandler what medical procedures he
performs on minors that do not require parental consent. DR.
CHANDLER replied the standard procedure for routine health care is
to obtain parental consent before a minor is evaluated.
CHAIRMAN TAYLOR affirmed obtaining parental or judicial consent is
standard practice when dealing with juveniles; therefore lack of
consent would subject health care professionals to tremendous
liability. He asked Dr. Chandler to distinguish why a procedure,
such as an abortion, should not require parental consent while
treatment for the flu does. DR. CHANDLER responded the issues of
teenage pregnancy are much more stressful to all those involved
than many other medical issues.
CHAIRMAN TAYLOR noted a doctor would have to do everything possible
to get parental consent to provide treatment to a teenager with a
ruptured appendix who was nearing a life threatening situation.
DR. CHANDLER agreed but repeated in some cases, when a teenager
confides she is pregnant to a parent, the response can put her at
risk.
CHAIRMAN TAYLOR noted as an attorney he represented a hospital in
two hearings involving children of parents whose religious faith
totally opposes the use of blood transfusions. The children would
not have survived if the Court did not intervene and act. In each
case the Court took custody of the child and authorized the
necessary medical procedures. He questioned why the state should
require parental consent from parents of a certain religion or use
the judicial bypass system when a child has a life threatening
condition, but not for an abortion.
DR. CHANDLER replied he is concerned teenagers will not have
advocates and/or the resources to use the judicial bypass in a
transparent and expeditious manner to get the care they need.
CHAIRMAN TAYLOR stated he understood Dr. Chandler's concerns but
felt the public advocacy group and Alaska Legal Services would be
very active and aggressive in such cases.
Number 177
SENATOR ELLIS discussed the contents of a work order from the
Division of Legal Services regarding what activities do and do not
require parental notification or consent in Alaska. The memo
points out students are required to get parental consent for field
trips for liability purposes and as a matter of courtesy for
teachers. AS 25.20.025 does not require parental consent for
medical and dental services to a minor parent and for the minor
parent's child and for the diagnosis, prevention, and treatment of
pregnancy or venereal disease. Parental consent was purposely
omitted for those situations in statute because there is a
fundamental difference in the nature of the situation.
Number 210
EVE GARDNER , staff attorney with the Center for Reproductive Law
and Policy (CRLP), testified in opposition to SB 24. CRLP
attorneys have been involved in nearly every major U.S. Supreme
Court case involving abortion and it is currently challenging
abortion restrictions involving parental involvement laws,
mandatory delays, and numerous other government restrictions on
access to abortion. CRLP currently represents the plaintiffs in
Mat-Su Coalition for Choice v. Valley Hospital, pending before the
Alaska Supreme Court. That case involves the obligation of a
community hospital to provide abortions. SB 24 would make it a
criminal offense for a physician to perform an abortion on a woman
under 18 years of age, unless one of her parents consents to the
procedure or the abortion is authorized by a Superior Court judge.
Any person who fails to comply with these requirements faces
imprisonment for up to five years and a fine of up to $1,000. SB
24 would place numerous and onerous burdens on young women who seek
abortions and the doctors who perform them. SB 24 will undermine
the rights of young women, particularly those who are low-income,
to make reproductive decisions, and will discourage abortions.
Because SB 24 imposes criminal penalties for failure to comply,
some doctors may stop performing abortions for minors. Defeat of
SB 24 is necessary to ensure that young women will continue to
obtain safe and legal medical care in Alaska. SB 24 is not only
bad public health policy, it is unconstitutional. The medical
emergency exception to the bill is impermissibly narrow under long
standing federal constitutional precedents and the judicial bypass
procedure for immature minors fails to meet well-settled federal
constitutional standards. SB 24, in its entirety is
unconstitutional under the Alaska Constitution, which unlike the
federal constitution, explicitly protects an individual's right to
privacy. The Alaska Supreme Court has consistently held that this
explicit privacy guarantee provides more protection of individual
rights than the federal constitution. While the Alaska Supreme
Court has not yet ruled on the case involving the State right to
privacy in the context of abortion, it has held that the Alaska
Constitution protects an individual's autonomy to make choices
affecting his or her body and personal life and has also recognized
that the right to privacy provides protection for personal
decisions about childbearing. Even though federal courts have
upheld the constitutionality of parental consent laws, so long as
they have adequate exceptions for medical emergencies and a proper
judicial bypass procedure, which SB 24 does not, it is very likely
the Alaska Supreme Court will hold that SB 24 violates the Alaska
Constitution's Right to Privacy because it interferes with the
right of young women to make the fundamentally private decision to
terminate their pregnancies. Alaska is one of only four states in
the country that has a free standing provision in its Constitution
establishing a right to privacy. The Florida Supreme Court relied
on that state's constitutional privacy provision to strike down a
parental consent abortion law because the state's interest in
protecting immature minors and preserving the family unit were not
sufficiently compelling to override what the Court called, "the
substantial invasion of the young woman's privacy right created by
the parental consent requirement." On behalf of young women and
health care providers in Alaska, CRLP is prepared to challenge this
measure should it be enacted. Regardless of the outcome,
litigation over the validity of SB 24 will be expensive. In
addition to the state's cost of defending a suit, the state may be
required to pay the plaintiff's costs and attorneys' fees. For
example, in the Mat-Su litigation, plaintiffs' attorneys have been
awarded attorneys' fees of approximately $110,000 for just the
trial court portion of the case. If the plaintiffs win at the
Supreme Court level, it will likely be entitled to additional fees.
Given the high costs of state government, and the unparalleled
needs to support existing social problems, the state should
carefully consider whether passage of SB 24 is the best use of its
resources. CRLP urged the committee to vote against SB 24.
SENATOR ELLIS asked Ms. Gardner to comment on whether requiring
parental consent or judicial bypass will protect the health of
young women in Alaska, and whether there is any validity to the
correlation between abortion in teenage women and a link to breast
cancer.
MS. GARDNER stated abortion is one of the safest medical procedures
performed; twice as many complications occur during tonsillectomies
than from first trimester abortions. The risks to the life and
health of young women are far greater when a pregnancy is carried
to term, such as diabetes, severe hypertension, and complications
in delivery. Regarding the correlation to breast cancer, there
have been no medically accepted studies to date which show any
causal link between abortion and breast cancer and recent studies
in both the New England Journal of Medicine and the Journal of the
American Medical Association found no causal link. A significant
percentage of young girls who carry a pregnancy to term wind up
receiving welfare benefits and not finishing high school. Women who
carry pregnancies to term when they would prefer not to tend to get
less prenatal care and tend to have low-birth weight infants or
other delivery complications. There are significant public health
ramifications of forcing young girls to carry pregnancies to term,
as well as obvious implications for the future of the girls and the
infants.
Number 479
SENATOR LOREN LEMAN , sponsor of SB 24, gave the following overview.
SB 24 is almost identical to SB 105 which was debated during the
last legislative session. A parental consent requirement for a
minor's abortion already exists in statute but is not enforced. SB
24 provides a judicial bypass procedure that the U.S. Supreme Court
determined needs to be in place for the parental consent provision
to be constitutional. Ms. Gardner's suggestion that SB 24 is
unduly restrictive and would not pass U.S. Supreme Court scrutiny
is incorrect. Non-enforcement of the existing statute is rooted in
a 1976 opinion by then Attorney General Av Gross. Proponents and
opponents of abortion recognize the parental consent requirement as
an area of common ground; many agree that parents should be
involved in important medical decisions for their children. The
Clintons have suggested they want, as a national policy, abortions
to be rare and Vice President Gore recently suggested he wants to
seek common ground on this issue. SB 42 provides common ground.
A recent survey of Alaskans, commissioned by Senator Leman and
several others, found 78 percent of respondents support the concept
of an enforceable parental consent law, 16 percent are opposed, and
6 percent are undecided.
SENATOR LEMAN noted he was asked to sign a parental consent form
when his 12 year old daughter got her ears pierced. He believes
abortion is a far more serious medical procedure, and has the
potential for substantial physical and emotional harm to the minor.
For that reason, an enforceable parental consent provision
encourages the health of minors and fosters strong family
relationships. In response to Dr. Chandler's concern about
dysfunctional families, Senator Leman hoped SB 24 will discourage
minors from undergoing an abortion before intelligently discussing
the options.
SENATOR LEMAN responded to Ms. Gardner's legal analysis of SB 24.
Currently, 38 states have parental involvement statutes; 27 enforce
them. In those 27 states, teen pregnancy, teen birth, and teen
abortion rates have decreased. SB 24 is a common sense approach:
it does not take away the right to an abortion. Regarding Alaska's
Right to Privacy, the courts have consistently allowed that minors
be treated differently from adults, therefore he does not believe
the court will rule that the Right to Privacy should override
parental interest in medical decisions. SB 24 identifies the
state's compelling interests as protecting minors against their own
immaturity, fostering the family structure and preserving it as a
viable social unit, protecting the rights of parents to rear
children who are members of their household, and protecting the
health of minor women. He read the following quote from Justice
Anthony Kennedy in the 1990 decision about parental consent in Ohio
v. Akron Center for Reproductive Health, "It is both rational and
fair for the state to conclude that, in most instances, the family
will strive to give a lonely or even terrified minor advice that is
both compassionate and mature. The statute in issue here is a
rational way to further those ends. It would deny all dignity to
the family to say that the state cannot take this reasonable step
in regulating its health professions to ensure that, in most cases,
a young woman will receive guidance and understanding from a
parent." The judicial bypass process in SB 24 provides for
confidentiality, no cost, free legal services, and has been
accepted by the U.S. Supreme Court as constitutional.
SENATOR ELLIS asked Senator Leman whether, in his reference to
President Clinton, he deliberately omitted the President's
expressed concern that abortion be safe and legal. SENATOR LEMAN
responded he did not because SB 24 does not deal with the safety of
the medical procedure of abortion. While he personally does not
believe it is as safe as proponents say, his argument is on behalf
of judicial bypass.
Number 491
SENATOR ELLIS referred to the memo from the Division of Legal
Services, that contains a list of activities requiring parental
consent, and asked Senator Leman's opinion of whether the specific
omission of diagnosis, prevention, and treatment of pregnancy or
venereal disease from the parental requirement was warranted in
statute because of a fundamental difference in nature from other
procedures.
SENATOR LEMAN replied he could not respond without the statute in
front of him. He noted, however, he would want to be informed and
provide consent if any of his children needed treatment for those
conditions and he believes most parents would. He added he
recently learned of a woman who was denied the ability to be with
her daughter who was seeking that type of counsel. The woman felt
her rights as a parent were denied.
SENATOR ELLIS asked Senator Leman's response to public health
officials' warnings that a mandatory reporting requirement for
venereal disease would discourage people from seeking treatment.
SENATOR LEMAN replied he would not be surprised that Dr. Nakamura
and other public health officials would suggest that. SENATOR
ELLIS asked Senator Leman if he would reject that belief as untrue.
SENATOR LEMAN indicated he was not going to suggest that.
Number 529
JOHN COGHILL, JR. , Chairman of the District 32 Republicans,
testified in support of SB 24. The Alaska Constitution is meant to
protect Alaskans, not to give one person more rights than another.
Families have responsibilities to their children, and the state
enforces those responsibilities. When a child is emancipated from
his/her family, that child must have a guardian. SB 24 upholds
parental rights and encourages responsibility. He expects
Legislators to take a courageous move in a culturally changing
situation to preserve the family. Regarding public health policy,
a precedent for parental consent has been established for medical
procedures. Individual rights in Alaska are denoted throughout the
statutes: it is important to also protect the rights of the family.
DAVID ROGERS , representing the Alaska Women's Lobby, read the
following statement into the record.
The Alaska Women's Lobby opposes SB 24. We wholeheartedly
encourage open and honest communication between parents and
their children, and support efforts to prevent teenage
pregnancy; however, we don't believe that SB 24 will
accomplish either of these goals.
Responsible parents should be involved when their young
daughters face crisis pregnancies. It's the hope of every
parent that a child confronting the crisis will seek the
advice and council of those who care for her most and know her
best. In fact, most young women do turn to their parents when
they are considering an abortion. Unfortunately, some women
cannot or will not because they come from homes where physical
violence or emotional abuse are prevalent, or because their
pregnancy is the result of incest of rape.
The government can't force healthy family communication where
it doesn't already exist. Ironically, laws mandating parental
notice or consent can actually harm the young woman that you
are trying to protect by increasing illegal and self-induced
abortion, family violence, suicide, later abortions, and
unwanted childbirth. These concerns are shared by the
American Medical Association and the American Academy of
Pediatrics.
But, doesn't SB 24 solve these well recognized, documented
problems by allowing teens to ask a judge for permission to
terminate their pregnancies, an alternative to parental
consent? We don't think so.
For most adults, going to court for any purpose is difficult,
for teens it can be overwhelming and at times impossible,
especially under these circumstances, assuming they have
reasonable access to a court in the first place. Some young
women will not go or delay going because they fear that the
proceedings are not confidential, or that they will be
recognized by people at the court house. Many will experience
general fear and distress or will not want to reveal intimate
details of their personal lives to strangers. Others won't be
able to attend hearings because they are in school, still
others, victims of rape or incest, will fear the consequences
of possibly having to identify the perpetrators, who, under
state law, must then be reported to the proper authorities.
And if they do eventually find the courage to go to court,
even with the tight deadlines proposed in this bill, the time
it takes to schedule, not to mention appeals, may result in
delays that significantly increase the health risks of the
procedure. We understand and sympathize with the goals of SB
24's sponsors and supporters. In a perfect world all children
should talk to their parents before any decisions are made
about a teenage pregnancy, and in fact most do. But this is
not a perfect world. For a variety of reasons, many young
women will not or cannot talk to their parents or a judge
about this unique, very personal, and very difficult decision.
Unfortunately, instead of transforming dysfunctional families
into stable ones, SB 24 may force many teens - faced with two
equally unacceptable options - to have their stepfather's or
rapist's children, to risk their lives by having illegal or
self-induced abortions or to suffer with the results of
exacerbating an already troubled or dangerous home life.
That's a pretty dear price to pay for a message that may not
be heard.
For these reasons, Mr. Chairman, the thousands of Alaskans
represented by the Alaska Women's Lobby oppose SB 24.
TAPE 97-6, SIDE B
Number 580
SENATOR MILLER commented a lot of people and groups testify that
they would like to see the number of abortions reduced, but every
time someone comes forth with a proposal, it gets shot down. He
asked Mr. Rogers to ask the Alaska Women's Lobby to offer a
constructive proposal to reduce the number of abortions.
MR. ROGERS appreciated Senator Miller's comments and felt one
response is to focus on the prevention of pregnancy. He encouraged
committee members to review a 1979 report entitled Three a Day and
suggested focussing on comprehensive prevention strategies. He
offered to get back to the committee after talking to the Alaska
Women's Lobby.
CHAIRMAN TAYLOR stated current standards regarding the health of
teens are inconsistent. The same people who are advocating
extensive measures to curb teen smoking are distributing free
condoms and encouraging early sexual activity. Some are fighting
to protect the juvenile's right to choose to be sexually active,
while saying those same juveniles don't have enough brains to
decide whether to smoke a cigarette. He noted the minimum age for
consensual for sexual activity is 13.
MR. ROGERS said one common response is that nothing ever works, but
he was not sure whether a comprehensive view of the problem and
solutions has ever been undertaken.
CHAIRMAN TAYLOR noted Senator Leman suggested the 27 states with
parental consent laws have lower rates of venereal diseases, lower
rates of teenage pregnancy, and lower abortion rates. He asked Mr.
Rogers how he would explain the lower rates.
MR. ROGERS stated although those statistics are probably
legitimate, one could find other legitimate studies that contradict
them. He added there are children who have been killed by their
own fathers and children who have died from illegal abortions
because they did not want to tell their parents. The Alaska
Women's Lobby is concerned that passage of SB 24 will result in
more of those cases.
Number 526
CHAIRMAN TAYLOR indicated he intended to hold SB 24 in committee
for another week, and asked Mr. Rogers to provide some alternatives
to the committee and to review Senator Leman's statistics for
accuracy.
Number 516
SENATOR PEARCE commented abstinence-based sex education works,
however whenever a school system tries to teach any sex education
program there is opposition by a number of parents who do not want
anyone but themselves teaching their children about sex education,
whether abstinence-based or not. In her opinion, most of the
people leading the charge against sex education in schools are the
same people who are pro-life.
VIRGINIA PHILLIPS testified via teleconference from Sitka in
support of SB 24. After the end of World War II she lived in
Vienna, Austria with her husband and three children and became
pregnant. Her husband was having an affair and forced her to have
an abortion. Although she was an adult, she was terrified during
the experience. She believes young women who choose to have an
abortion need the comfort and protection of their parents. She
spoke of the negative physical effects she experienced after the
abortion, and believes teenagers will experience the same symptoms.
She has spent a lot of time dealing with the emotional and mental
repercussions. She questioned how many legal abortions performed
in hospitals have been bungled, resulting in injury or death while
doctors and hospitals are able to hide behind the privacy right of
the patient. She asked committee members to not trust the false
words of compassion for young mothers spoken by the experts who are
actually expressing compassion for their bank accounts. If they
were truly compassionate, they would perform these services for
free.
Number 454
KRISTEN BOMENGEN , Assistant Attorney General, Department of Law
(DOL), focussed her remarks on the legal issues raised by SB 24.
A provision in the Alaska statutes requires parental consent for
abortions for minors, but is not enforceable, in part because it
serves as an absolute barrier to access if a minor does not have
parental consent. A judicial bypass procedure has been adopted by
many states to meet constitutional requirements, and in some states
has been upheld. DOL believes the consent requirement would be
determined unconstitutional under the Alaska Constitution if tested
in Alaska courts, based on a study of state jurisprudence and other
states that have scrutinized similar consent statutes under a
broader privacy right analysis. DOL's analysis distinguishes
between the federal privacy protection analysis and an analysis
under Alaska's Constitution. Other states with a broader privacy
protection have encountered difficulties in enforcing their
parental consent statutes. Florida and California presently have
unenforceable consent statutes: in Florida the statute was ruled
unconstitutional, in California the case is pending appeal.
MS. BOMENGEN explained DOL believes the Alaska Court would find a
minor has a fundamental right to privacy. Although the Court may
acknowledge the state's interests, articulated in Section 1, are of
a legitimate and compelling nature, the state would be required to
demonstrate that the consent requirements do not place an undue
burden on a young woman and that the state's interests are actually
furthered by the parental consent requirement. This test has been
difficult for other states to meet, especially with regard to
interests such as fostering family relationships, partially because
no facts support the assertion that the requirement actually
encourages the communication to take place. Regarding the state's
interest in protecting the health of minors, minors are more well
informed about their own medical needs. The maturity of the minor
and the level of knowledge will have to be balanced against the
possibility that a minor faced with limited access will postpone a
decision thus increasing risks, or seek an illegal remedy or self-
inducement. A lower court in California found overwhelming
evidence that the state's interests were not advanced by the
consent statute.
MS. BOMENGEN believes equal protection rights might be of concern
because of the unavailability of easy access to the court system
that may be encountered in rural Alaska communities. This problem
is unique to Alaska so it may distinguish the appropriateness of
the judicial bypass procedure in Alaska from other states.
MS. BOMENGEN noted DOL's third concern is more of a legal policy
matter. Tort issues are being closely scrutinized by this
Legislature and the creation, in Section 3, of a new course of
action might be appropriately addressed in that general context.
In summary, Ms. Bomengen summarized she expects passage of SB 24 to
instigate a constitutional challenge and that the consent
requirement could very well fail.
Number 393
SENATOR PEARCE asked if there are rural areas of the State where
one can get an abortion but cannot get access to the court system.
MS. BOMENGEN did not know but clarified the State is not in the
business of providing medical services in rural communities but is
in the business of providing judicial access. The facts of a case
will present whether a judicial bypass procedure was genuinely
available to an individual minor.
SENATOR PEARCE asked, if the abortion procedure is unavailable in
an area, what difference it would make if the judicial procedure
was available. MS. BOMENGEN believed the availability of access to
the judicial procedure in a community would be scrutinized.
SENATOR PEARCE discussed the reference to incest in SB 24 and then
referred to the judicial bypass provision on page 5, line 17, and
questioned what would be considered clear and convincing evidence
to determine whether a 17 year old is sufficiently mature and well
enough informed. MS. BOMENGEN replied the judge would ask
questions to find out the premise for the minor's decision. Court
judges are familiar with making that kind of inquiry because they
make determinations for emancipation.
SENATOR PEARCE asked if a test for emancipation is set in law . M
BOMENGEN replied there is an emancipation procedure available in
law that a model could be built on.
SENATOR PEARCE noted the language on lines 26 - 29, "...if the
complainant has alleged that one or both of the woman's parents,
guardian or custodian was engaged in a pattern of physical, sexual
or emotional abuse against the woman, or that the consent is not in
the best interest of the complainant,..." refers only to parents
and not brothers, grandfathers, and uncles. She stated if a woman
became pregnant by a family member, the court can only allow a
judicial bypass if it finds, by clear and convincing evidence, that
there is evidence of a pattern of physical, sexual or emotional
abuse, by one of the parents. However, on page 6, line 14, the
court may not notify the parents of the complainant's pregnancy or
request to have an abortion, She questioned how one gets clear and
convincing evidence of a pattern of abuse without asking, and how
confidentiality could be kept by a judge trying to meet this test.
Number 326
MS. BOMENGEN commented SB 24 does place a significantly higher
burden on a complainant than the standard required to take action
to protect a child. The clear and convincing evidence requirement
will be a difficult test for the court to apply, especially with
regard to generating enough evidence. She noted she does not know
whether the emancipation test requires a preponderance of the
evidence or clear or convincing evidence.
CHAIRMAN TAYLOR pointed out a preponderance of the evidence was
required in the O.J. Simpson civil case. MS. BOMENGEN added the
"beyond a reasonable doubt" standard is the highest standard, the
"clear and convincing evidence" standard requires that the evidence
be weighted more on one side.
CHAIRMAN TAYLOR questioned whether that standard must be met in
child abuse cases. MS. BOMENGEN answered the clear and convincing
evidence standard is not the standard test but that test does arise
in some cases under the Indian Child Welfare Act.
Number 298
SENATOR PARNELL commented if a minor child was in court making
allegations about activities in her own home, there would be no
other rebutting evidence. He asked if the evidence would be
considered clear and convincing if the judge believed that child.
MS. BOMENGEN was unsure, but believed the hearing would be
described as ex parte.
SENATOR PARNELL said he shares Senator Pearce's concern about abuse
by members of a household other than the parents. CHAIRMAN TAYLOR
noted SB 24 is solely and narrowly focussed upon a need for
parental consent. The bill does not address stepfather consent, or
consent from any other family member. If another family member is
involved, the parent does get involved. If the parent is involved
in incestuous activity, the judicial bypass provision can be used.
MS. BOMENGEN agreed with Chairman Taylor's analysis, but noted that
parents do not always provide the necessary support in such
instances because a favorite relative might be involved.
SENATOR PARNELL asked whether any other jurisdictions, with an
expressed right of privacy, have held legislation similar to SB 24
valid. MS. BOMENGEN was not familiar with any. SENATOR PARNELL
asked if she looked at all states with a right of privacy. MS.
BOMENGEN replied she reviewed the Florida and California cases and
did a survey of cases in other states.
SENATOR PARNELL asked if Ms. Bomengen was familiar with any rural
communities in which abortion services are available but judicial
access is not. MS. BOMENGEN was not aware of any, but repeated the
State is not in the practice of offering general health services.
Her concern is with the State's responsibility to citizens to make
judicial access available and what expectations may be placed on
that availability where there is a five day turn around time.
SENATOR PARNELL asked whether Ms. Bomengen had any proof an equal
protection problem exists or whether she raised the question as a
warning. MS. BOMENGEN replied a test similar to the one applied to
the privacy right analysis would be applied to the equal protection
clause.
Number 223
CHAIRMAN TAYLOR commented on the many ways the privacy right is
applied to totally different situations. He discussed the Herb
Raven case and how the privacy right was successfully applied to
justify the possession of marijuana but was unsuccessful in a case
involving cocaine possession. He asked how DOL chooses to enforce
some statutes based on a concept of privacy, but not others.
MS. BOMENGEN replied enforcement of the laws is not always in DOL's
hands. When a statute includes the imposition of criminal
penalties, enforcement falls to DOL; however, increased tort
liability places enforcement in the public's hands.
CHAIRMAN TAYLOR referred to AS 11.61.123(a), which prohibits a
juvenile from viewing an indecent photograph without parental
consent, and contains criminal penalties and asked how DOL would
apply the juvenile's right to privacy to that situation.
MS. BOMENGEN answered she is not completely familiar with the level
of protection offered in the viewing of pornography and the
circumstances under which it is regulated, however the right to an
abortion under the federal constitution is entitled under the
privacy protection.
CHAIRMAN TAYLOR repeated very different standards are being applied
for rather innocuous activities and it seems DOL is espousing
different positions on them. He asked her to research the
questions asked by Senators Pearce and Parnell and to review the
document provided by Senator Ellis so that she can inform the
committee on how DOL determines which activities will be defended
under the Right of Privacy.
Number 113
TERRY PRUETT , a pastor, testified via teleconference from Tok in
support of SB 24. He believes the issues involved are the well-
being of young children, the respective rights of the young women
and their parents, and their responsibilities. The concept and
practice of responsibility must be accepted and promoted in the
home and society, or people will simply become less responsible.
The primary reason we have a nation and state ruled largely by
responsible people is because the majority of us were taught
responsibility. Many dysfunctional families exist, yet he is
convinced the majority of parents do their best to be responsible
to their children. He suspects the majority of teen pregnancies
are not the result of incest. He believes our nation has elevated
rights over responsibilities and made it increasingly easy for
people who have acted irresponsibly to avoid the consequences of
that behavior.
Number 043
DR. NAKAMURA , Director of the Division of Public Health, Department
of Health and Social Services (DHSS), discussed SB 24 as follows.
The common ground on this issue is the belief that parents should
be responsible in seeking care for their children, that most
parents are well meaning, and that children generally benefit from
parental involvement. Unfortunately, a significant number of
families are dysfunctional. Prevention is key, and early
intervention to create healthy family activities and communication
is occurring. Of the total number of minors who are pregnant, at
least 20 percent do seek counsel from a responsible adult other
than a parent. One-third of the minors who do not seek the
involvement of their parents are in home situations with domestic
violence, coercion, and/or lack of trust. SB 24 would mandate that
these children be required to deal with these pathological home
situations, possibly endangering themselves further. Physicians
and health care providers, in all situations, explain the options
to pregnant minors. If it becomes apparent the minor is unable, or
unwilling, to face their parents, the provider must decide whether
to stop helping the minor, in which case the minor may seek an
illegal abortion. The judicial bypass procedure makes sense except
that it is very intimidating for a minor to deal with the court
system, and it is difficult to access. Legal abortions are not
performed in rural communities, nor is there judicial access.
Sometimes a child does not want to hurt her parents by informing
them of the pregnancy. Professional counselors do encourage minors
to seek parental guidance. If a minor is required to access the
judicial system to get consent, there will be a significant delay
and a barrier.
TAPE 97-7, SIDE A
Number 080
DR. NAKAMURA discussed the issue of the health risk of abortion.
Although abortion is a serious procedure, the risks of childbirth
at any age is 20 times higher, and 200 times higher for minors,
than for an early abortion. No correlation has been found between
breast cancer and abortion, and a recent study of 1.5 million women
in Denmark concluded there is no correlation between abortion and
any type of cancer. Regarding the issue of psychological damage
resulting from an abortion, a literary review of 225 studies
concluded psychological damage increases significantly when a minor
has no choice but to give birth to an unwanted child, compared to
minors who had abortions. A historical trend shows psychological
damage was significantly higher for those who had abortions when
the procedure was illegal and unaccepted by society.
DR. NAKAMURA indicated more than 40 health related organizations,
including the Academy of OBGYN Pediatrics, have testified against
mandatory parental consent. Regarding privacy and confidentiality,
maintaining confidentiality in rural communities could be difficult
because extended families are not uncommon among Alaska Native
families, and finding the true parent could require asking many
community members. In response to Senator Leman's statement about
the successful outcome of enacting similar laws in other states,
the States of Rhode Island, Mississippi and Massachusetts have
found that 39 to 49 percent of minors went out-of-state to have
abortions performed. The number of deliveries increased in some of
those states, but so have the number of adults having babies, and
more second trimester abortions were performed.
DR. NAKAMURA concluded by saying he is concerned SB 24 will
criminalize an act of physicians or providers if, in consultation
with their patients, they feel that lack of parental consent for an
abortion is safer for the minor and perform the procedure.
Number 199
CHAIRMAN TAYLOR asked if DHSS has statistics on the percentage of
abortions performed on minors. DR. NAKAMURA replied that kind of
condition is not reportable so those numbers are not available.
CHAIRMAN TAYLOR asked if the state funds abortions. DR. NAKAMURA
responded it is an allowable Medicaid reimbursement.
CHAIRMAN TAYLOR asked if it is reported as such a procedure for
funding purposes. DR. NAKAMURA answered DHSS could determine the
number of abortions paid for with Medicaid funds, but that number
would not reflect the total number performed. He added age
information could also be determined. CHAIRMAN TAYLOR asked him to
provide those numbers, as well as the number of minors who have had
more than one abortion. He noted he was recently informed of
situations where women have repeated abortions and use it as a form
of birth control.
SENATOR PARNELL questioned how Dr. Nakamura came up with the
percentages of minors who do and do not inform their parents when
the annual number of abortions performed in Alaska on minors is not
available. DR. NAKAMURA said he was using national figures.
Number 260
SENATOR PARNELL asked what a pregnant teen in a rural community
would do if she wanted to have an abortion and didn't want to tell
her parents. DR. NAKAMURA said hopefully an adult would guide her
to a clinical or medical situation where she could get adequate
consultation. If no responsible adult is involved, it is likely
the child will not inform anyone until later in the pregnancy. She
may terminate the pregnancy herself, or may find a way to get to a
larger community with the hope of finding abortion services.
SENATOR PARNELL asked whether a minor is likely to call a referral
service or doctor in Anchorage. DR. NAKAMURA said it would depend
on what kind of support system she has. If the minor can get to a
place like Nome or Bethel, she can access the medical community,
get counselled on the options and be encouraged to involve her
parents. If, at that point, it is obvious the minor wants to get
an abortion without parental consent, she would go to a larger
community alone or with the help of an adult.
SENATOR PARNELL asked if anyone without an economic interest
provides advice. DR. NAKAMURA guessed very few of the people
involved have an economic interest. He did note a wide variety of
choice and competition is not available in small communities,
however he did not believe economics are the incentive for the
profession.
SENATOR PARNELL asked what percentage of abortions are performed by
providers with that specialty. DR. NAKAMURA guessed there are less
than five physicians performing abortions in the state.
SENATOR PARNELL feared counseling might not be as compassionate as
Dr. Nakamura portrayed if so few physicians perform abortions,
because those physicians do have an economic interest. DR.
NAKAMURA was confident minors have access to the medical system way
before an abortion is performed.
Number 333
SENATOR ELLIS asked Dr. Nakamura to speak to the longstanding
reasons for the lack of parental consent for treatment of venereal
diseases and pregnancy. DR. NAKAMURA said society has identified
certain conditions as less socially acceptable, and most people
would want to keep that information confidential. Allowing minors
to seek services for those conditions prevents them from waiting
until treatment becomes more complicated.
CHAIRMAN TAYLOR asked what an abortion costs in Alaska. DR.
NAKAMURA was unaware and offered to find out.
SHERRY LEE ZACHARY testified, via teleconference from Petersburg,
in support of parental rights in guiding the health care of their
children and medical procedures performed on them. Alaska's laws
must be designed to strengthen the family unit and enable families
to work through problems and crises together. Allowing people
outside of the family to step between the parents and child when a
child is faced with a situation as serious as pregnancy, teaches
the child to keep secrets from the family, and can result in the
death of a viable baby. Children need to be taught to take
responsibility for their actions. Minors do not have the maturity
to make such decisions on their own. She has spoken to many women
who would not have had an abortion if they had received full
counseling at the time. She asked if SB 24 would allow a minor to
go to Court to get consent to have a child when a parent or
guardian wants the minor to have an abortion.
Number 408
CHAIRMAN TAYLOR did not believe SB 24 allows the minor to request
a court order preventing her parents from insisting she have an
abortion, however he believed that opportunity is already
available. DR. NAKAMURA commented of those minors who were
required to get parental consent, 18 percent received abortions and
he suspected a significant number of those were coerced by their
parents. CHAIRMAN TAYLOR felt it is necessary to make sure the
judicial door swings both ways.
ANGELA SALERNO , Executive Director of the Alaska Chapter of the
National Association of Social Workers (NASW), gave the following
testimony in opposition to SB 24. SB 24 is an additional skirmish
everyone must go through until some common ground is found.
Parental consent is part of a larger strategy to illegalize
abortion in this country, and by restricting access to abortion, we
are targeting those most vulnerable: minors. There is a great deal
of ambiguity in this country about what minors' rights are. One of
the findings of SB 24 is to protect the health of minor children,
yet SB 24 increases health risks. According to the Institute of
Social and Economic Research at the University of Alaska
statistics, 52 percent of women on AFDC today had their first child
as a minor. Because we live in a pluralistic society, we have to
respect and tolerate different moral systems and ideologies. She
referred to a fact sheet she supplied to committee members: 97
percent of women who obtain abortions before 13 weeks of pregnancy
report no complications. Following enactment of Minnesota's
parental notification laws, second trimester abortions among minors
increased 18 percent, and the birth rate for 15 to 17 year olds
rose 38 percent.
CHAIRMAN TAYLOR asked if, in Minnesota, 38 percent more teenagers
carried their children to term after the parental consent law was
enacted, 38 percent more abortions had occurred before parental
consent was required. MS. SALERNO thought that was probably true.
MS. SALERNO continued. There are more than 1 million teenage
pregnancies per year in the United States; 80 percent are
unattended and 40 percent of those teenagers choose abortion.
Regarding post-abortion trauma, neither the American Psychological
Association nor the American Psychiatric Association, recognizes
its existence.
CHAIRMAN TAYLOR noted the same association decided in 1967, through
a vote of association members, homosexuality was no longer an
objective symptom of a major neuroses.
MS. SALERNO commented she has cited five studies that show, through
research, the most prominent response of most women who have had a
first trimester abortion is relief. The American Journal of
Psychiatry cites a study in which 98 percent of women who had
abortions had no regrets and would make the same choice again. In
1967, Surgeon General Koop was asked by President Reagan to develop
a study to determine the long term effects of abortion. He
concluded he was unable to do so because there was no evidence that
abortion caused traumatic effects. Ms. Salerno agreed research
shows there are women who experience problems after abortion, but
those women had emotional problems before the abortion.
Approximately 21 percent of women in the United States have had an
abortion; if severe emotional reaction were common, there would be
an epidemic of women with this trauma. Professionals in the
counseling business see the decision to become a parent or have an
abortion as monumental. NASW does support strong families and
parents who have a profound interest in their children's decisions.
When a parent's reaction to a minor's pregnancy might be extremely
abusive, the minor's right to privacy is paramount. The courts who
have dealt with teenagers who want to keep their pregnancies secret
have found the teenagers have very good reasons for doing so.
Number 549
POLLY UTTER testified on behalf of the Abortion Rights Project and
read the following statement by Robin Smith.
Dealing with an unwanted pregnancy is extremely difficult.
Unfortunately in the United States today if a woman becomes
pregnant there is only one acceptable choice: have the child
and become a good mother. An abortion is considered heinous
and society does not really accept giving up a child as a
wonderful, loving act. We prosecute parents who abandon a
child at someone's door. What position do we really put women
in who have an unwanted pregnancy. If a woman feels cornered
and threatened her actions can become extreme. Examples are
numerous: the young couple who recently may have killed their
newborn; and one of our legislators unwanted grandchild who
died of starvation in 1990. Abortion was not chosen and the
results were deadly. In both cases I'm sure the couple's
parents wanted to help their older children through their
desperation. It did not happen. The communication process
was not there. You cannot legislate family interaction. I
understand your good intentions. I pray for good family
communications. I prefer birth control or abstinence to
abortion, but when abortion is not readily accessible,
dangerous, back-alley procedures befall, and worse. The way
to reduce abortion is to reduce unwanted pregnancies. I
implore you to spend your time and effort in this direction.
All research shows that the vast majority of Americans support
more money on family planning. Community involvement in a
parent-child relation program is another possibility, or
required high school community service programs. We are
wasting time, energy, money and losing goodwill in this
ongoing debate over abortion. Please use your religious
convictions for the common good and address prevention of
unwanted pregnancies, not the consequences. After all, women,
young and old, are capable of making their own decisions.
Thank you.
TAPE 97-7, SIDE B
Number 595
RICH DUNCAN , Emergency Medical Technician, testified from Juneau in
support of SB 24. SB 24 speaks to children, not women who are
adults. He questioned whether minors who cross state borders to
seek out an abortion take medical records with them to notify
physicians of medical conditions or allergies. EMTs always ask
for that information prior to starting treatment on a patient.
About 80 percent of the minors he has dealt with are uninformed
about their medical history and often forget the names of
medications they are taking. He cautioned Ms. Salerno's statement
that 98 percent of women who have reported having an abortion would
do it again only applies to those women who disclosed the
information. He believes those who vote against SB 24 will be
using pregnancy as a gauge for maturity, and a gauge for wisdom and
responsibility. If those three things were in place, a minor would
not be facing an unwanted pregnancy. As a parent he asked
committee members to not take away the time and investment he has
put into his children by not allowing him to be involved in
important decisions about them.
There being no further testimony, CHAIRMAN TAYLOR announced SJR 3
would not be taken up by the committee today, at the sponsor's
request, and both SJR 3 and SJR 10 would be heard at the next
Senate Judiciary Committee meeting and SB 24 will be heard again on
February 19. He adjourned the meeting at 4:04 p.m.
| Document Name | Date/Time | Subjects |
|---|