Legislature(1997 - 1998)
04/07/1997 01:30 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 7, 1997
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Mike Miller
Senator Sean Parnell
MEMBERS ABSENT
Senator Drue Pearce, Vice-chair
Senator Johnny Ellis
COMMITTEE CALENDAR
HOUSE BILL NO. 65 am
"An Act relating to partial-birth abortions."
PASSED HB 65am OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS
PREVIOUS SENATE COMMITTEE ACTION
HB 65 - See Senate State Affairs minutes dated 4/1/97.
WITNESS REGISTER
Cecilia Kleinkauf
2220 North Star St. #2
Anchorage, AK 99503
POSITION STATEMENT: Opposed to HB 65
Ernie Line
2645 Whispering Woods Dr.
Wasilla, AK 99654
POSITION STATEMENT: No position stated on HB 65.
Gerry Knasiak
119 Austin #611
Ketchikan, AK 99901
POSITION STATEMENT: Opposed to HB 65.
Lisa Krebs
801 Lincoln St.
Sitka, AK 99835
POSITION STATEMENT: Opposed to HB 65.
Karen Burger
P.O. Box 1194
Soldotna, AK 99669
POSITION STATEMENT: Supports HB 65.
Lisa Penalver
P.O. Box 74264
Fairbanks, AK 99707
POSITION STATEMENT: Opposed to HB 65.
Theda Pittman
Alaskans for Pro Choice
4720 Eagle #1
Anchorage, AK 99503
POSITION STATEMENT: Opposed to HB 65.
Alice Johnstone
213 Shotgun Alley
Sitka, AK 99835
POSITION STATEMENT: Opposed to HB 65.
Jean Gerstner
P.O. Box 1245
Soldotna, AK 99669
POSITION STATEMENT: Supports HB 65.
Virginia Phillips
404 Lake St., Apt. 2D
Sitka, AK 99835
POSITION STATEMENT: Supports HB 65.
Kathleen Hoffman
HC 1 Box 131E
Soldotna, AK 99669
POSITION STATEMENT: Opposed to HB 65.
Cindy Irmen
P.O. Box 4191
Soldotna, AK 99669
POSITION STATEMENT: Supports HB 65.
James Jenckes
616 Maple Dr.
Kenai, AK 99661
POSITION STATEMENT: Supports HB 65.
Joanne Jenckes
616 Maple Dr.
Kenai, AK 99661
POSITION STATEMENT: Supports HB 65.
Dr. Peter Nakamura
Director, Division of Public Health
Department of Health & Social Services
P.O. Box 110610
Juneau, AK 99811-0610
POSITION STATEMENT: Opposed to HB 65.
Pat Stringer
P.O. Box 34657
Juneau, AK 99803
POSITION STATEMENT: Supports HB 65.
Tom Gordy
P.O. Box 34832
Juneau, AK 99803
POSITION STATEMENT: Supports HB 65.
Sid Heidersdorf
P.O. Box 658
Juneau, Alaska 99801
POSITION STATEMENT: Supports HB 65.
Carla Timpone
Alaska Womens' Lobby
211 Fourth St. #108
Juneau, AK 99801
POSITION STATEMENT: Opposed to HB 65.
ACTION NARRATIVE
TAPE 97-26, SIDE A
Number 000
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:30 p.m. Present were Senators Miller, Parnell, and
Chair Taylor. HB 65 was before the committee. Chair Taylor
announced he would take testimony from teleconference sites in a
rotating fashion.
HB 65 PARTIAL-BIRTH ABORTIONS
CECELIA KLEINKAUF testified from Anchorage in opposition to HB 65
because the decision regarding a partial-birth abortion is one best
left between a woman and her physician. She read a brief summary
of testimony before Congress on this matter by a woman who
underwent a partial birth abortion after discovering the fetus had
severe abnormalities and would not survive delivery. The pregnancy
was terminated using a different procedure. HB 65 takes the choice
away from women and doctors when they have to make a decision in
extremely devastating circumstances. She urged the committee to
vote against HB 65.
Number 086
ERNIE LINE , testifying from Mat-Su, stated no position on HB 65.
During the last teleconference on HB 65, he suggested HB 65, if
passed, should provide for the relief of women forced to deal with
anomalies, such as a building in which care would be provided by
the State or money sufficient for the parent/s to provide the
necessary care for these children who would be forced to live in
the most atrocious of circumstances.
GERRY KNASIAK testified from Ketchikan on behalf of the Pro-Choice
Coalition, and herself, in opposition to HB 65. She discussed
testimony in June of 1995 before the Congressional House Judiciary
Committee by a woman who underwent a partial-birth abortion. At 36
weeks during the woman's pregnancy an ultrasound determined severe
fetal abnormalities that would prevent the fetus from surviving
outside of the womb. After multiple conferences with specialists,
genetic counselors, and family members, the couple decided to
terminate the pregnancy. The emotional turmoil of continuing the
pregnancy, knowing the fetus was having seizures, was too
difficult. The congenital abnormalities were lethal to the fetus,
and could have been to the mother. A compassionate specialist
explained the procedure and the family felt confident they made the
right decision. She believes this decision should be left within
the intimacy of the family unit as they are the ones that have to
live with the decision.
Number 177
LISA KREPS testified from Sitka in opposition to HB 65 and read the
following letter she sent to committee members about her experience
with a partial birth abortion.
"Please take the time to consider my case and others like it when
you vote on Bill No. 65.
At age 26, I was married teaching high school, and looking forward
to the birth of my first child. I was twenty-seven weeks pregnant
when I went to have a routine ultra-sound, the one that often can
tell the gender of the child. My husband and I went to that
appointment filled with excitement and anticipation. Instead of
the sex of our child, we were told that the baby had a rare
syndrome called "prune belly syndrome" which meant that it had no
anus or urethra. The baby could take in amniotic fluid, but none
could then get out. As a result, the baby's bladder was filling up
like a water balloon. Alreday it had expanded into most of the
stomach cavity, the heart was still beating, but there would be no
place for the lungs to develop. We were told by our doctor, a
second OB/GYN, and a specialist, that although the baby could
continue to live through the ninth month, once it was born, it
would die immediately because of the undeveloped lungs.
We were given two options: carry the baby another thirteen weeks,
deliver it, and it would die. Or, I could have labor induced,
deliver the baby, and it would die. Due to much pressure from many
"anti-choice" friends and relatives, and my own reluctance to make
a decision, I carried the baby for another three weeks, knowing
that it was dying inside of me. As the kicking became stronger, I
began to worry that the stretching of this tiny baby's stomach area
was causing it pain. The stress of the whole situation was also
beginning to take its toll on me. Nobody could assure me that the
baby was not feeling pain. They simply couldn't say. I could no
longer eat or go to work.
At the end of my thirtieth week, I was induced at a hospital and
delivered a baby girl. She did not survive the delivery. Her
abdomen was swollen to at least twice the size of her head. She
had my husband's cleft chin.
Please amend Bill No. 65 to make allowances for cases where the
mother's health is endangered, the baby is severly malformed, or
the baby has no chance of surviving. Please allow women to make
these very difficult decisions. No woman wants to have a third
trimester abortion. There are times when it is the best decision
in a very sad situation. Thank you for your consideration. Please
feel free to contact me if you have any comment or questions."
Ms. Kreb asked the committee to also consider the case of a close
friend who learned from an ultrasound at her seventh month of
pregnancy that the baby had one-fourth of a brain. Ms. Kreb does
not believe a woman should be forced to abort a malformed baby, but
she does not believe a woman should be denied that choice. No one
plans to have a severely malformed child.
Number 211
KAREN BURGER testified from Kenai in support of HB 65. She opposes
any type of abortion and believes anyone who makes this decision
will have God to answer to.
LISA PENALVER , President of the Fairbanks Coalition for Choice,
testified in opposition to HB 65. She read the following story of
a family faced with the decision to undergo a partial birth
abortion.
`Mary Dorothy Lyons is a registered Republican and a practicing
Catholic and in April of 1996 she found out she was pregnant with
her first child and was very happy. Nineteen weeks into her
pregnancy the ultrasound indicated that there was a problem that
the head was much too big, but the physician recommended that they
wait a few weeks and have another ultrasound. The problem was
called hydrocephalus [ph] where the baby's head was filled with
fluid and the brain could not develop. "As practicing Catholics,
when we have problems and worries, we turn to prayer. We believe
that God would not give us a problem if we couldn't handle it.
This is our baby, everything would be fine. We never thought about
abortion. A few weeks later they did a couple more ultrasounds and
the problem was still there. We asked about in-utero operations
and removing the fluid but were again told that there was nothing
we could do. We were devastated. I can't express the pain we
still felt. This was our precious little baby and he was being
taken from us before we even had him. My doctors, some of the best
in the country, recommended the intact dilation and evacuation
procedure (IDX). No scissors were used, and no one sucked out our
baby's brains as being depicted in the inflammatory ads supporting
this legislation. A simple needle was used to remove the fluid,
the same fluid that killed our son, to allow his head to pass
through the birth canal undamaged. Our baby never developed a
brain. His head was filled with fluid and he had no stomach. This
was not our choice, this was God's will. My doctors knew that we
would want to have children in the future, even though it was the
furthest thing from my mind at the time. They recommended the best
procedure for me and my baby. Because the trauma to my body was
minimized by this procedure, I was able to become pregnant again.
We are expecting another baby in September. I pray everyday that
this will never happen to anyone again, but it will, and those of
us unfortunate enough to have to live with this nightmare need a
procedure that will give us hope for the future. Our elected
officials need to hear the truth. The truth does make a difference
when people listen. Most people do not understand the real issues.
It is women's health, not abortion, and certainly not choice. We
must leave decisions about the type of medical procedure to employ
with the experts in the medical community and with the families
they affect. It is not the place of government."'
Ms. Penalver concluded that opponents of abortion have claimed that
women have later procedures for "convenience" but there is nothing
convenient about the physically grueling experience of the invasive
medical procedures involved in late abortions. There is nothing
convenient about making the tough decision to have a late abortion
when a child is wanted, or travelling across the country to find
one of a handful of providers, or paying the substantial cost of
care. There is only the hardest decision a woman will likely ever
make arising from her own best judgment and her doctor's and the
legal system that respects that they, not the government, are the
most qualified to make that decision.
Number 280
THEDA PITTMAN testified for the Alaska Pro-Choice Alliance in
opposition to HB 65. She disagreed with previous testimony in the
House that the body of court law which covers the subjects of
viability and women's health does not apply to this issue. The
U.S. Supreme Court has differentiated between laws affecting
pregnancy before and after viability of the fetus. HB 65 does not
address viabilty, and presumably applies to the entire term of
pregnancy, and consequently will fail to meet a constitutional
challenge on those grounds. Second, during a floor debate, the
House refused to include an exception for the health of the woman.
Again, people were told it does not matter, however it is very
clear in the case law that if abortion is banned, exceptions for
the life and health of the woman must be provided. In the case of
partial-birth abortion, banning intact D&E procedures would require
physicians to substitute other procedures which may not, in a given
instance, be the best for the particular woman in question. If HB
65 passes, a physician would be in the position of having to offer
to perform the second best procedure, yet the second procedure
could be confused with the first because of the language used and
legal problems could arise.
ALICE JOHNSTONE testified on behalf of Sitkans for Choice, and
herself, in opposition to HB 65. Decisions regarding such
difficult medical procedures and conditions must be made by the
client and the physician using his/her trained medical judgment and
the knowledge of each individual case. HB 65 abridges the rights
and responsibilities of physicians and gives the decision to
medically untrained legislators. She asked committee members to
vote against HB 65.
Number 323
JEANNE GERSHNER testified from Kenai in support of HB 65 because
although our society always looks for a quick fix, murder is not an
option for anybody. Babies cannot speak for themselves, therefore
an adult must stand and speak for them. She said she believes in
miracles and that a child can be touched in the womb of a mother
and be healed. She spoke of a child who was never supposed to be
able to speak or walk, yet the mother proved the medical community
wrong and taught the child to walk, speak and even play the piano.
VIRGINIA PHILLIPS , Republican District 2 Chair and National Right
to Life spokesperson for American Indians and Alaska Natives,
testified in support of HB 65 because a partial birth abortion is
a barbaric surgical procedure which is never the best, or only, way
to perform an abortion on a woman. Women have been victimized
enough. A breach birth, which this procedure is, is so hard on a
woman's body that every effort is made to turn the baby to a normal
birth position and if the baby cannot be turned, a caesarean
section is performed. She asked committee members to support HB
65.
KATHLEEN HOFFMAN testified from Kenai and read the American Creed,
preceded by a short introduction as follows.
"What makes the United States different from most other nations?
Part of the secret of America's success is revealed in the
American's Creed. The year was 1917. The Great War was raging in
Europe and a nationwide contest was sponsored for the writing of a
brief statement of the political philosophy of the United States.
The winner was William Tyler Page of Maryland with his American's
Creed.
I believe in the United States of America as a government of the
people, by the people, for the people whose just powers are derived
from the consent of the governed, a democracy in a republic, a
sovereign nation of many sovereign states, a perfect union, one and
inseparable, established upon those principles of freedom,
equality, justice, and humanity for which American patriots
sacrificed their lives and fortunes. I therefore believe it is my
duty to my country to love it, to support its Constitution, to obey
its laws, to respect its flag, and to defend it against all
enemies."
Ms. Hoffman said she could not help but think how the very
foundations of our nation are being eroded away. She said today
one of our enemies is abortion, including partial birth abortion
and that our country is being destroyed from within. Another enemy
is apathy. Many people get very upset about animal rights yet
seemingly overlook the murder of their own species in and outside
of the womb. Ms. Hoffman stated we should begin to defend our
country against all these enemies by banning partial birth
abortions in Alaska.
Number 385
CINDY IRMIN testified from Kenai in support of HB 65 because our
civilized nation is returning to barbarianism. She believes "it is
a big cop-out that they can't carry the baby." She stated it would
be difficult to carry the pregnancy full term, but questioned why
anyone would kill the baby and have that on one's conscience if the
baby is going to die anyway.
JAMES JENKES testified from Kenai in favor of HB 65 and made the
following comments. When the U.S. Senate considered this type of
bill last year, it was told that this procedure was rarely used and
that only a few hundred were performed to save the mother's
reproductive capability. It has since been discovered that a
spokesman for the abortion industry, who was quoted in the New York
Times, said he lied through his teeth about this and that many of
these procedures have been done. One hospital in New York alone
had done about 1300 last year. If the abortion advocates lied
about this, he questioned whether anything they say can be trusted.
He believes this procedure is being used as a convenient way to end
a pregnancy. In response to testimony about women who chose this
method because of severe abnormalities, he thought those conditions
to be rare and that other procedures can be used.
JOANNE JENKES testified from Kenai in support of HB 65 because she
believes abortion is done more for convenience than for medical
reasons and that this diabolical procedure should not continue.
She said "politicians, as a whole, seem to want to deny that God
has created life and will terminate it when he will. You can deny
God all you want but that doesn't mean that he isn't the life giver
and life taker. Abortion in any form is murder. We, as a society
have, and will, continue to suffer the consequences of this
murder." She concluded by asking committee members to support HB
65.
Number 429
DR. PETER NAKAMURA , Director of the Division of Public Health,
Department of Health and Social Services (DHSS), directed his
comments on HB 65 to the medical procedure itself, and not from any
philosophical or religious perspective because anyone who makes
this choice must do so based on their own sincerity in their
beliefs. Medical procedures are designed specifically for the
purpose of either protecting an individual's health or their life.
Sometimes these procedures are gruesome when described but unless
one believes this procedure was designed to meet a physician's
sadistic needs, one must assume the procedure is used for a medical
reason. In 1995 in Washington State there were three late term
abortions reported as required: two were performed because the
fetus was malformed; the third was for the health of the mother.
It is not a procedure used often, and occurs during the third
trimester, past the period of viability. A number of procedures
are available for pre- and post-viability abortions, but that
decision is made by the physician and patient depending on the
individual situation. He, as a physician, could not make that
decision for another physician or patient. He emphasized that if
HB 65 only addresses a medical procedure, the decision should be
left to the physician and patient.
Number 463
CHAIRMAN TAYLOR asked Dr. Nakamura if he could provide statistics
on the number of children that do not survive birthing.
DR. NAKAMURA stated if Chair Taylor was referring to infants who
survive a full-term pregnancy but do not survive shortly after
delivery, he would have to search for that specific number.
CHAIRMAN TAYLOR said it seems to him, except for ultrasound tests,
in most instances no one would know whether a fetus is malformed.
DR. NAKAMURA said generally not, but sometimes a pregnancy does not
progress appropriately or the uterus expands too rapidly which
would alert a physician to problems. He added that in a former
hearing a legislator described a number of processes; the
descriptions were unfair. One process was described as analagous
to pulling a Christmas tree out of a closet with the implication
that there is only one way it can be removed. That is not true of
a delivery; each condition is specific.
Number 485
CHAIRMAN TAYLOR noted he has read several articles during the last
few months that were provided as follow-up to the debate that
occurred in Congress. Many of the articles were written by
nationally syndicated columnists who are pro-choice, however they
were offended by the quality of testimony given before Congress in
that one of the witnesses admitted to a misrepresentation as
concerned the number of late term abortions that are occurring in
the United States. He asked Dr. Nakamura if, through his research,
he could discount or validate the comments made in those articles.
DR. NAKAMURA replied the best source of information can be obtained
from those states that mandate reporting of abortions: Washington
is one of those states, Alaska is not. He offered to compile the
data from all states that mandate reporting and provide it to the
committee.
CHAIRMAN TAYLOR asked if any information is available from states
that do not mandate reporting. DR. NAKAMURA answered it would not
be available because there is no source of reporting. CHAIRMAN
TAYLOR asked if some of those states that mandate reporting have
restrictions on late term abortions. DR. NAKAMURA said he was sure
they all have some restrictions. CHAIRMAN TAYLOR thought there
would be a reticence in reporting such late term abortions. DR.
NAKAMURA thought there would not be a reticence because reporting
is required by law.
Number 485
CHAIRMAN TAYLOR said in the states with mandatory reporting and
restrictions, the numbers will not be high; however the comments in
the news articles may be accurate if applied to states that do not
mandate reporting and have no restrictions. DR. NAKAMURA agreed to
supply whatever information he could find.
PAT STRINGER directed her testimony toward the argument that late
term procedures are performed when it is known the baby has severe
birth defects and will die shortly after birth and the mother's
well-being and mental health is at issue, and read the following
statement.
"In 1980, she and her husband had such a child. To say the mother
is not at her best emotionally at such a time is an understatement.
At the moment of Sarah's birth, I was very much dependent on the
counsel I received from the physician in attendance. Birth defects
are never easy to deal with for the mother, the father, the
siblings, grandparents or the physician. To have such an option as
partial birth abortion available at such a time is truly cruel to
all parties concerned. Our baby flew to Seattle and lived 25 days
in the neo-natal intensive care unit at Children's Hospital paid
for by private insurance and donations through the March of Dimes.
It was traumatic enough to deal with a sick and dying child. It
would have been an entirely separate matter to deal with the guilt
incurred had I knowingly had any part in my own child's death.
Such thoughts as convenience, or mercy killing, easily come to
mind. Grief is one emotion for a mother to work through, guilt is
quite another. For this reason, I believe the partial birth
abortion of a child who will not live, to protect the mother's
psyche, is a misconception that she will live to regret. Many
physicians, nurses, flight attendants, as well as specialized
equipment and intensive care technology fought to save my child's
life. It was assumed her life was precious and worth saving if at
all possible. I needed then, and I still need, the comfort and
peace of knowing that everything that could be done to save my
child's life was done. The ultimate decision of who lives and who
dies should remain in the hands of the Creator. Thank you."
Number 540
TOM GORDY made the following comments on behalf of the Christian
Coalition of Juneau. Even though he is opposed to abortion,
passage of HB 65 may not stop a single abortion from occurring. HB
65 is not a referendum on abortion; it is a referendum on a
procedure. This procedure has been labelled by Congress as
"partial-birth abortion." The doctor who created it called it DNX,
an acronym for dilation and extraction. The most troublesome aspect
is that the medical community does not recognize the procedure as
a legitimate medical procedure. The Christian Coalition of Juneau
urges the Legislature to pass HB 65 and ban this procedure from
ever becoming a legitimate one in Alaska. He questioned whether
this procedure is ever absolutely necessary to save the life or
preserve the health of the mother. When President Clinton vetoed
the partial birth abortion ban that was passed by Congress, over
300 physicians, mostly obstetricians, united to oppose the partial
birth abortion and declared that it is never medically necessary.
He questioned whether this procedure is recommended because when
this procedure is performed, labor is induced and the child is
placed in the breach position. Breach births often result in
caesarean section surgery because a breach birth is very dangerous
for both the baby and mother. He encouraged the committee to
wholeheartedly support HB 65 and to not weaken it by permitting it
for reasons of health. Former testimony before Congress disclosed
that 80 percent of the procedures performed by the doctor who
established the procedure are on healthy women, and another doctor
testified that 22 percent were performed because of depression.
TAPE 97-26, SIDE B
SID HEIDERSDORF testified on behalf of Alaskans for Life and made
the following remarks. Opposition to HB 65 is an attempt to defend
the indefensible. Although partial birth abortion has been
described as gruesome, that is not the reason Alaskans for Life
oppose it; the reason for its opposition is that it victimizes a
human baby. Regarding the sanctity of the physician-client
relationship, when a pregnant woman visits a physician, there are
two patients. In every profession there are professionals who
operate on the fringes, and it is the state's responsibility to set
parameters on behavior. In retrospect, we know that something
should have been done to stop the doctors during the Nazi regime.
The state will not be hurting medical practice by outlawing partial
birth abortions. He encouraged committee members to support HB
65. Regarding the health provision, the Supreme Court defined
health in a very broad and liberal way and allowed abortion on
demand. The request for a health provision in HB 65 will simply
destroy the bill and it will accomplish nothing because
psychological reasons, age or marital status, etc. will be taken
into account. He questioned how our society has accepted the idea
that only killing a few babies is permissible. Alaskans for Life
is opposed to killing one. It is unfortunate that HB 65 may not
stop abortions from occurring, but it does stop one procedure. The
Nazi regime based its killing programs on the logic that certain
lives were not worth living therefore should be ended. Once that
idea is accepted, a society is on its way to creating a culture of
death.
Number 520
CARLA TIMPONE testified on behalf of the Alaska Womens' Lobby in
strong opposition to HB 65. This bill would set bad precedent and
bad public policy by restricting a woman's right to choose this
procedure by outlawing what the American College of Obstetrics and
Gynecology, and many other medical professionals, consider to be a
legitimate medical procedure that may be the safest and most
appropriate in some cases. This procedure is associated with
severe abnormality incompatible with life after delivery. Many
women from all walks of life have used this procedure to terminate
wanted pregnancies and have shared their stories in the hope that
other women faced with the same difficult and devastating diagnosis
will have the same medical option available to them. The Womens'
Lobby believes this is a very difficult, very personal, decision
that must continue to be made solely by the families involved and
their doctors.
Number 507
CHAIRMAN TAYLOR noted the focus of the March of Dimes used to be
polio; now it is birth defects. He felt society is now placing
birth defects on a very delicate set of scales by accepting the
idea that by using and depending on current diagnostic procedures,
we will make a determination about the extent of birth defects and
then after notifying the parents of those defects, try to justify
termination. Without the use of current technology, people would
not be put in a position to decide. He said he is very troubled
about who makes the determination that the birth defects are
extensive enough to warrant termination. He noted a cleft palate
or clubbed feet are considered defects. He added that national
testimony revealed that this procedure was occurring much more
frequently, and for more reasons, than we were lead to believe, and
for healthy women and babies who failed to exercise other options
at an earlier point.
MS. TIMPONE replied that she believes that women who have undergone
this procedure testified that the baby did not have a birth defect,
but a severe abnormality that prohibited it from living outside of
the womb, not something as simple as a cleft palate or as serious
as loss of a limb. She hoped there are not responsible physicians
in this country that would suggest to a woman whose child was
determined to have a cleft palate that a viable option was to have
a late term abortion. She was not aware of any such cases.
There being no further testimony, SENATOR MILLER moved HB 65 am out
of committee with individual recommendations. There being no
objection, the motion carried.
CHAIRMAN TAYLOR adjourned the meeting at 2:54 p.m.
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