Legislature(2003 - 2004)
05/03/2003 09:12 AM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 3, 2003
9:12 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
MEMBERS ABSENT
Senator Johnny Ellis
Senator Hollis French
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 212(JUD)
"An Act relating to trusts, including trust protectors, trustee
advisors, transfers of property in trust, and transfers of trust
interests, and to creditors' claims against property subject to
a power of appointment."
MOVED CSHB 212(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 1(JUD)
"An Act relating to stalking and to violating a protective
order; and amending Rules 4 and 65, Alaska Rules of Civil
Procedure, and Rule 9, Alaska Rules of Administration."
HEARD AND HELD
SENATE BILL NO. 30
"An Act relating to information and services available to
pregnant women and other persons; and ensuring informed consent
before an abortion may be performed, except in cases of medical
emergency."
MOVED CSSB 30(JUD) OUT OF COMMITTEE
SENATE BILL NO. 175
"An Act relating to civil liability for commercial recreational
activities and for guest passengers on an aircraft or
watercraft; and providing for an effective date."
SCHEDULED BUT NOT HEARD
SENATE BILL NO. 176
"An Act relating to civil liability for injuries or death
resulting from livestock activities."
SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 114
"An Act relating to the issuance of a search warrant."
SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
HB 212 - No previous action recorded.
HB 1 - See State Affairs minutes dated 4/24/03.
SB 30 - See HESS minutes dated 3/17/03, 3/26/03, 4/3/03, 4/9/03
and 4/14/03 and Judiciary minutes dated 5/2/03.
WITNESS REGISTER
Ms. Vanessa Tondini
Staff to Representative Lesil McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HB 212.
Mr. Bruce Roberts, DA
Municipality of Anchorage
POSITION STATEMENT: Commented on HB 1.
Representative Cheryl Heinze
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 1.
Ms. Mary Wells
c/o Representative Heinze
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Supported HB 1.
Ms. Karen Vosburgh, Executive Director
Alaska Right to Life
PO Box 1847 Palmer AK
POSITION STATEMENT: Supported SB 30.
Ms. Mary Ross, Nurse Midwife
Nurse's Association & Nurse Practitioner's Association
342 5th Ave.
Anchorage AK 99501
POSITION STATEMENT: Opposed SB 30.
Ms. Cassandra Johnson-Blackbird
PO Box 238676
Anchorage AK 99501
POSITION STATEMENT: Opposed SB 30.
Ms. Theda Pittman
PO Box 241513
Anchorage AK 99524
POSITION STATEMENT: Opposed SB 30.
Dr. Bob Johnson
PO Box 945
Kodiak AK 99615
POSITION STATEMENT: Supported SB 30.
Ms. Jennifer Rudinger, Executive Director
Alaska Civil Liberties Union (ACLU)
POSITION STATEMENT: Opposed SB 30.
Dr. Carolyn Brown
No address provided
POSITION STATEMENT: Opposed SB 30.
Ms. Debbie Joslin
PO Box 377
Delta Junction AK 99737
POSITION STATEMENT: Supported SB 30.
ACTION NARRATIVE
TAPE 03-35, SIDE A
HB 212-POWERS OF APPOINTMENTS/TRUSTS/CREDITORS
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 9:12 a.m. Present were Senators
Ogan and Therriault. The first order of business to come before
the committee was HB 212.
MS. VANESSA TONDINI, Staff to Representative Lesil McGuire, said
that version S is identical to version I of the Senate companion
bill, SB 163.
SENATOR THERRIAULT moved to pass CSHB 212(JUD) from committee
with the attached fiscal note with individual recommendations.
There were no objections and it was so ordered.
HB 1-STALKING & PROTECTIVE ORDERS
CHAIR SEEKINS announced HB 1, version \H, to be up for
consideration.
REPRESENTATIVE CHERYL HEINZE, sponsor of HB 1, said it closes a
dangerous loophole in the Alaska statutes by allowing the
victims of stalking, the security of a judicial protective
order. Any person who believes he is a victim of stalking not
related to domestic violence may file a petition in the district
or Superior Court and receive a stalking protective order. Under
current law, protection to a stalking victim is only associated
with domestic violence cases. This bill also streamlines the
process for public safety and judicial practitioners by
harmonizing the arrest and notification procedures to mirror
those already in place for domestic violence.
SENATOR OGAN asked her to explain why they are using ex parte
orders.
MR. BRUCE ROBERTS, District Attorney, City of Anchorage,
explained that ex parte means that one party can have contact
with a judge. Ordinarily a judge, being a neutral party, should
not speak to one party without the other one present. This would
allow the petitioner not to actually have a hearing behind
closed doors. She fills out a form, presents that to the court
with the facts and is then sworn under oath and provides
testimony or answers questions in support of that affidavit. It
is a public record. One of the reasons to make a restraining
order ex parte is because it couldn't be accomplished if you had
to wait for the respondent or the batterer or whoever. However,
the defendant has an opportunity to respond to the order within
20 days.
CHAIR SEEKINS said that Representative Holm submitted an
amendment that would remove a defendant from the registry if the
protective order is found to be without merit and dissolved by
the court, which protects people from the frivolous or spiteful
order request.
CHAIR SEEKINS asked Representative Heinze if she wanted to work
on that language with Representative Holm.
REPRESENTATIVE HEINZE was surprised she hadn't heard about this
amendment and said she would work on it with him. There are all
kinds of protective laws associated with domestic violence, but
this bill is mainly for someone being stalked who has no idea
who the person is that is stalking them.
SENATOR OGAN asked what are the typical cases of stalking that
the city deals with.
MR. ROBERTS replied that he had been with the District
Attorney's Office for 15 years and that stalking is a
misdemeanor within the municipality and the state has
misdemeanor and felony stalking (violation of a restraining
order). He was a little leery of the amendment because if the
petitioner applies for the order, she has to prove as of now
that she is in need of protection and that an act of domestic
violence has been committed against her. Sometimes
reconciliation takes place or one or both people don't show up
at the hearing. He didn't know if an order could be issued
against someone who was unknown.
CHAIR SEEKINS noted that AS 18.65.540, the Department of Public
Safety shall maintain a central registry of protective orders
issued or filed with the court that must include the names of
the petitioner, the respondent, their dates of birth and the
conditions and duration of the order. The registry shall retain
a record of the protective order after it has expired.
Representative Holm is suggesting the Department of Public
Safety should remove from the registry an ex parte protective
order that is dissolved by the court or expires without being
issued. He thought the idea might have some merit.
MR. ROBERTS said the registry is a public record, but one of the
reasons for it is that it is shared between states. There may be
some federal requirements and the amendment might need review.
SENATOR OGAN said he was concerned about due process.
CHAIR SEEKINS said he agreed with the intent of the bill, but he
wanted to examine that question so that they didn't unduly
burden someone who was not a stalker.
MS. MARY WELLS said she is the reason this bill is before them.
She and her entire family, including her husband, was stalked by
an individual who befriended her children and called them at all
times of the day and night with threats. She felt this bill
would have provided her with a lot of protection and hoped that
it would pass this year.
CHAIR SEEKINS thanked everyone for their comments and said the
bill would be held for further work.
SB 30-ABORTION: INFORMED CONSENT; INFORMATION
CHAIR SEEKINS announced SB 30 to be up for consideration.
MS. KAREN VOSBURGH, Executive Director, Alaska Right To Life,
said people need this information about potential physical and
psychological damage that is incurred by abortion. She read from
a report from the Gerber Institute in Toronto Canada saying that
abortion complications are seriously underreported.
CHAIR SEEKINS asked her to submit her testimony to his office by
fax.
MS. MARY ROSS, Nurse/Midwife, said she opposed SB 30 because it
presented another hurdle to abortion, which is a woman's
constitutional right. The requirement to get extensive
counseling is belittling to an intelligent woman and an
infringement on privacy. In her experience with women, this
decision is never taken lightly. Many times, it's difficult for
a pregnant teen to talk to her parents and she might get an
illegal abortion, which could lead to her getting an infection
or worse. She said this not only places burdens on physicians,
but places limits on the professional scope of practice. The
right to abortion is a matter of privacy and a constitutional
right that was decided by the Supreme Court of the United States
of America. Moral judgment that seems to be in this bill does
not have a role to play in the laws of the land.
TAPE 03-35, SIDE B
CHAIR SEEKINS asked if this was an official position taken by
the Nurse's Association and if she could fax them a copy of the
resolution. She said she would get that to them.
MS. CASSANDRA JOHNSON-BLACKBIRD, Anchorage mother, said she
didn't think her reproductive health history is anybody's
business. She did not think that all negative things in a
woman's life could be linked to abortion. She related her
personal story about her decision process in having an abortion
- after which she felt an "overwhelming sense of relief." She is
married now and has two children; she considers herself happy,
productive and successful.
MS. PAULINE UTTER, Anchorage grandmother, said she has had an
abortion and three children. She stated that 90 percent of all
pregnancies are unintended and 50 percent of all women in the
United States have had abortions. She can't believe we are still
discussing this issue; she also couldn't believe that all those
women are psychologically damaged by the fact that they have had
an abortion. If there is information provided on the Internet,
she requested that it is accurate and doesn't use emotional
phrases like "unborn child," but rather medically correct terms
like fetal development. It should also provide accurate
information about the amount of money women can expect to
receive if she has a child out of wedlock and what will happen
to her earning capabilities.
SENATOR OGAN asked her if it was accurate that 50 percent of all
women in the U.S. have abortions.
MS. UTTER replied that it is accurate.
SENATOR OGAN asked her if she felt that pro-choice people should
make an informed choice. He felt that people making this choice
should have all the information.
MS. HUNTER replied, "Are you suggesting that we aren't
informed?"
SENATOR THERRIAULT remarked that some people suggest that the
information is slanted and he felt that a website run by the
state would have accurate medical information.
MS. HUNTER replied post abortion counseling and services are
biased.
SENATOR DYSON inserted that "foetus" is the Latin word for
unborn child and they are trying to provide for translation of
this information into various languages.
MS. THEDA PITTMAN, Anchorage resident, opposed SB 30, but said
she supports efforts to reduce the number of abortions. She
thought SB 30 was poor public policy, because it does not
adequately document the state's interest in this matter.
It treats pregnancies and abortions as though they
were uniform events from woman to woman from beginning
to end. It would be a better position for the state to
focus on the process of unplanned and unwanted
pregnancies. The worst of these, I believe, are rape
and incest.
MS. PITMAN noted that sometimes contraceptives fail and
sometimes there are reasons they cannot be used at all, like
lack of health insurance or the inability to afford the
contraceptive or poor judgment.
She supported Senator Dyson's comment about adult men having sex
with minor females, but said it disturbs her that these problems
are approached from the perspective of trying to fix the woman.
In reality, in an overwhelming number of cases, it is the woman
who will have to feed, cloth, shelter and care for the child 365
days a year for 18 years or more. And, while she applauded
fathers who shared the costs and the actual work, that isn't the
norm, yet. She preferred that pregnant women were not told to
believe that is the case. She felt that abortions would continue
whether or not this bill passed, but she felt there was no
better place than the Judiciary Committee to say that this is
not the standard or spirit of law.
DR. BOB JOHNSON said he has been a resident of Alaska for 65
years and he performed approximately 70 abortions per year in
the last 10 years of his practice. He is familiar with the
procedure and with the women who request it. He practiced
medicine before abortion was legal and saw many children born
into families where they weren't wanted, couldn't be afforded,
belonged to single mothers who were the offspring of single
mothers, many of whom were on welfare. If those children grew up
satisfactorily, they were often wards of the state. Many of them
did not grow up satisfactorily and were his patients as well. He
had patients plead with him to terminate their pregnancy. Out of
his 700 patients, only two had post abortion depression -
considerably less than those who had post partum depression. He
never had a complication with a mother that required
intervention; there were no maternal deaths and no blood loss
that required transfusions. There were no infections.
DR. JOHNSON said he thought this law was a mistake and that it
intrudes upon the privacy of women. Some women sought counseling
at a crisis center and were made to feel guilty about
considering abortion. He felt that if there was depression
associated with abortion that it came from the right-to-life
people attaching so much guilt to it with their comments.
He also was very concerned about what might occur on an Internet
site. His experience is that many of the complications that are
mentioned are influenced by those who believe this is an evil
concept and feel it is their responsibility to discourage women
from making the choice. They emphasize out of proportion often
what the complications are and their severity, as well as their
frequency. He felt that having a law dictate what a doctor has
to tell his patients is out of line.
SENATOR THERRIAULT pointed out that language in the bill says
that only unbiased objective information should be provided. He
asked if the doctor is required by law to provide basic
information about possible complications and their frequency.
DR. JOHNSON replied that his point is that he doesn't trust the
Legislature to have accurate information and he didn't think it
was a legislator's responsibility to decide what information a
patient should have; it's the woman's decision. Some women don't
want to know what the fetus looks like every two weeks and he
wasn't sure it was necessary that they do. Doctors already have
to be responsible for giving their patients objective
information on which to base their decisions. They are required
to discuss the possible complications of any procedure.
SENATOR THERRIAULT asked if the government dictates what
information needs to be in other health pamphlets.
DR. JOHNSON replied that the Department of Health gives them
information on immunization.
SENATOR THERRIAULT asked how that is any different than what is
being requested here.
DR. JOHNSON replied that it is quite different because one has
to do with a woman's choice about what to do with her life while
the vaccination is elective.
SENATOR THERRIAULT responded that his children couldn't attend
school without vaccinations.
DR. JOHNSON said that is true.
CHAIR SEEKINS pointed out that adult consent is required for a
minor child to get a vaccination, but not to get an abortion.
DR. JOHNSON replied that the reason vaccinations are required is
that the larger community is at risk. In the case of abortion,
it is an individual decision and the larger community is not at
risk on the basis of the woman's decision.
10:25 a.m.
SENATOR DYSON asked if he could infer from his testimony that
there are no human rights considerations that public policy
makers should take into account when dealing with abortion. Roe
v. Wade said that the state has an increasing interest in the
life of a child with its viability.
DR. JOHNSON replied that their consideration of the embryo and
the fetus as being an unborn child capable of behaving as a
human being is inaccurate. "A child is a potential child, but so
is every child that is not conceived because of the use of birth
control.... I feel a fetus is not an individual and does not
have even all its parts together, yet; is not capable of
rational thinking, is not capable of anything other than the
most basic responses to perhaps pain or noise.... It's not an
individual, particularly in the first trimester..."
SENATOR DYSON asked if a woman should be able to decide to have
an abortion based simply on the fact that it's not wanted.
DR. JOHNSON replied, "Of course."
MS. JENNIFER RUDINGER, Executive Director, ACLU, said she
submitted written testimony, but she wanted to notice the
committee that the ACLU has serious concerns about the
constitutionality of SB 30 since it imposes restrictions on a
woman's right to choose, only if she is choosing to terminate a
pregnancy. Those restrictions are not placed on a woman who is
carrying her pregnancy to term. Carrying a pregnancy to term may
be against a doctor's advice or pose a health risk, but they are
not being sent home to think it over for 24 hours before they
consent to getting prenatal health care. She felt that the
spirit of the bill is biased because it is limited to only one
surgical procedure, even though it is statistically safer than
pregnancy and delivery. Women would receive information that may
not be relevant to their particular circumstances and would have
to go home and think it over - the implication being that they
might not really know what they are doing.
She would defer to doctors on this point, but she has been told
that the definition of gestational age on page 3, lines 30 - 31
is medically questionable. Also, on lines 9 - 10 language
discussing a fetus' survival at various gestational ages is
something people in the medical field do not agree upon. She
thought it would be difficult to come up with language for a
website on the issue.
The waiting period in SB 30 is a burden that is being imposed
only on women exercising their right to choose in one particular
manner with which the sponsor of the bill disagrees. It is not
imposed on any one having another surgical procedure. She felt
that abortion is being singled out for particular restrictions.
Planned Parenthood v. Casey established minimal standards of
what the government cannot do in terms of restricting civil
liberties, but it doesn't set the ceiling. States can go even
farther in protecting individual rights from being restricted by
the government. Most states do go farther in many different
contexts.
The Alaska Constitution has a right to privacy and only six or
seven other states have that. The Alaska Supreme Court has found
that the right to privacy protects a woman's fundamental right
to make health care decision concerning her reproductive system.
There is also an equal protection issue here, too, because if
you have two similarly pregnant women, one does not have to be
subject to a waiting period before she can be given informed
consent medical care. The other woman, who chooses to terminate
her pregnancy has to wait 24-hours or more before she gets
medical treatment. The state has to show a compelling
governmental interest in treating them differently.
DR. CAROLYN BROWN said she already faxed her testimony to the
committee. She said SB 30 will in no way provide appropriate
information and services available to pregnant women as outlined
in the bill nor will it provide access to appropriate
information for pregnant women or providers who have no access
to the Internet and no computer services. It is not known who
will elect to have an abortion beforehand and only after the
decision is made, is a woman subject to the required information
and 24-hour waiting period. She viewed this as an attempt by
ultra conservatives to have a state funded program promote their
own reproductive agenda. Further, she said, the fiscal note for
providing the information is incomplete and the requirement for
informed consent is already obtained from within the Bureau of
Vital Statistics. So, that is another waste of state general
fund resources.
SENATOR OGAN asked if she felt that retaining a copy in the
physician's file is incorrect and that it is the patient's file.
DR. BROWN replied that was her belief.
SENATOR OGAN said he would probably introduce an amendment to
correct that language.
MS. DEBBIE JOSLIN used an analogy of her husband having
cataracts and declining to have surgery as an example of another
procedure that required informed consent.
TAPE 03-36, SIDE A
CHAIR SEEKINS closed the public testimony.
SENATOR OGAN motioned to adopt an amendment to delete
"physician's" and insert "patient's" on page 6, line 1. He
explained that a patient's files are kept in a physician's
office. There was no objection and it was so ordered.
SENATOR OGAN motioned to pass CSSB 30(JUD) with the attached
fiscal notes from committee with individual recommendations and
asked for unanimous consent. There was no objection and it was
so ordered.
CHAIR SEEKINS adjourned the meeting at 10:48 p.m.
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