HOUSE BILL NO. 364 An Act relating to notice and consent for a minor's abortion; relating to penalties for performing an abortion; relating to a judicial bypass procedure for an abortion; relating to coercion of a minor to have an abortion; relating to reporting of abortions performed on minors; amending Rule 24(a), Alaska Rules of Civil Procedure, amending Rule 220, Alaska Rules of Appellate Procedure, and Rule 20, Alaska Probate Rules, relating to judicial bypass for an abortion; and providing for an effective date. 2:47:56 PM Co-Chair Meyer reviewed the history of HB 364 in the Finance Committee. Co-Chair Meyer MOVED to ADOPT Amendment #1 (Copy on File): Page 6, line 7: After "without", Insert "Notice to or" Representative Hawker OBJECTED for discussion. SUZANNE ARMSTRONG, STAFF, REPRESENTATIVE CO-CHAIR MEYER, explained the Amendment as a technical clean-up amendment that inserts language to make the version of the bill consistent with other draftings. Representative Hawker WITHDREW his OBJECTION. Vice-Chair Stoltze OBJECTED for discussion. REPRESENTATIVE JOHN COGHILL, Sponsor, testified that he had no objection to the Amendment. Vice-Chair Stoltze removed his OBJECTION. There being NO further OBJECTION, Amendment #1 was adopted. Representative Gara MOVED to ADOPT Amendment #2 (25- LS1406\E.1, Mischel, 3/12/08, Copy on File): Page 2, line 29: Delete "medical instability caused by a" Vice-Chair Stoltze OBJECTED. 2:50:08 PM Representative Gara turned to page 2, line 29 of the bill. He explained that the previous consent law stipulates that a person does not have to wait and get parental notice and consent if the delay in the abortion will cause the minor "substantial and irreversible impairment of a major bodily function." He thought the rule seemed reasonable. However, HB 364 adds another condition that the abortion can only be performed if the delay will cause "medical instability" caused by an irreversible impairment. Representative Gara objected to the additional language and wanted it removed through the Amendment. Representative Coghill objected to the Amendment. He pointed out that the language "medical instability" is commonly used in medical emergencies. He defines abortion as a medical emergency. The medical emergency is being determined by the doctor. He thought "medical stability" should be a factor. Representative Gara answered that not allowing an abortion could cause lasting and substantial injury to a woman. He thought the current standard was good enough. An abortion should be allowed if prevention of the abortion would cause a woman substantial and irreversible injury. The question becomes whether the additional language addresses this kind of injury. Representative Coghill answered that the fact that a delay could cause a medical instability is appropriate especially when we rely on the good faith clinical judgment of the doctor. Representative Gara did not like adopting medical terms without knowing what they mean. He wanted medical testimony to show which injuries the bill allows to be caused to a woman and which injuries are not. 2:54:11 PM Representative Coghill said the same amendment had come before another committee. There was legal testimony but none from a doctor. He clarified that the sponsors intend to define, for the purposes of this particular law, what a medical emergency is. He had not intended to line up medical testimony, although he could. Co-Chair Meyer did not think additional testimony was necessary. Vice-Chair Stoltze MAINTAINED his OBJECTION. A roll call vote was taken on the motion. IN FAVOR: Gara, Joule, Nelson OPPOSED: Harris, Hawker, Kelly, Stoltze, Thomas, Meyer Absent from the vote: Crawford, Chenault The MOTION FAILED (3/6). 2:56:23 PM Representative Gara MOVED to ADOPT Amendment #3 (25- LS1406\E.2, Mischel, 3/12/08, Copy on File): Page 3, line 6: Delete "not less than 48 hours" Vice-Chair Stoltze OBJECTED. Representative Gara turned to page 3, line 6 of the bill. The way the bill is written, if a young woman gives the parents notice and gets parental consent to have an abortion, she still cannot have an abortion without a 48- hour wait. He thought it was not appropriate to have to wait 48 hours. There is no other major medical procedure where a mandatory wait applies. He referred to earlier testimony that it sometimes takes up to ten weeks for a young woman to find out she is pregnant. By then the first trimester is nearly over, and there is no place to get a second-trimester abortion in Alaska. He described a scenario of a young woman trying to make the decisions who has to go to the court, the doctor's office and so on. Even after all that, she has to wait another 48 hours. This tells women who have the legal right to have an abortion that they are not allowed to have one because of a deadline. He asserted that the bill would be deemed unconstitutional and that it was not right. Representative Coghill spoke against the Amendment. He thought two days' notification to the minor's custodian was reasonable. He wanted to have notice in case a person was trying to manipulate the system. If the words were taken out, the bill would say "notice before the abortion," which could be minutes. For other medical procedures there would be a variety of different times either for preparation or for time to get to or from the appointment. He described surgeries that he had to wait 72 hours for. Representative Gara maintained that there is no similar law for men. House Bill 364 will tell a woman that, unlike a man, after a certain day, she cannot have the surgery. Men have the luxury of waiting a few extra days that women who are seeking an abortion do not have. In addition, the bill requires consent. If she has the consent of the parent, she should not have to wait another 48 hours. Representative Coghill did not know of any other place in society that jurisprudence has been so highly focused as abortion and parental consent. With regards to other procedures, few have been litigated to the same degree. Some value individual freedom highly, and others value the unborn child highly. Those two values are in tension. He believed there should be reasonable notification. He thought doctors would require at least two days of preparatory work anyway. 3:02:38 PM Representative Kelly asked if Representative Coghill had started with a higher number of hours for notification. Representative Coghill relied that he had started with 72 hours; after visiting abortion clinics he became convinced that two days was adequate. Representative Kelly spoke to the risk of terminating a human being and thought a 48 hours wait was reasonable. He would like the waiting period to be longer. Representative Gara queried if there were any procedure where a man is required to wait 48 hours after giving consent. Representative Coghill replied not by law. 3:04:22 PM Representative Gara asserted that he had an equal protection issue with the bill if men are not required to wait 48 hours before having any kind of surgery. Representative Coghill did not know of any male who had gotten an abortion. He felt men had been excluded from the choice of abortion. The equal protection issue for him is with the father of the unborn child. Representative Gara thought the 48-hour issue would divide people into people who were against abortion and people who were for the choice to have an abortion. The 48-hour notice is not medically justified. It divides people. He argued that the real purpose of the 48-hour waiting period was to decrease the chances of a woman having a valid, legal, first-trimester abortion. There is no other area of the law where this happens. That makes this bill not really about parental consent, but parental consent plus taking another shot at trying to prevent someone from getting an abortion. 3:07:08 PM Representative Coghill replied that the provision was not meant to be prohibitive, but to respect the parental right to be involved in the decision. He stated that men are parents as well as women. Representative Kelly speculated that a having vasectomy requires a cooling off period. During that period a person might get counseling in order to carefully think things through. He felt since the decision to have an abortion involved human life, the waiting period should be much longer. He referred to testimony that abortion providers make sure there is counseling so the person has to face what an abortion is. Vice-Chair Stoltze MAINTAINED his OBJECTION. A roll call vote was taken on the motion. IN FAVOR: Gara, Joule, Nelson OPPOSED: Hawker, Kelly, Stoltz, Thomas, Harris Absent for the vote: Chenault, Crawford The MOTION FAILED (3/6). Representative Gara MOVED to ADOPT Amendment #4 (25- LS1406\E.3, Mischel, 3/13/08, Copy on File): Page 3, line 15, following "victim": Insert "or has a reasonable fear of becoming a victim"; Page 3, line 18, following "by": Insert "the minor."; Page 3, lines 19-28: Delete all material. Vice-Chair Stoltze OBJECTED. 3:10:09 PM Representative Gara described the Amendment as an attempt to address one of his major objections to the bill. He thought it was one thing telling a minor with supportive parents that she needs to talk to them before having an abortion. It was another thing to tell a minor who has been sexually or physically abused that she has to tell the parent that she is pregnant and get permission to have an abortion. The Amendment says that if a minor has reasonable fear of physical or sexual abuse, or if they have been physically or sexually abused in the past by a parent, they simply do not have to get parental consent. The way the bill reads currently, the child has to get an affidavit where the child says she will be abused, and then she has to get a witness. Representative Gara was concerned that the witness would go to the parent and inform the parent that the daughter is about to get an abortion. If the girl goes to a family member, the family member may inform the parent. If she turns to a law enforcement officer, that officer might go to the parent. Representative Gara explained that his provision makes it sufficient for the child to sign an affidavit, under penalties of perjury, and give it to the doctor. A parent who has abused a child has lost the right to regulate that child's life. Representative Coghill agreed that when a young girl is abused, she is afraid; pregnancy intensifies that fear. He explained the section as the third condition under which a doctor may perform an abortion for a minor. The others are parental consent and emancipation. If the child is abused, she is not required to go to court. The doctor can make the decision, but Representative Coghill did not want the doctor to be able to do that. He thought it would be wise to have an authority figure involved. He acknowledged that the abusive parent could find out because of that. He would rather have law enforcement, health and social services, or a safe family member involved. He does not want to delete the material and leave the decision between the doctor and the minor child because of doctors who could fall prey to the motive of making money off the abortion. 3:16:26 PM Representative Gara did not think there were doctors making a profit providing abortions. He clarified that under the Amendment, the decision is not only between the young woman and her doctor. The young woman is also required to sign an affidavit or she could go to jail for lying. He thought that was sufficient protection. Vice-Chair Stoltze MAINTAINED his OBJECTION. A roll call vote was taken on the motion. IN FAVOR: Joule, Nelson, Gara OPPOSED: Hawker, Kelly, Stoltze, Thomas, Harris, Meyer Absent from the Vote: Crawford, Chenault The MOTION FAILED (3/6). 3:18:46 PM Representative Gara MOVED to ADOPT Amendment #5 (25- LS1406\E.4, Mischel 3/12/08, Copy on File): Page 7, line 25, following "abortion": Insert "or to bear a child"; Page 7, line 28, following "abortion": Insert "or to bear a child" Vice-Chair Stoltze OBJECTED. Representative Gara turned to page 7, line 24 which he felt creates a new crime: coercing a minor who is pregnant to have an abortion. He thought it should be a crime to coerce, defined in the bill as "to restrain or dominate a minor by force," a minor to have an abortion, but it should also be a crime to restrain or dominate a minor by force to make them bear a child. He thought coercing a child would be wrong regardless of the stance towards abortion. Representative Coghill turned to section 1 of the bill, subsection (a), which lists the exceptions to "an abortion may not be performed in this state." He pointed out that the topic at hand is whether parents should be involved in the consent for an abortion. The topic is abortion. He spoke against the Amendment, not because he thinks a child should be coerced to have a child, but because it would create a precedence in law that concerns him. 3:21:56 PM Representative Gara thought the bill as written would cause legal problems. He thought it made it all right to threaten a child if she doesn't agree to have a baby. The bill treats people different depending on what side of the pro-life/pro- choice issue they are on. Representative Gara WITHDREW Amendment #5. Co-Chair Meyer referred to fiscal notes. AT EASE: 3:24:24 PM RECONVENE: 3:26:10 PM Vice-Chair Stoltze MOVED to REPORT HB 364 out of Committee with individual recommendations and attached zero fiscal note #1 by the Department of Health and Social Services, new zero fiscal note by the Department of Administration, new indeterminate fiscal note by the Department of Law, and new zero fiscal note by the Alaska Court System. Representative Gara OBJECTED for discussion. 3:26:57 PM Representative Gara referred to a memo from the Department of Law concluding that HB 364 is likely unconstitutional. The bill is probably more restrictive than the one that was already deemed unconstitutional. He thought the zero fiscal note from the Department of Law curious, since the last litigation cost over $1 million. He thought the fiscal note should reflect the cost of a probable fight over the constitutionality of the bill. He pointed out that there should also be a fiscal note from the Public Defender or Office of Public Advocacy, since they would have to represent women connected with the judicial by-pass proceeding. The Department of Law should have another fiscal note over the costs of defending the other side of the by- pass issue. Representative Gara WITHDREW his OBJECTION. Representative Kelly OBJECTED for discussion. Representative Kelly referred to the memo from the Department of Law. He interpreted the memo as stating that notification would likely survive, and the outcome regarding the constitutionality of required consent would be dubious. The memo goes on to state that the recent change in the composition of the court could have a bearing on the issues (Copy on File). 3:29:27 PM Representative Kelly REMOVED his OBJECTION. Representative Gara OBJECTED. Representative Gara reiterated that whatever the result of litigation, it would cost a lot of money. He maintained the Committee should have true fiscal notes from departments and that the current fiscal notes were not true. Representative Gara REMOVED his OBJECTION. CS HB 364 (FIN) was REPORTED out of Committee with individual recommendations and attached zero fiscal note #1 by the Department of Health and Social Services, new zero fiscal note by the Department of Administration, new indeterminate fiscal note by the Department of Law, and new zero fiscal note by the Alaska Court System.