Legislature(1997 - 1998)
02/19/1997 01:54 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
SB 24 PARENTAL CONSENT BEFORE MINOR'S ABORTION
CHAIRMAN TAYLOR announced the committee previously held an
extensive hearing on SB 24 and delayed passage of the bill from
committee until additional information sought by the sponsor and
committee members was received. The committee packets contain the
information requested, as well as numerous letters from members of
the public.
MIKE PAULEY , staff to Senator Leman, sponsor of SB 24, discussed
three changes made to the proposed committee substitute (0-
LS0210\E). On page 2, line 25, language was added to correct a
drafting oversight; on page 7, line 22, a new subsection (n)
mandates the court system to make available judicial bypass forms
and information at all official locations within the State; and the
word "woman" was replaced with "minor" throughout the bill as the
word "woman" could be perceived to mean an adult female. Mr.
Pauley distributed a map that contained the official locations of
superior courts, district courts, and magistrates in the State.
CHAIRMAN TAYLOR noted the term "woman" could still be found in some
areas of the proposed committee substitute. MR. PAULEY explained
that word was retained throughout the bill if it was modified by
qualifiers, such as an unmarried, unemancipated woman under 18
years of age.
SENATOR MILLER moved to adopt CSSB 24(Jud)(0LS0210\E) as the
working document before the committee. There being no objection,
the motion carried.
JUDITH KOEHLER , Senior Legislative Counsel for Americans United for
Life (AUL), testified. AUL has been involved in virtually all
abortion litigation in the U.S. Supreme Court since, and including,
Roe v. Wade in 1972. She has been involved with the 50 states in
passing legislation and in litigation through the court decision
process. She addressed the federal and state constitutionality of
SB 24 and answered specific questions previously raised in House
and Senate committee hearings.
SB 24 is derived from three U.S. Supreme Court cases: in Hodgeson
v. Minnesota, the Court found a two-parent notice law
constitutional in 1990; in Ohio v. Akron, the Court affirmed the
constitutionality of a one-parent notice bill; and in Casey v.
Planned Parenthood in 1992, the Court affirmed a one-parent consent
bill. These bills were affirmed out of the Supreme Court's
recognition of a state's interest in protecting the health and
safety of its minor children, protecting parental involvement in
the upbringing of their minor children, and in fostering family
unity. SB 24 is consistent with all of the provisions of the
Hodgeson, Ohio, and Casey litigation. It includes a judicial
bypass that can be found constitutional under that case law; and it
includes the provisions that require timely, expedited procedures,
and confidentiality for that minor. Because SB 24 is consistent
with those provisions, it can be successfully litigated at the
federal level.
With respect to the Alaska Constitution, Ms. Koehler stated 34
states have either parental consent or notice laws. Only Florida's
state law has been struck on privacy grounds. California's
parental consent law has been upheld over a state privacy ground
challenge; however, that law is still being litigated. Alaska's
Supreme Court has never applied the privacy provision in its
Constitution to a state abortion law and has made no decision that
creates a state constitutional right to abortion. In fact, Alaska
also protects parental rights in its Constitution. Ms. Koehler
believes SB 24 can be successfully litigated in both federal and
state courts.
Ms. Koehler provided statistics from five states on teen abortion,
pregnancy, and delivery rates before and after parental involvement
laws went into effect. Her conclusion, with respect to parental
involvement laws, is that those laws effectively changed teenage
behavior.
In response to testimony by a witness from the Center of
Reproductive Law and Policy who said the medical emergency
exception in SB 24 is "impermissibly narrow under longstanding
federal constitutional precedents," Ms. Koehler stated that is
simply not so. In 1992 the U.S. Supreme Court affirmed, in Planned
Parenthood v. Casey, a parental consent law in the State of
Pennsylvania contained an adequate medical emergency exception.
That same provision is contained in SB 24. The judicial bypass
procedure in SB 24 is consistent with parental involvement laws in
the Minnesota, Ohio and Pennsylvania cases.
With respect to the standard of evidence to be used by a judge in
the judicial bypass procedure contained in SB 24, Ms. Koehler noted
the clear and convincing evidence standard is included in the Ohio
law, which was successfully litigated.
Ms. Koehler addressed the issue raised by the National Association
of Social Workers (NASW) that second trimester abortions among
minors are likely to increase with passage of SB 24. While the
total number of abortions performed on minors decreased after
parental involvement laws were enacted, the number of second
trimester abortions remained constant, so that number became
proportionally larger. The same argument was used in the
Mississippi legislative debate and the statistics did not bear out.
Ms. Koehler disputed claims that physicians do not support parental
involvement laws. An amicus brief was filed on behalf of the
American Association of Physicians and Surgeons in support of the
Minnesota law when it was successfully litigated in 1990. That
organization is the largest association of private practicing
physicians in the U.S., composed of physicians from every state and
territory. They are interested, and understand the importance of,
involving parents in the medical treatment of minors, particularly
in the provision of surgical procedures.
Ms. Koehler concluded by saying SB 24, if passed and signed by the
Governor, can be successfully litigated and will support the
state's interest in preserving a minor's health, parental rights,
and fostering family unity.
Number 327
SENATOR LEMAN , sponsor of SB 24, responded to comments made by
previous witnesses in order to establish a clear record based on
facts.
The first topic is the effect of parental consent laws on
teenage pregnancy. Last week a witness from the Alaska
Women's Lobby claimed that SB 24 will not reduce the rate of
teenage pregnancy, however he offered no evidence to
substantiate his argument. I point out the experience of
other states and Ms. Koehler did comment on this, and this
information was provided quickly but is probably worth
repeating.
When Minnesota's parental notice law was in effect from 1981
to 1986, the pregnancy rate for teens age 17 and under
declined 20 percent. In addition, the pregnancy rate for
teens age 18 and 19 declined by 25.4 percent during the same
time period. However, the pregnancy rates in both categories
substantially increased between 1975 and 1980, the five year
period immediately preceding the enactment of their law.
The source of this data is the Minnesota Department of Health.
this data was analyzed in a 1991 article in the American
Journal of Public Health. The authors concluded (and I
quote):
"These data suggest that parental notification
facilitated pregnancy avoidance in 15-17 year old Minnesota
women. Abortion rates declined unexpectedly while birth rates
continued to decline in accordance with a long-term trend."
The next state is Massachusetts. A study of the parental
consent law in Massachusetts shows that the teen pregnancy
rate declined nearly 17 percent during the first 20 months the
statute was in effect. This study was also published in the
American Journal of Public Health, in 1986. I don't have
photocopies of that article with me, but we are trying to
track down one of good enough quality to make available to the
committee.
The third state's experience is Nebraska. To my knowledge
there has not been a comprehensive study by social scientists
on the effects of the Nebraska parental involvement statute
which was approved in 1991. However, we do have some data
available from the Nebraska Department of Health. There,
statistics show that the number of abortions for minors
decreased after enactment of the law. At the same time,
however, the number of births in Nebraska declined after the
law's passage, whereas in the four years before passage, the
number of live births increased.
So, we see a decrease in teenage abortions in Nebraska after
passage of their law, but there is no corresponding increase
in live births. This suggests that the real effect is a
reduction in the teen pregnancy rates and that is something I
believe all who have testified and those on the committee have
agreed is common ground.
Mr. Chairman, I have the raw data here from the Nebraska
Department of Health, which you are free to review and draw
your own conclusions. I certainly have drawn mine.
The next topic that I want to address is the health effects of
abortion. We've already heard a number of people testify
about this, and several witnesses, including Dr. Peter
Nakamura, who was with us for the hearing in the HESS
Committee and the first hearing of the Judiciary Committee,
claimed that abortion is a very safe procedure and that
carrying a baby to term is actually more dangerous. Mr.
Chairman, I'm not a research scientist, nor is Dr. Nakamura I
might add, but I am aware of many studies on the health risks
of abortion and I have read them. I read several of these and
produced a synopsis of some of these studies which I'll also
leave with you. These studies were published in the American
Journal of Public Health, the Journal of the American Medical
Association, and other reputable periodicals.
Some of the more typical complications from abortion include
infections, hemorrhage, ripping or perforation of the uterus,
anesthesia complications, cervical injury, and death. I note
that even Dr. Nakamura agreed, when he said that it is common
ground that abortion is not safe. There are risks involved
with it. The fact that these complications may be rare is of
little consolation to the parents of a child who has been
victimized in this way. There are many case studies but I
will cite one: In 1985 a 13 year old girl in Queens, N.Y.,
Dawn Ravenell, died as a result of complications from a legal
abortion. Her parents were not informed that their daughter
was pregnant nor that she was going to undergo an abortion,
because New York has no parental involvement law. Dawn's
parents filed a lawsuit and were awarded more than $1.2
million. [Source: New York Daily News and New York Post, Dec.
11, 1990.]
Let me suggest to the committee that the relative risks of
abortion versus childbirth is really an irrelevant question,
regarding this legislation. Let me explain. The data I have
just presented to the committee indicate that parental
involvement laws cause a decrease in both abortions and live
births because it causes a reduction in teen pregnancy. It
really doesn't make much of a difference who wins the debate
about which is safer. Let us agree that there is some health
risk involved in both teen abortion and teen childbirth. This
bill will cause reductions in both. From a public health
standpoint this bill makes good sense. I'm disappointed that
this Administration is opposing it. In my mind, Governor
Knowles and Dr. Nakamura, the director of the Division of
Public Health, should be leading cheerleaders for this effort.
They should be joining the nearly 80 percent of Alaskans who
support parental involvement regarding abortion decisions for
minor girls.
I want to touch on the topic of a breast cancer link. I think
it's important to do this because last week Dr. Nakamura cited
a study, and then he said, "and I hope we finally put this to
rest." Well, we haven't put it to rest with such a casual
treatment as he gave it, and I wouldn't want this committee to
in any way, derive that type of information from his
testimony. Dr. Nakamura cited a recent study from Denmark to
justify his conclusion.
As I previously told you, I'm not a research scientist,
although I've research some areas of engineering, but not in
medicine. I'm going to limit my remarks to quoting someone
who is. Dr. Joel Brind is a Professor of Endocrinology at the
Department of Natural Sciences at Baruch College, City
University of New York. Dr. Brind is one of the leading
researchers in this area. Last October Dr. Brind published a
comprehensive review and "meta-analysis" of 23 different
studies on breast cancer and abortion.
Dr. Brind has stated that the methodology of the Danish study
on abortion, which Dr. Nakamura quoted and cited, and breast
cancer is highly flawed. I have a five page critique of the
Danish study that Dr. Brind prepared, and I would like to
submit it also to committee members as part of the record.
I'll also point out that since 1957, there have been at least
30 studies done on the issue of an abortion-breast cancer
link. Of these studies, 24 have shown an increased risk of
breast cancer among women who have had abortions, as opposed
to only six that do not show the increased risk.
One of the more notable studies on the abortion-breast cancer
link was performed not far away from here at Seattle's Fred
Hutchinson Cancer Research Center. This study was conducted
by Dr. Janet Daling and 3 other scientists in Washington. I
also have copies of that study for your perusal.
And Mr. Chairman while the breast cancer-abortion link is not
something that I believe is foundational to whether the
enforcement of parental consent is proper for the State of
Alaska, I also believe it is important that we not take
testimony that is flawed and accepted as fact in the public
record.
The next topic that I wish to address is the opinion of health
professionals in groups regarding parental consent/parental
involvement statutes. There has been considerable discussion
about how the medical community views this bill. Critics of
the bill and the enforcement of parental consent laws have
represented to this committee that medical professionals are
largely opposed to parental consent for abortion. I've had
several doctors contact me, and based on that testimony, and
what I've heard, I do not believe this is true. I believe
there are medical professionals who do oppose it and we've
heard from some, and we heard from some last year when we were
debating SB 105.
I think it's fair to say that society as a whole is deeply
divided on the issue of abortion and probably because of that
there is carryover that muddies the thinking of some people
when it comes to a topic that, in my opinion, can be as clear
as parental consent for minors. But neither the judiciary or
the medical community is immune from these divisions on the
topic of abortion. Critics have represented that the American
Medical Association opposes parental consent. I'll point out
that many medical professionals have arrived at a different
conclusion. When the Supreme Court reviewed Minnesota's
parental consent law, one of the most effective defenders of
the law was the Association of American Physicians and
Surgeons, and that was cited in Ms. Koehler's testimony
earlier. This is the largest association of private
practicing physicians in the United States. This group
submitted an amicus brief defending the State's law. The main
theme of their brief centered on the effectiveness of the
Minnesota law in reducing teenage pregnancies and as I
commented earlier, that is a public health goal we can all
endorse. I have copies of their brief. It contains charts
and graphs that demonstrate the effectiveness of the Minnesota
law and we will distribute that also to you.
Closer to home, I have received letters from several Alaska
doctors who strongly support SB 24. One of these doctors is
an obstetrician/gynecologist. I would like to present all of
these letters that we have received, at least through this
time today, for the Committee's review.
At last week's hearing, Senator Parnell touched on the fact
that there is an economic interest at play in the abortion
controversy. Abortion has regrettably become one of the most
common surgical procedures in the United States. It is
estimated, including by sources from those within the abortion
community themselves, using their own statistics, that more
than 35 million abortions have been performed in the United
States alone since 1973. Bear in mind that some of the
testimony we've heard comes from medical professionals who
would be adversely affected economically by the passage of
this bill.
One final point - at last week's hearing Dr. Nakamura told the
Committee that he had a list of, as he said, better than 40
health-related organizations, to use his terms, which oppose
parental consent before abortion. With all due respect to Dr.
Nakamura, I suggest he is guilty of some exaggeration,
probably not unlike many others in this Capitol. But perhaps
his is unintentional. About half of the 42 groups on his list
cannot be fairly described as health professional
organizations. They include such organizations as the
American Civil Liberties Union, the National Organization for
Women, Zero Population Growth, People for the American Way,
Voters for Choice. I could comment on what I think of some of
those organizations but I'll refrain. I'll just suggest that
they are not organizations that I would call health
professional organizations. I have a copy of the list, by the
way, we got it from Dr. Nakamura and I'll make that available
to you.
More importantly, the list Dr. Nakamura provided does not
specifically pertain to the issue of parental consent for
abortion. The organizations are listed under a statement
which reads as follows: "The undersigned organizations OPPOSE
mandatory parental consent or notification requirements for
teens" - and get this - "receiving services at Title X-funded
family planning clinics." The reference is to an attempt made
by Congressman Ernest Istook, who is from Oklahoma, to amend
the Title X family planning program to require parental
consent before services are provided to minors. The effort
failed in committee but that is largely irrelevant to the
issue of abortion consent because abortions are not performed
in Title X clinics, and therefore would have been unaffected
by Representative Istook's amendment. To be sure, many of
these organizations, especially groups like Voters for Choice,
are probably also opposed to parental consent before abortion.
But that's not what this list is all about. I believe we have
a duty to be accurate in our representations.
The next topic is the federal constitutionality of SB 24.
Last week several witnesses claimed that the bill, as written,
would not withstand a constitutional challenge in the federal
courts. Let me suggest that precisely the opposite is true,
and Ms. Koehler spoke to that far more eloquently than I
could. SB 24 was carefully modelled to conform with other
states' statutes that have been tested by the U.S. Supreme
Court and found to be constitutional. In fact, the whole
purpose of this bill is to add the judicial bypass - the
procedure the Supreme Court has said we must have - if our
state's parental consent statute is to be enforced. I'd
remind you that is existing state law, in statute, except for
the bypass. This makes it enforceable.
There have been 8 Supreme Court decisions that have upheld the
validity of parental involvement statutes. The most recent
was Planned Parenthood v. Casey in 1992. I quote from the
concurring opinion of Chief Justice Rehnquist in that case:
"We think it beyond dispute that a State has a strong and
legitimate interest in the welfare of its young citizens,
whose immaturity, inexperience, and lack of judgment may
sometimes impair their ability to exercise their rights
wisely. A requirement of parental consent to abortion, like
myriad other restrictions placed upon minors in other
contexts, is reasonably designed to further this important and
legitimate state interest."
I'll comment briefly on the state constitutionality of SB 24.
Other objections raised suggest that SB 24 will not withstand
a state constitutional challenge because of the "right to
privacy" clause in our State's Constitution. Critics have
pointed out that the Florida Supreme Court struck down that
state's parental involvement law on privacy grounds. However,
let me point out that California also has a privacy clause,
similar to Alaska's, and in April of last year the California
Supreme Court upheld the California statute. A review has
been granted in that case, though the issue is not completely
settled, as Ms. Koehler also testified to, and of course we do
not know what the Alaska Supreme Court will do. We can only
guess, but my hope is that they will employ the same reasoning
the justices in California used if they have an opportunity to
review this.
Let me quote to the committee the conclusion of the California
court:
"We conclude that the judicial bypass is minimally
intrusive: it is speedy, informal, and confidential. There is
no substantial evidence supporting the trial court's finding
that requiring an unemancipated minor to appear before a
juvenile court judge for an expedited, informal hearing on
these important questions -- even if somewhat intimidating --
poses a gratuitous threat to the physical or emotional well-
being or either a mature or an immature unemancipated minor."
And that, Mr. Chairman, concludes my testimony in response to
that offered by others. I commend this legislation to you.
I believe it represents common ground, if ever there is common
ground on the issue that even touches on abortion, it would be
in the area of parental consent. I believe that it is timely
for us to have a law, not only on the books, but one that is
enforceable and enforced. The result of that, I believe in
the State of Alaska, will be the saving of lives, will be the
protection of children and the protection of our families. I
commend it to you and suggest you report the bill as quickly
as possible.
CHAIRMAN TAYLOR informed committee members Dr. Nakamura was
attending a meeting and would not be available to testify.
SENATOR MILLER moved CSSB 24(JUD) out of committee with individual
recommendations and all accompanying fiscal notes. SENATOR ELLIS
objected. The motion carried with Senators Miller, Parnell, and
Taylor voting in favor, and Senator Ellis opposed.
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