Legislature(1997 - 1998)

02/19/1997 01:54 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
       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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