Legislature(2003 - 2004)
04/16/2004 08:08 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 219-OFFENSES AGAINST UNBORN CHILDREN
The committee took up SB 219, sponsored by Senator Fred Dyson.
SENATOR FRED DYSON, District I, told members that he filed the
bill last year but expected the House version to be the vehicle
that moved forward. However that bill got "high centered" in the
House so, at the request of the sponsor of the House bill, he
has been working to get SB 219 passed.
SENATOR DYSON informed members that Congress has enacted an
unborn child protection act but it is only in effect under
federal law and federal jurisdiction. Thirty-one states have
enacted or are in the process of enacting similar legislation in
state law. SB 219 mirrors the intent of the federal law but is
tailored to fit into Alaska's statutory structure. He asked
members to adopt the proposed committee substitute (CS), labeled
version H. In that version, a few lines were changed to make
sure that this law does not apply to people involved in abortion
services with the permission of the mother.
SENATOR OGAN moved to adopt version H as the working document
before the committee.
CHAIR SEEKINS announced that without objection, version H was
before the committee.
SENATOR DYSON pointed out that on page 2, line 31, subsection
(3) is new. It exempts acts by a pregnant woman committed
against herself and her unborn child. Similar language on page
3, lines 26 -27, makes clear that a woman who consciously does
something to herself or with the assistance of medical people to
abort a child is not subject to prosecution.
CHAIR SEEKINS asked if this law would only apply to acts done
unwillingly against a mother and unborn child.
SENATOR DYSON said that is correct. He said the bill is clear
that the crime is murder if the offender intended to harm the
unborn child; the crime is manslaughter if harm was done
unintentionally but occurred as the result of assault, rape,
burglary, etc. He believes the bill is well drafted; it follows
model legislation.
CHAIR SEEKINS referred to the language on page 2, lines 16-19,
and said the standard is recklessly rather than negligently.
SENATOR DYSON affirmed that is correct. He then noted the first
law of this type was enacted in California in 1970 after a
tragic occurrence in which an unborn child died.
SENATOR OGAN said he would be more comfortable with the language
that exempts a woman who harms herself or unborn child if it
only applied to an abortion performed by a doctor or some type
of standard medical practice for the sake of safety.
CHAIR SEEKINS agreed but said SB 219 is meant to apply to acts
done by an outside party that are not agreed to by the woman. He
stated:
We would now be bringing under the law, if we made
this any more difficult, someone who maybe was a very
emotionally distraught prospective mother who may do
something without whatever the level of culpability
is, simply trying to avoid all kinds of emotional
problems, as they might be, we would simply be
widening the net and taking that person in. And I
think the intent - tell me if I'm wrong here Senator,
is that you're bringing the net in for those people
outside of that woman herself who would cause the
death of the baby but not trying to put the woman,
herself, inside that net. Under current law, all of
them are outside of the net.
SENATOR DYSON said he is sympathetic to Senator Ogan's concern
but he does not believe this bill is the proper place to address
that concern.
TAPE 04-42, SIDE B
He noted such a change would open up the possibility of
prosecuting the woman for assault if she, for instance, was
imbibing alcohol or smoking and damaged the child. He said
although those concerns might be legitimate and worthy of
consideration, they are outside of the scope of SB 219.
SENATOR OGAN said, for the record, he has spent a lot of time
thinking about children who are assaulted by their parents by
alcohol abuse and that is avoidable.
CHAIR SEEKINS agreed that the damage done to unborn children as
the result of alcohol abuse is a terrible scourge on Alaska and,
more data is showing the amount of damage is so huge as to
compel the legislature to address that issue, but not in this
bill.
SENATOR DYSON agreed and mentioned some of his personal
experiences with fetal alcohol syndrome children.
SENATOR FRENCH asked Senator Dyson if it is his intention to
"weed out" of this bill any harm a woman might do to her fetus
through smoking, drinking alcohol, or use of recreational drugs.
SENATOR DYSON said that is correct.
SENATOR FRENCH asked Senator Dyson why he chose the moment of
conception for protection rather than the viability standard.
SENATOR DYSON asked Mr. Luckhaupt, the drafter, to help him
address the question. He believed SB 219 follows model
legislation from other states.
MR. JERRY LUCKHAUPT, legislative counsel, Legislative Legal and
Research Services, explained that he used the moment of
conception as the definition of unborn child because the model
legislation he was supplied with used that definition, as does
the federal legislation. He believes it will be difficult to
apply.
SENATOR DYSON noted that historically, the law has tended to
follow the science, and up until the 1860s or 1870s, the law
generally got involved past the stage of "quickening," which is
when the mother first notices movement of the fetus. He
furthered:
As our understanding of embryology and so on and so
forth has progressed, they realized that that was kind
of an arbitrary point and that obviously it was life
of a developing child far beyond that. So somewhere on
that spectrum - and from my perspective
philosophically or in terms of a worldview, as long as
it is clear that that's a wanted child, you know, in
that spectrum, in that progression, caught doing
activity that caused the damage or termination from
that has the same effect of damaging or killing a
wanted human being and so on, so that's why I picked
it.... What if it's after conception but before
implantation and actually no one would know at that
point and it would be very difficult to even know that
a crime had happened because previous to implantation,
the woman is not receiving any chemical signals in her
body that it's happened and the hormonal changes are
not happening so it would be very difficult to prove
that there was even a conceived child starting that
process. So I think there will be no prosecutions here
under this until there's some evidence that there was
a pregnancy in process.
SENATOR FRENCH said he could foresee prosecutions brought in
front of members of the community in other states where all of
the voir dire before the jurors centers on when one believes
life begins. He said that would stray off of the normal path of
criminal prosecution. His sense is that the closer the
definition gets to a viable fetus, the more workable the law
will be in the hands of the prosecutor, judge, and jury.
CHAIR SEEKINS noted in many cases, viability is considered to be
as late as the seventh month of pregnancy.
SENATOR DYSON said he is aware of a child who survived [outside
of the womb] at 19 weeks and as technology moves forward, that
target will change. He said he is not sure he would want to
support a law that says a person is culpable for killing a child
at 28 weeks but not at 24 weeks. In his view, the value of that
unborn child shouldn't be set based upon available technology.
SENATOR OGAN noted that many women have miscarriages that are
stress induced. He questioned how stress caused by another's
actions, whether intentional or not, would be handled.
SENATOR DYSON said he believes this bill addresses that scenario
exquisitely because if one's intent is to engage in another
crime, such as setting a fire to a house, that person would be
prosecuted for arson and whatever damage was done to the people
and their possessions. In addition, if that crime caused a
miscarriage or premature birth, the person could be charged with
that unintended action. However, that would only apply if the
harm done to the unborn child occurred as the result of another
crime.
CHAIR SEEKINS asked, if the charge was manslaughter, an
automobile accident would be included.
MR. LUCKHAUPT said it would not in the example given by Senator
Dyson. He tried to adopt Alaska's murder statutes with changes
to apply in this situation. He retained crimes like felony
murder so that if someone was in the process of committing a
felony and caused the death of an unborn child, that person
would be prosecuted for murder. He said one could be prosecuted
for manslaughter or criminally negligent homicide resulting from
an auto accident if other circumstances are involved, for
example driving while under the influence of alcohol or engaging
in drag racing.
CHAIR SEEKINS took public testimony.
MS. CASSANDRA JOHNSON, an Anchorage resident, said all agree
that domestic violence is a serious problem in our society and
that it is all too prevalent in Alaska. She believes SB 219 is
not about protecting pregnant women; if it were, it would
include sentence enhancement provisions for assault or mandatory
education programs. With eight years of work experience in
domestic violence, she thinks SB 219 is the wrong approach to
protect women from assault by husbands, partners, or former
partners. The National Domestic Violence Advocates and National
Advocates for Pregnant Women opposed this bill on the federal
level. She urged the committee to not pass the bill.
MS. ROBIN SMITH, a resident of Anchorage, read the following
testimony for Dr. Carolyn Brown, an OB-GYN who was unable to
attend. She apologized in advance if the testimony does not
apply to the new committee substitute.
I have read through SB 219 a number of times and would
like to offer the following comments to the proposed
legislation. I ask that these remarks be incorporated
into the record and they be considered by the Senate
Judiciary Committee.
Homicide is the number one killer of pregnant women in
our country. 240,000 pregnant women, 6 percent of all
pregnant women, are battered each year. Injury to a
fetus is first and foremost in an injury to a pregnant
woman, where the fetus presides. It is imperative that
any fair and just legislation deal with that issue.
The proposed legislation deals with none of that if it
does not address the injuries to the pregnant woman.
So where is the protection provided in the name of SB
219 that [is] desperately needed for that mission?
Otherwise, what does this proposed legislation mean to
the pregnant woman who carries that fetus or the
alleged perpetrator?
[Indisc.] offenses perpetrated by a pregnant woman on
the fetus. These may include, but are not limited to,
abuse of alcohol, tobacco, legal and illegal drugs and
pharmaceuticals, attempted suicide, self abortion,
missing prenatal appointments, abandonment of
reasonable nutrition, resulting in obesity, a
[indisc.] injury, refusal of prenatal care, prenatal
negligence, working with environmental hazards, sexual
promiscuity resulting in sexually transmitted diseases
and [indisc.] of tubal pregnancy, to name a few. Many
of these can result in the death of the fetus. What
will this proposed legislation do with these women and
will they be charged with murder?
There may be offenses perpetrated by physicians and
[indisc.] with an in vitro fertilization or an idea
for assistive reproductive technology, where multiple
zygotes or [indisc.] may be destroyed or frozen. Is
this murder and are the zygotes and [indisc.] unborn
children if this results in destruction? There also
may be offenses where the pregnant woman chooses not
to file charges against the alleged perpetrator. How
does this proposed legislation plan to deal with this?
The [indisc.] just what the offenses are, who the
offenders are, and the manner of the offenses are so
convoluted and [indisc.] so as to make this proposed
legislation as written a threat to due process, right
to privacy, freedom from unreasonable search and
fundamental rights of women, including reproductive
rights. Who is [indisc.] pregnancies to assure that
offenses are not committed against the fetus with
drugs, tobacco, alcohol, neglect that may lead to
fetal death and injury? How will we know? And what
about second-hand smoke? Will all stillbirths be
mandated to be investigated as potential murder and
who will do this and at what cost?
[The remainder of Dr. Brown's testimony was inaudible.]
SENATOR DYSON informed Ms. Smith that a paragraph is included in
the bill that says a woman cannot be prosecuted if the actions
that resulted in the death or injury to the unborn child were
committed under usual and customary standards of medical
practice during diagnostic testing or therapeutic treatment. He
believes that will provide protection from prosecution if the
damage occurred during a medical procedure.
SENATOR OGAN felt the secondhand smoke issue should be
addressed. He asked if a person could not be prosecuted unless
criminal intent was involved.
MR. LUCKHAUPT said that is an interesting issue and would
involve questions of fact and approximate cause. He said medical
science has not progressed so far as to be able to prove that
secondhand smoke was the cause of a miscarriage. He surmised if
one required a pregnant woman to sit in a smoky room with the
intent of doing harm to the fetus, and medical testimony could
back that up as the cause of the miscarriage, he could see that
occurring.
CHAIR SEEKINS thought, if the woman was unknowingly forced into
that situation, that would be an assault.
MR. LUCKHAUPT said he could clearly see that situation, just
like forcing a pregnant woman to drink alcohol.
CHAIR SEEKINS asked if current law already addresses similar
acts against the woman herself.
MR. LUCKHAUPT said it does. He noted the definition of serious
physical injury specifically includes miscarriage.
CHAIR SEEKINS said those laws are not reiterated in this bill
but that does not indicate an intent to not provide the same
coverage to the woman that this bill will provide to the unborn
child.
MR. LUCKHAUPT replied:
That would be correct. We are not attempting to - or
at least the draft legislation I was provided, what I
could discern from that, it was not attempting in any
way to define a person for purposes of our murder and
assault statutes to include an unborn child within
that definition and so thereby you avoid all those
questions about a child being born alive or being
viable, or any of those things, but it was an attempt
to create a whole new area of law to protect this
unborn child outside of all of the existing law that
already exists.
SENATOR OGAN said many women who work in bars are exposed to
secondhand smoke and noted that an assault charge requires
intent. He wondered whether the state would have to prove
criminal intent on the part of an employer if a child was born
with a defect because of exposure to secondhand smoke in a work
environment.
MR. LUCKHAUPT said the state of culpability required for an
assault charge is "knowingly" so a person would have to be aware
that the conduct is of that nature. He noted the scenario
described by Senator Ogan presents one of the problems, for
example, the woman's pregnancy might not be obvious. There will
be many circumstances in which it will be difficult to show the
perpetrator had the requisite criminal intent to cause harm to
the unborn child. That will always be a limitation in regard to
the assault provisions of the bill.
SENATOR FRENCH referred to the definitions on page 2 and asked
for reassurance that the bill would not apply to anything in the
area of assistive reproductive techniques if something went
wrong with a procedure.
SENATOR DYSON said that is correct; the bill is not intended to
deal with any fertilized human cells outside of the womb.
SENATOR FRENCH suggested expanding subsection (2) on page 2,
lines 29-30, to make certain the bill does not cover any of
that. His concern is this could stray into legitimate areas of
medical technology and in the hands of the wrong prosecutor,
could lead to trouble.
SENATOR DYSON said he is not an expert in that area and does not
have the tools to deal with that. He added, "But I think that
there's got to be intent here - gotta be intent to have done a
criminal act or a criminal act against the woman that leaves us
in the clear there."
MR. LUCKHAUPT noted that "therapeutic treatment" is fairly broad
but he could add the correct phrase dealing with reproductive
therapy.
CHAIR SEEKINS noted the committee is talking about attempts to
assist in conception.
SENATOR FRENCH commented that Senator Dyson made a good point
but he pointed out the manslaughter standard is reckless, which
is a high standard but it can be overcome.
CHAIR SEEKINS said the committee is only attempting to address a
conceived egg within the woman and there must be intent to cause
harm.
SENATOR DYSON said he is aware of a situation that involved
enhanced fertility with implantation of several embryos. Later
in the pregnancy, the doctors felt development of the three
embryos was threatening the chance of success of any of them and
performed a therapeutic abortion. During that surgery, the leg
of the surviving embryo was amputated.
SENATOR FRENCH said that although he understands the intent of
the bill, the definition of "unborn child" is fairly broad and
does not say whether it is inside the womb.
CHAIR SEEKINS suggested adding the phrase to page 2, line 30,
after the word "or", "medical practice to assist pregnancy."
MR. LUCKHAUPT thought that was a good start.
SENATOR DYSON said he would be open to inserting "and in utero"
on page 5, line 10, after the word "conceived."
SENATOR FRENCH said the federal definition of "unborn" child
means a child in utero, which means a human child at any stage
of development who is carried in the womb.
CHAIR SEEKINS again suggested adding "medical practice to assist
pregnancy" at the end of line 30 on page 2 [Amendment 1].
SENATOR DYSON accepted that as a friendly amendment.
SENATOR OGAN moved to adopt Amendment 1.
CHAIR SEEKINS announced that with no objection, Amendment 1 was
adopted.
SENATOR DYSON suggested a conceptual amendment to adopt the
federal definition of an unborn child [Amendment 2].
SENATOR OGAN so moved.
CHAIR SEEKINS announced that with no objection, Amendment 2 was
adopted.
SENATOR FRENCH asked for the opportunity to work on a definition
that moves closer to viability. He believes without that, this
bill will be very difficult to implement.
SENATOR DYSON committed to Senator French that such an amendment
would be considered at "other stops along the way," although he
would not support it.
SENATOR OGAN recalled seeing a photo on a national magazine
cover of an in utero operation in which a tiny hand was hanging
on to the fingernail of the surgeon. He noted that baby was not
viable but it looked like the baby knew he was having a life
altering operation.
With no further discussion, SENATOR OGAN moved CSSB 219(JUD)
from committee with individual recommendations and its attached
fiscal notes.
SENATOR FRENCH objected.
The motion carried with Senators Therriault, Ogan and Seekins in
favor and Senator French opposed.
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