Legislature(2007 - 2008)BELTZ 211
03/12/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB165 | |
| SB164 | |
| SB264 | |
| HB268 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 264 | TELECONFERENCED | |
| + | HB 268 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 164 | ||
| = | HB 165 | ||
SB 264-PARTIAL-BIRTH ABORTION
1:46:55 PM
CHAIR FRENCH announced the consideration of SB 264, an Act
relating to partial-birth abortion. He recognized the prime
sponsor and highlighted that the subject is difficult to discuss
and debate, but in this system of democracy it's crucial that
these things are debated in public. Clearly there are strong
feelings on both sides of this matter and everyone will have an
opportunity to speak with as much passion as they like.
Nevertheless, everyone is expected to comport themselves in a
way that's respectful to each point of view.
1:48:44 PM
SENATOR OLSON, sponsor of SB 264, echoed the Chair's sentiments
about respecting differing opinions. He paraphrased the
following sponsor statement:
Since the Supreme Court of the United States
determined that states, not the federal government,
should control certain medical procedures within their
state boundaries, abortions have been legal in Alaska.
Despite strong controversies on the abortion issue,
there is one practice that many people agree needs to
stop. Partial-birth or late term abortion is a process
that few people support.
Senate Bill 264 will end this practice in Alaska. The
procedure is well described by its name, with the
child being partially born and then terminated. Alaska
is one of only 14 states that has not restricted this
practice. Recently, Congress passed legislation with
broad bi-partisan support to ban it nationwide.
Senate Bill 264 will bring State of Alaska statutes
more in line with federal law.
CHAIR FRENCH observed that the sponsor is uniquely positioned to
speak on the issue given his background in both medicine and
law. As he read the Gonzales decision [Gonzales v. Carhart] he
became aware that the mother's health exception was not added in
this bill, although it has been added to many abortion bans. He
asked the sponsor to articulate his view about the degree of
medical uncertainty with respect to whether an intact D&E
(dilation and evacuation) is less risky to the health of the
mother than a standard D&E.
SENATOR OLSON asked if he was talking about a D&C (dilation and
curettage), he was not familiar with the term D&E.
CHAIR FRENCH apologized if he had written it down incorrectly.
SENATOR OLSON explained that dilatation and curettage is a
medical procedure that's done by physicians and other healthcare
providers. Essentially, the cervix is dilated with an instrument
and what's inside the uterus is evacuated. He asked the Chair to
pose his specific question in relation to the Carhart case.
1:52:11 PM
CHAIR FRENCH relayed that he was reading from the Gonzales v.
Carhart decision, which has a fairly lengthy description of a
D&E.
SENATOR WIELECHOWSKI added that on page 4 it says that D&E is
dilation and evacuation.
CHAIR FRENCH continued to say that the Gonzales decision points
out that there are two ways to perform a D&E-the standard method
and the intact method. The intact method is discussed in SB 264.
The standard D&E is different in that it involves more than one
pass and the removal of pieces from the uterus. Some medical
experts feel that several passes involves greater risk for
abrasion, cuts, and infection than the intact D&E. He noted that
over the years the U.S. Supreme Court has consistently said that
the health of the mother must be considered when looking at any
abortion ban. With that in mind, he questioned whether this bill
shouldn't contain that exception.
SENATOR OLSON clarified that he's been to medical school and
he's a physician so he can speak from that standpoint, and he's
been to law school, but he isn't a lawyer. With respect to the
health of the mother he stated the following:
When you have a mother that comes on in with a number
of children and she's starting to bleed out-as has
been the case in some of the situations that I've
seen-and her hematocrit starts to run low, you need to
do something in order to save that mother. And
whatever means are necessary to go ahead and evacuate
or stop the bleeding is what I consider the standard
of medical care out there. And that's the obligation
that I think a practitioner has to the patient that
comes through the doors of whatever institution you
happen to be working at, whether it's a private clinic
or a hospital. As far as going out and taking out a
late-term conceptus that's there [and] that may or may
not be viable, I think that's where people start to go
ahead and raise questions as to whether that…should be
allowed. And I think that's where the emotional
argument comes in-at that point.
1:54:41 PM
… [dilation] of the cervix is one of those things
that's fairly uncomfortable especially if it's done
without anesthesia or any kind of
analgesic…medication. The…[dilation]…looks fairly
uncomfortable...and then you go in there with a
curette or a curettage or in your case you brought up
the idea of using a pair of forceps. … You're
introducing a foreign object into the cavity of a
human being and whenever you do anything like that
you're at risk for abrasions, you're at risk for
infections, you're at risk for a number of other
things. One of the things I have seen most often
though actually is perforation of the uterus. I think
that's one of the things that is very difficult to
evaluate. I know there have been a fair number of
complications with that in the practice when I was
practicing fulltime. We want to try and avoid that at
all costs. But as far as evacuating something that's
intact, you're still dealing with the idea that
you're…essentially abrading the placenta away from the
lining of the uterus. Obviously there's going to be
some bleeding with that, and there's other medical
risks that you may be putting the mother's life in
more danger than she was if she was to actually
continue on with the pregnancy.
I want to make it clear that pregnancy in itself…has
its own medical risks. … Many women before the
practice of medicine became more complicated and more
developed than it is in the Western society. And you
can see this in Third World countries, people that are
pregnant many times do die…giving childbirth.
1:57:10 PM
SENATOR THERRIAULT asked the sponsor if he believes the
suggested language would survive the expected state
constitutional challenge.
CHAIR FRENCH deferred the question, awaiting the arrival of the
drafter, and opened public testimony.
1:59:41 PM
DR. JAN WHITEFIELD, Obstetrician Gynecologist practicing in
Anchorage, said he does pregnancy terminations and he objects to
SB 264. He stated the following:
As you and your honored colleagues have spoken, you
have used the term late term abortion and the term
D&E. Now the bill that I have in front of me, Senate
Bill 264, describes what a "partial-birth" abortion
means, and it goes through an actual description. And
if one puts on the hat of a person who thinks of a
"D&E or partial-birth abortion," each of you will have
an image in your mind as to what that means-what it
means to bring a fetus through a mother's vagina to
where the fetus dies-acts that may be performed. And
you would have some sort of image of that.
Now the person who practices those first and second
trimester abortions-I have to look at this legislation
and think about this generally in terms of the
description and then specifically what it means as a
practitioner. And in addition I took this bill to my
colleagues-I have…five other colleagues who perform
abortions in my office. And we all went through the
bill and there's nothing in this bill that talks about
how far along a pregnancy would be before this bill
would be applied. This doesn't say this is a second
trimester definition; this doesn't say it's a late
second trimester definition. In fact, the definition
where in pregnancy that this would be applied is
completely void. It's not stated whatsoever.
When I do a first trimester pregnancy termination, one
of the things I will do is dilate the cervix and put a
vacuum suction tube through the cervix into the
uterus. At the time that I do that if a woman has had
a number of children her cervix may actually lie at
the opening of her vagina. And when I apply the
suction to empty the patient's uterus out at a 12-week
pregnancy or an 11-week pregnancy, sometimes I will
see the feet of the fetus come up the suction tube
when the abortion is being done. When the fetus
entered the suction tube it was alive, and when it
comes out at the end of the suction tube, obviously,
it's not alive.
The problem is that in this particular law which is
being proposed, it doesn't exclude that particular act
as being included under the definition of a partial-
birth abortion. In this particular case, what would be
done is I would be bringing the fetus into a suction
tube and I would see, in this case, that the feet are
coming out first. It would be a breach presentation
and the fetus may be essentially almost completely
outside the woman's body before it actually dies. And
that's, of course, limited to women who have a lot of
relaxation of their vagina and cervix and the cervix
is present at the opening of the vagina.
2:01:49 PM
So this bill has unintended consequences. The way it's
written, if I do the standard vacuum suction first
trimester pregnancy termination, it would be entirely
possible for somebody to look over my shoulders and
say, "Look, I see that fetus's feet in the fallopian
tube. It was dead when it came out of the tube, but it
was alive when it went into the tube and that is,
therefore, a partial-birth abortion." So as I see it,
the way this law is written there is unintended
consequences and the penalty is not malpractice. The
penalty is two years in prison if you look at the
federal bill, along with considerable monetary
problems.
When I took this bill and showed it to my partners who
do first trimester pregnancy terminations and said,
"As you read this bill, would this modify your
practice in terms of what you would offer a patient in
terms of a first trimester pregnancy termination?"
Three of the five said yes, that they would limit how
far along in the first trimester they would go because
they were concerned that the ambiguity in the way the
bill was written could therefore be applied to a first
trimester termination. As such, I see that as
unintended consequences of the way this was written.
Maybe I'm fooling myself. Maybe those were intended
consequences. Maybe it was meant to be chilling to
people who do pregnancy terminations at any point in
pregnancy.
2:05:21 PM
CHAIR FRENCH noted that Ms. Michelle was available and asked
Senator Therriault to rephrase his question.
SENATOR THERRIAULT asked if the language suggested in SB 264
takes previous litigation into account, and if it is
intentionally phrased so that it will make a difference or be
meaningful to the court.
2:05:57 PM
JEAN MISCHEL, Attorney, Legislative Legal and Research Services
Division, opined that from a legal standpoint, the bill
significantly changes the phrasing of a definition of "partial-
birth abortion." "It tracks precisely the Congressional Act that
was upheld by the U.S. Supreme Court." In the recent decision
the phrase, "deliberately and intentionally" on page 2, line 6,
was significant so it couldn't apply to an inadvertent partial-
birth abortion if a physician intended to perform a regular D&C
or D&E and the fetus came out too far. "If it weren't deliberate
and intentional then there would be no violation under this
Act," she said.
The language on page 1, lines 8-10, is modified. The new
subsection (c)(1)(A) says, "partially vaginally delivers a
living fetus for the purpose of performing an overt act that the
person knows will kill the fetus;". In the analysis under the
Congressional Act the phrase "living fetus" was significant.
There was concern that a delivery might occur after the death of
the fetus and still be considered a prohibited partial-birth
abortion. The phrase "overt act" was also very significant in
the court analysis so it doesn't apply to a miscarriage or
something else that killed the fetus other than a certain type
of abortion.
2:08:44 PM
MS. MISCHEL said what isn't in the bill is any limitation on the
trimester during which the procedure is performed. The
Congressional Act applies during or after the second trimester
of a pregnancy. SB 264 arguably could apply during the first
trimester. The prohibition in existing law was not modified.
"This is just a definitional change to track the Congressional
standards that were upheld by the U.S. Supreme Court. She agreed
with Dr. Whitefield that without any change to the bill, there
is the potential for enforcement for a first trimester partial-
birth abortion. Currently that isn't specified anywhere in state
law.
2:10:11 PM
SENATOR THERRIAULT relayed that he wanted to have in mind what
key phrases are meaningful to the court.
MS. MISCHEL explained that another very significant change in SB
264 that mirrors the Congressional Act is the description of how
far the fetus comes through the mother's vagina. Other state
laws weren't clear and were found to be unconstitutional, so the
U.S. Supreme Court went into some detail with respect to why
this is not too ambiguous to enforce, or for a physician to
understand. Anatomical landmarks were given to clearly
distinguish a partial-birth abortion from other abortions. There
was testimony or evidence that physicians might be wrongfully
prosecuted for performing an abortion that was not a partial-
birth abortion because "the lines are fuzzy when you're
delivering a little fetus or parts of a fetus." The U.S. Supreme
Court case goes into graphic anatomical detail as to why this
definition does not suffer constitutional vagueness.
2:12:36 PM
SENATOR OLSON clarified that the intent of the bill is not to
ban abortions. He asked Ms. Mischel to address the unintended
consequences that Dr. Whitefield highlighted, so that the valid
concerns of obstetricians and other healthcare providers could
be allayed.
MS. MISCHEL reiterated that this bill addresses the federal
analysis of the constitutionality of the partial-birth abortion
ban. Other than setting the trimesters, this is consistent with
the Congressional Act. But the Alaska State Constitution has an
express right to privacy and she cannot state with any certainty
that the Alaska Supreme Court would agree with the U.S. Supreme
Court, that this isn't constitutionally vague and doesn't
otherwise infringe on an Alaska resident's right to privacy.
2:14:38 PM
MS. MISCHEL explained that the U.S. Supreme Court relied heavily
on the Casey case [Casey v. Planned Parenthood] and the Alaska
Supreme Court rejected the Casey interpretation of a woman's
right to privacy in the context of an abortion. The likelihood
is that someone will ask for declaratory judgment to hear from
the Alaska Supreme Court, she said. Since there is no trimester
limitation in the bill, she agrees with Dr. Whitefield that
performing a partial-birth abortion in the first trimester is
arguable prohibited under this bill. She reiterated that the
definition of partial-birth abortion does provide anatomical
landmarks so under this bill, so physicians aren't prohibited
from performing other types of abortions. "Just an abortion that
is performed after partially delivering a living fetus through
the vagina that causes the entire fetal head to come outside the
mother's body, or the trunk past the navel if it's a breach
delivery." That's as specific as I can be with respect to
questions about the practice, she said. "The intent of the bill
and the function of the Congressional Act that was upheld by the
U.S. Supreme Court was to proscribe only the living fetus
partial-delivery type of abortion." Although it's being called a
partial-birth abortion, the procedure does have a more technical
term.
MS. MISCHEL said, "I think these committee hearings are a good
opportunity for committee members to describe and to make clear
that the intention of SB 264 is not to prohibit other types of
legalized abortion in the state."
2:17:26 PM
SENATOR McGUIRE said she appreciates the analysis but she
believes the sponsor is saying he would like the trimester point
defined in the bill. With due respect to the idea that someone
would review the committee recording to determine the intent,
she said she thinks it's better to have the trimester point
clear in the bill itself. She asked whether other states that
have passed legislation based on the Gonzales case, have defined
the second and third trimester in their legislation.
MS. MISCHEL said her limited review of other states' responses
to the Gonzales case is that, unlike Alaska, they already had a
trimester limit in existing state law. She continued to say:
An educated guess is that most states do expressly
limit the prohibition to second trimester abortions,
as does the Congressional Act. But since our partial-
birth abortion prohibition in current law didn't have
a trimester limit and this bill just redefines the
meaning or partial-birth abortion, really to avoid the
vagueness challenge, it is a good idea and I agree
with you that if the intent of the committee is to
limit this to second trimester abortions that that
should be included in this bill.
2:20:01 PM
CLOVER SIMON, CEO, Planned Parenthood Alaska, stated opposition
to SB 264. She stated the following:
The language in this bill closely tracks the federal
ban, which was just discussed, that was upheld in 2007
by the U.S. Supreme Court. However, the Alaska Supreme
Court has held that the state constitution's right to
privacy is stronger than the federal right, and in
March of 1998 the Alaska Superior Court found the
newly enacted statute [AS] 18.16.050 partial-birth
abortion ban in violation of the Alaska Constitution.
And I don't feel that this change in language
adequately addresses why it was found
unconstitutional. From the conclusion in the Superior
Court, "The Act is also found to be a restriction on a
woman's fundamental right to an abortion as set forth
in Valley Hospital by burdening virtually all
abortions due to its vagueness and therefore is
unconstitutional for that reason as well. The Act is a
violation of a woman's right to privacy guaranteed by
the Alaska Constitution."
What continues to trouble me about this bill is that
all procedures covered under the federal abortion ban
passed in 2003, which was upheld by the federal
Supreme Court, are already against the law nationwide
and obviously, here in Alaska. Currently, these
procedures as described in the bill, if they truly do
apply to second trimester abortion, are not happening
here. Secondly, the bill does not address the
protection of the health of a woman who might, under
some horrible circumstance, need medical care that
might be construed as falling under this ban.
The sponsor stated that this bill puts in definition,
in our state statutes, some clarity to partial-birth.
However, there's still-as was just discussed-no
clarity on when the statute goes into effect so I am
definitely opposed to this bill.
2:22:11 PM
ROBYN HENRY, resident of Anchorage and 15 year Alaska resident,
offered a personal perspective on the issue of a woman's health
risk. She read the following into the record:
In October 2003 I learned that I was pregnant with
Marcus. I had been trying to conceive for over two
years, but nothing had prepared me for the emotions I
experienced when I discovered I was carrying new life.
It was my turn to experience a miracle. Each night I'd
read books about Marcus's development and marveled at
the changes in my body. I could have not been more
thrilled about having this child.
Then in January 2004, approximately 19 weeks into my
pregnancy, I'd gotten the results of a test that
indicated possible Downs Syndrome. After only a
moment's hesitation, I made a commitment to raise and
love my son as he was, unconditionally. A blood test
was done, followed by an ultrasound, in preparation
for an amniocentesis. But the ultrasound revealed the
condition to be much worse than Downs. Marcus had
severe cystic hygroma with hydrops-a disease that
causes fluid under the skin and in the fetal cavity.
In Marcus's case, the fluid buildup was extensive. The
doctor explained to me that the condition was fatal.
Given the extent of the continual fluid buildup, there
was no chance that Marcus would survive. The only
question now was how long he would live before dying
in my womb.
In addition the doctor explained to me that the
situation could lead to a condition called maternal-
mirror syndrome. This is a situation where I could
acquire a similar fatal condition from Marcus, which
in my case could lead to adult respiratory distress
and other complications. The situation left me with
two choices: 1) let the condition take its course,
have a stillborn baby and risk getting very seriously
ill myself, or 2) safely discontinue the pregnancy of
my dying son. While it was not an easy choice to
accept, it was rather straightforward. I chose to
preserve my own life.
As you listen to my personal story, I bring to you
this challenge. Imagine yourself in my shoes, or
imagine yourself in my doctor's shoes. What would it
be like to be told, after hearing such devastating
news, that I would be forced to wait for my child to
die, deliver a stillborn baby, and in the process,
accept the possibility of becoming fatally ill? That I
would not have access to an existing safe procedure
that would preserve my own health. Put yourself in
those shoes because those are my shoes and I am the
face and name of a mother that would be affected by
this bill if you don't include "health for the mother"
in this bill.
In closing…I would like to say that I agree with those
of you that believe that this bill is about life and I
agree with those of you who believe this bill is about
choice, but it's not about life versus choice. …It's
about choosing existing life, which is what I did in
honor and memory of my dying son. … I want my story to
bring home the idea that you need to be very clear
about the language in the bill, and understand the
situations like I was in exist out there and they're
very difficult, and restricting options can be
heartbreaking.
2:26:58 PM
DONNA STARK, representing herself from Anchorage, expressed
opposition to SB 264. She continued to say:
I still find it hard to fathom that the U.S. Congress
passed, United States President signed, and the United
States Supreme Court upheld a law that, in effect,
imposes the death penalty on certain women in this
country. To pass a law interfering with a woman's
right to self determination concerning her medical
care was bad enough. But to not leave any provision
for exceptions for her health, in essence sentences
certain women to death. I would urge you now to
reconsider the federal law as an unlawful imposition
of the death sentence in our state. I especially hope
you would not repeat the mistake by duplicating that
law at the state level.
Just recently our state legislature had first-hand
experience with unintended consequences of laws passed
for political expediency. In the rush to show the
public that it cared about ethics after the corruption
scandal, the legislature finally took action to limit
campaign contributions and gifts. What we all found
was that these new limits would interfere with one of
your member's ability to receive a lifesaving organ
transplant. Who knew when the law was first crafted
that this situation would arise? Fortunately, when the
consequences of your actions were discovered, you
voted reasonably to make an exception that would allow
your fellow legislators to take the medical step
necessary to save his life.
It's very easy to ignore unintended consequences when
there is no personal example and the people affected
are invisible. Rather than some unknown woman, let me
use the recently revealed pregnancy of Governor Palin
as an example. If you don't already know, pregnancy
later in a woman's life carries more risk of
complications. What if Governor Palin were faced with
some unforeseen crisis during the latter months of her
pregnancy? Who of you here would have the right to
decide that her doctors could not save her life? Would
you really limit her physician's options because you
want to score political points in the abortion debate?
I also refer to the corruption scandal. I'm fairly
certain that all of the indicted legislators, the
indicted chiefs of staff, and those still facing
charges campaigned for their office on an anti-
abortion platform. I do not believe I would entrust my
medical care to any of them, or any of the ones who
may yet be indicted.
Before this current session started, I attended a
constituent town hall meeting. I heard testimony about
low income health clinics closing, about unaffordable
daycare costs, unaffordable healthcare costs, the
plights of parents with incarcerated children-in
essence a very long list of human needs. Do we really
need to spend our valuable court and police resources
arresting doctors for trying to save their patients'
lives? Do we have room in jail for them? I was fairly
certain that we have a shortage of doctors in this
state. Please let the federal government spend their
resources on enforcement of this thoughtless law.
In conclusion, just a couple of days ago Governor
Palin made the comment that if anyone thought she
couldn't handle being governor and have a baby, why
that was the thinking of a Neanderthal. I could not
agree with her more. Women have had a long hard fight
and we have proven over and over that we are more than
capable of determining our own destinies. This
legislation is the exact antithesis of a woman's
rights. It is an exact example of Neanderthal
thinking.
2:31:46 PM
IRENE BECKER, Director, Pregnancy Care Center in Homer, said she
has served in her present position for 11 years and has been
very involved in the abortion issue. She opined that one
positive thing this bill will do is to seal up a lot of the
current loopholes that were created by Roe v. Wade. When that
bill was passed in 1973, there were no parameters with respect
to "who could perform the abortions, who could do it, at what
age, viability of the fetus." At the time none of that was an
issue, but she believes that over the years a lot of the bills
that have come up, have been for housekeeping and getting things
in better order. Also, technology has advanced to actually
realize what happens in the womb. She continued to say:
Women were told to believe [that] at three months or
so that it was just a blob and you basically were
scrapping out…just an excess of things that were
there. We know now-primarily the partial-birth
abortion is done at the fifth month-the baby's in a
waking and sleeping pattern, he feels pain, the heart
had started beating at 21 days. They know too that the
baby's in a dream situation because there's rapid eye
movement, marrow has turned to bone, strong kicks,
aware of outside noises. Five-month-old babies…can
live outside the womb, they are a viable entity, and I
think [in] all of this we're not really considering
this baby. …
You can tell pretty much by any ultrasound how far
along the fetus is developed, how long the gestation
period has been. This bill closes in the gap. It makes
the baby important; it brings value to that life. With
a partial-birth abortion the baby is turned around,
taken out feet first, a sharp object is run into its
neck, the brains are sucked out and then the rest of
the baby is delivered and it's a gristly, gristly
practice that, as an American and as a human being, I
find extremely, extremely disturbing. So, we as Alaska
need to take a stand for this kind of a life, get in
step with the things that nationwide statistically,
people are very much against this type of an abortion.
We need to become part of that. …
Maybe I'm here just to speak up for the little ones
because I know that they can live outside the womb and
I also know that there's a lot of people that would
love to have these babies.
2:35:05 PM
CHAIR FRENCH asked the sponsor if he'd like to respond to any of
the testimony that was heard.
SENATOR OLSON clarified that the intent of this bill is to
mirror the federal law. Currently 36 states are regulating the
procedures that are done within their borders. Alaska is in the
minority of states that does not have such regulation. He also
clarified that AS 18.16.050(a) and (b) are unaffected by this
legislation. "All this does is modify [subsection] (c) so you
have the protection to save the life of a mother under [existing
subsection] (a)."
CHAIR FRENCH found that no one else wished to testify. He closed
public testimony and set SB 264 aside.
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