Legislature(1997 - 1998)
03/07/1997 01:08 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 65 - PARTIAL-BIRTH ABORTIONS Number 1404 CHAIRMAN GREEN indicated that the committee would consider HB 65, "An Act relating to partial-birth abortions." He noted that this was a procedure to abort a child before it clears the birth canal by the insertion of a sharp instrument, probably scissors into the back of a skull. He added that version B of this bill, dated 3/4/97, was before the committee. Number 1451 REPRESENTATIVE PETE KOTT came forward to testify on HB 65 as sponsor to this legislation. He stated that this legislation was a fairly simple measure and it does one thing. It prohibits what has been termed "partial-birth abortions" from occurring in Alaska. Partial-birth abortions involve a series of steps which are horrible, unconscionable and smacks in the face of hideousness. He stated that these techniques are gruesome and he noted that he had provided written documentation of the same, along with the sponsor statement. He stated that the technique enumerated in the sponsor statement was obtained from a Dr. Martin Haskell enumerated in a 1992 paper provided to the National Abortion Federation. This bill does not in any way restrict abortions from occurring in Alaska but rather a type of procedure that is used. REPRESENTATIVE KOTT stated that partial-birth abortions occur anywhere from nineteen weeks through to full term. "Essentially one relies on the cervical entrapment of the head to help keep the baby in place while the insertion is made to complete the process." He stated that the committee has before it a committee substitute that he felt captured the intent of the legislature as it relates to this particular measure. He felt that enough substantiating documentation provided by members of the medical community that suggest that this procedure is not a necessity to save the life of a mother. "There will also be some discussion on whether or not the procedure is performed in an abundance of the cases. I think that you will hear and bear out some facts that this is not a procedure that is rarely used. In fact, just this past week, with I believe with the reintroduction of a bill in Congress, a Ron Fitzsimmons, the Executive Director for the National Coalition of Abortion Providers, said that he mislead the public because he feared the truth would damage the abortion rights cause. This was in relationship to the number of times this procedure was used and the reasons for using it." Number 1745 GEORGE DOZIER, Aide to Representative Kott, came forward to testify on HB 65. He read a statement into the record. "At the outset, I would like to discuss, just briefly, federal constitutional requirements in the abortion context. As everyone knows, the seminal case addressing the constitutionality of abortion in the United States is Roe v. Wade, 410 US 113. Generally, the Court held as follows: "1. The fourteenth amendment includes a right to privacy, and this right is broad enough to include the right to obtain an abortion. Roe, 410 US, at 177. "2. This right is not absolute and may be limited by states' legitimate interest in safeguarding women's health, maintaining proper medical standards, and protecting potential human life. Roe, 410 US, at 177. "3. Applying these principles, the Court arrived at the following conclusions. During the first trimester, the state, essentially, may not interfere in a woman's decision to obtain an abortion. Roe, 410 US, at 183. From the end of the first trimester, the state may regulate abortion to safeguard the health of the mother. From the point of viability, the state may proscribe abortions, except where necessary to preserve the life and health of the mother. Roe, 410 US, at 183. "4. It may be noted that the Roe Court specifically and expressly rejected an argument that a pregnant woman is '...entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she chooses.' Roe, 410 US, at 177. "The most recent Supreme Court opinion discussing abortion is Planned Parenthood v. Casey, which can be found at 505 U.S. 833; 120 L Ed 2d 674 (1992). In Casey, the Court found that states have a substantial interest in potential human life, and that this extends throughout the pregnancy. Casey, 120 L Ed 2d, at 714. Indeed, this interest is characterized as 'profound'. Casey, 120 L. Ed 2d, at 715. The Court found that its opinions subsequent to Roe had undervalued this interest of states in potential human life, 120 L Ed 2d, at 711, and as a consequence, it rejected the rigid trimester system first articulated in Roe. Casey, 120 L Ed 2d, at 710. Instead, it divided pregnancies into two periods--- pre-viability and viability. "According to the Casey Court, during that first period, in which the baby is not viable, states may not place an 'undue burden' on a woman's right to decide whether to terminate a pregnancy. It defined 'undue burden' as regulations that have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. 120 L Ed 2d, at 715. "During the second period, in which the baby is viable, the constitutional standard is different. As stated by the court, in quoting from Roe: '...subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.' Casey, 120 L Ed 2d, at 716. "To summarize: First, the state has a substantial interest in potential human life which extends throughout the pregnancy. Second, prior to viability, the state can not place an undue burden on the right to pregnancy, which means placing a substantial obstacle in the path of a woman seeking an abortion. Third, after viability, the state may regulate abortion, and even prohibit them, except where necessary to protect the life or health of the mother. "Since partial birth-abortions span the last part of the pre- viability stage and into the viability stage, HB 65 is specifically designed to cover both stages. Hence, it must be analyzed with respect to both standards. HB 65 more than meets these standards. "First, with respect to pre-viability abortions, HB 65 does not place an undue burden on the right to chose an abortion. That is to say, it does not place a substantial obstacle, either by intent or in effect, in the path of a woman seeking an abortion. After all, it does not proscribe abortions per se. It merely makes one particular form of abortion, and a particularly egregious form at that, illegal. All other forms of abortion remain open to pregnant women. The fact that this does not place a substantial obstacle in the path of women seeking abortion is clear. The Director of Public Health in Alaska testifying before the State Affairs Committee a couple of weeks ago testified that partial-birth abortions, as defined by the bill, have not been performed in Alaska. Thus, the question must be asked: Does HB 65, which proscribes a procedure which, thus far, is not done in Alaska, place a substantial obstacle in the path of a woman seeking an abortion? The answer, by definition, is clearly no. The procedure is not available anyway. "In that regard, can it really be a substantial obstacle to require abortionists to conform to the standards of abortion practice already present and accepted by practitioners in Alaska. That, to my mind, is no obstacle at all, let alone a substantial one. "In short, all options presently available to women to obtain abortions remain unaffected. There is no obstacle, and thus, the first standard---that which applies to pre-viability stage---is clearly satisfied. "The second standard, which applies to viable babies, is also satisfied. As I previously indicated, during the period of viability, the Supreme Court recognizes that the state may regulate or even proscribe abortions, except where necessary to preserve the life or health of the mother. HB 65 does not ban abortions during this period; it merely bans a particular procedure. Thus, it is more of a regulation of abortion than a proscription. And, the state is free to regulate, except where necessary to preserve the life and health of the mother. HB 65 contains an express exception applicable to the life of the mother. It does not mention health. However, it does not need to expressly mention health for the following reasons: "First, all forms of abortion present in Alaska remain in effect. If the mother's health requires an abortion, she continues to have recourse to those procedures. Her health is protected. "Second, even when partial-birth abortions become available in Alaska, their ban would not adversely impact maternal health. The Committee was provided with voluminous material clearly establishing that fact. For instance, as Dr. Pamela Smith, who is the Director of Medical Education, Department of Obstetrics and Gynecology at Mt. Sinai Hospital in Chicago, testified before the US Senate: 'There are absolutely no obstetrical situations encountered in this country which require a partially delivered human fetus to be destroyed to preserve the life or health of the mother'. Similarly, Dr. James Jones, who is chairman of the Department of Obstetrics and Gynecology at the New York Medical College, stated, regarding partial-birth abortions, that he 'can't imagine that being an indicated procedure for the saving of a life or well-being of the mother.' Although the America Medical Association (AMA) has remained neutral on the issue, its Legislative Council voted unanimously to recommend that the AMA endorse the federal partial-birth ban. In so doing, it stated that the procedure is basically repulsive and is not a recognized medical technique. Again, the former Surgeon General of the United States, Dr. C. Everett Koop stated: '...In no way can I twist my mind to see that the late-term abortion as described---you know, partial-birth, and then destruction of the unborn child before the head is born---is a medical necessity for the mother.' Similarly, Dr. Warren Hern, who wrote the Horn Book on late term abortions, stated in an article in American Medical News: 'You really can't defend it... I would dispute any statement that this is the safest procedure to use.' He stated further: 'You have to be concerned about causing amniotic fluid embolism or placental abruption if you do that.' "I won't bore you with more opinions. There are plenty in the materials that have been provided. The point is that partial-birth abortions are not necessary for the health of the mother. "In summary, the Legislature can conclude that partial-birth abortions are not necessary to preserve the health of the mother, and indeed may even be inimical to the health of the mother. No express exception is needed, since all other procedures remain available. "Thus, both the pre-viability and the post-viability standards required by Casey are satisfied. That being the case, all that is required is that there be some rational basis for HB 65. And, there are several permissible state interests that are advanced by HB 65. Indeed, the State has compelling interests in preventing such procedures. Let me suggest but a few. "First, delivering a baby just to the very cusp of constitutional personhood and then killing it, just inches away from being completely born, is cruel. Indeed, Dr. Isada, who spoke against HB 65 before the House State Affairs Committee, described one aspect of partial-birth abortion---sticking scissors into the baby's skull---as gruesome. The state has a very strong interest in protecting human life from such cruel and gruesome actions. If the state can prevent cruelty to animals, it certainly can do the same thing for human life. TAPE 97-33, SIDE A Number 000 "Second, partially delivering a baby ---or, I should say almost entirely delivering a baby---and then killing it tends to mix the roles of obstetrician and abortionist. The former are healers, and they are perceived as such by the general public. Abortionists, in the overwhelming number of cases, ---for instance I refer you to Dr. Haskill's statement that 80% of his partial-birth abortions are elective---are not healers. They perform some other function. By mixing these two opposing roles, there is great danger that public confidence in the medical profession will be undermined. "Third, bringing a baby right to the very edge of complete birth and then sucking its brains out is inherently disrespectful of human dignity. "Fourth, the state has a legitimate and compelling interest in drawing a clear distinction between legal abortion and infanticide. Partial-birth abortions blur that distinction. Furthermore, it may be noted that the difference between a viable baby who has just emerged from the womb and a viable baby who is almost out of the womb is negligible. But for a few inches they are the same. To permit the killing of one and forbid the killing of the other is ludicrous and will breed disrespect for the law. So fine a distinction, carrying such dire consequences, can not but be scoffed at by Alaska's people. "Hence, in my opinion, partial-birth abortions are fully constitutional under the guidelines established by the United States Supreme Court. I would like to turn now to some of the specific arguments that have been made thus far against the constitutionality of HB 65. "First, it has been argued that HB 65 creates an undue burden because partial-birth abortions are the safest alternative. This, of course, is an assertion of fact, and the alleged fact is extremely dubious. This Committee has been provided with an abundance of materials indicating that partial-birth abortions are not necessary for maternal health and further indicating that partial-birth abortions, in themselves, present a risk to maternal health. "It also has been argued that the Supreme Court, in Planned Parenthood v. Danforth, held unconstitutional an abortion statute which proscribes the use saline amniocentesis, in part because such a prohibition would force women to use more dangerous methods. On the surface, this argument has a certain appeal. After all, HB 65, like Danforth, involves the proscription of a defined abortion procedure. However, Danforth is clearly distinguishable, on at least three grounds. First, HB 65, unlike the Danforth statute, does not force women to use procedures which are less safe than partial-birth abortions. Second, the Danforth court emphasized that the proscribed method was the most prevalent available, and that another safe method was not yet available. Here, with HB 65, the proscribed method is not yet used in Alaska and other, safe, methods are available. Third, Danforth predates Casey and thus its analysis focused on whether the statute advanced maternal health. This was during the period in which states' interest in protecting potential human life was undervalued. Casey changed all of that. Now, unlike when Danforth was decided, it is recognized that the state's interest in human life may be asserted throughout pregnancy. HB 65 does just that, and it may be expected that the right to assert that interest would be weighed in any constitutional challenge. Danforth, quite simply, is distinguishable. "In the past it also has been argued that the only Court to review a ban similar to HB 65 invalidated it, because for some women the prohibited procedure would be safer than other available techniques. The case is Women's Medical Professional Corp v. Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995). The Court in that case, within the context of deciding whether to issue a preliminary injunction and prior to a full trial, held that D&X was safer than other methods; and, because D&X was more available than induction methods, which require hospitalization, a proscription on D&X was a substantial burden. The Court in that case was certainly entitled to make its findings. This Committee has an equal right to make findings of fact, and ample evidence has been presented to it to base a contrary finding concerning safety. Moreover, this Committee reasonably can not find, given the previous testimony of the Public Health Director, that partial-birth abortions are more prevalent than any other methods in Alaska. In Alaska, partial- birth abortions, thus far, have not been performed. Our state, fortunately, seems to lag behind the rest of the United States in adopting undesirable conduct. "It also has been argued that the definition of partial-birth abortions is overbroad because it could encompass procedures other than partial-birth abortions. It is true that statutes which are so broad as to sweep within their coverage not only properly proscribed acts but also constitutionally protected acts are unconstitutional. The definition employed in HB 65, however, is not of that nature. It does not overlap other alternative methods. They are clearly distinct and clearly outside the coverage of HB 65. It is also argued that the definition is vague. Vague statutes, particularly those that impose criminal liabilities, are unconstitutional. However, HB 65's definition is not vague. It is clear and precise. It establishes definitively what is proscribed. Persons of common intelligence easily can understand what is prohibited and thus there will not be a chilling effect. Proponents of this argument may have in mind the definition used in the statute examined by the court in Voinovich. There, the court-- -and I think quite rightly--- concluded that there was an overlap and that the statute was vague. But, the definition of D&X employed in that case does not in the slightest resemble HB 65's definition. I can quote the Ohio definition for you. 'The termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. "Dilation and extraction procedure" does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion.' The court found that this definition overlaps normal D&E procedure (because both may involve inserting a suction device into the skull) and because D&E is not excluded as suction curettage or suction aspiration. Further, the Voinovich Court noted that in analyzing statutes for vagueness, the absence of a mens rea requirement is somewhat persuasive. In fact, it relied on this concept in finding another portion of the Ohio law unconstitutionally vague. In HB 65, it may be noted that there is an express mens rea. "Concerns regarding vagueness are misplaced. This bill does not resemble, in any respect, the statute considered by the Voinovich court. It is clear and precise, and it does not overlap any other abortion procedure. It is such as to apprise people of common intelligence what is being prohibited, and there is no reason to believe that it will have a chilling effect on constitutionally protected acts. Finally, since it is clear, there is no danger of arbitrary or discriminatory enforcement. "Finally, it is argued that the privacy clause of the Alaska Constitution would be violated by HB 65. The Alaska Supreme Court has not yet decided an abortion case using this constitutional provision. What we do know is that, although the right is broader than the privacy right found by the US Supreme Court in the US Constitution, it is not absolute. And, certainly, the right to privacy is not violated when an alleged infringement is justified by a legitimate and compelling governmental interest. "Although the Alaska Constitution's right of privacy is deemed to be broader than that of the United States Constitution, it does not reach everywhere and cover all things. Essentially there is a two step analysis that is required. First, it must be determined if the conduct in question is within the scope of the amendment. Then, and only then, it must be determined if the alleged infringement bears a fair and substantial relation to a compelling governmental interest. "First, does partial-birth abortions fall within the scope of the amendment? The Alaska Supreme Court has determined that this issue is resolved by answering two questions: (1) Does the person have an actual (that is, subjective) expectation of privacy concerning the conduct? (2) Is the expectation one that society is prepared to recognize as reasonable? If both questions are answered in the affirmative, the conduct falls within the scope of the privacy amendment. Hilbers v. Muni. of Anchorage, 611 P. 2d 31 (1980). "In Alaska, as with the rest of the United States over the last quarter century, many people have been conditioned to perceive abortion as part of the culture. Indeed, the Casey Court made much of that fact in discussing whether or not it would be appropriate to abandon the central tenants of Roe. Given this state of affairs, it would not surprise me that some would have a subjective expectation a privacy right to engage in even this gruesome procedure. But, is subjective expectation something that we as a society are prepared to recognize as reasonable? I think not. In my opinion, for the reasons I have discussed at length in this testimony, society is not even close to recognizing as reasonable any such assertion of a privacy right to obtain a partial-birth abortion. Hence, this procedure falls outside the scope of the amendment. "Even assuming, arguendo, that partial-birth abortions are within the scope of Alaska's constitutional right to privacy, society's hands are not tied. As previously stated, the right is not absolute. An alleged 'infringement' is permissible if it bears a fair and substantial relationship to a compelling governmental interest. "I respectfully submit to you that Alaska has a compelling state interest in protecting babies, who are almost born, who are mostly outside the bodies of their mothers, from having their brains sucked out. I also submit that the government has a compelling interest in protecting public confidence in the medical profession by not blurring the roles of healer and abortionist. I also suggest to you that the government has a compelling interest in protecting the almost born from this cruel, gruesome, and undignified death. Accordingly, HB 65 does not run afoul Alaska's right to privacy. "In conclusion, HB 65 will pass constitutional muster." Number 960 BACHAR BEN'ISRAEL testified via teleconference from Moose Creek in support of HB 65. She stated that she was confused about when this type of abortion would be conducted in regards to how developed the fetus was. She said she was appalled to understand that this procedure was conducted on full term babies after delivery, that the procedure involved the suctioning of brain tissue and stated that this was beyond her imagination. Unless a mother's life is in danger this procedure should not be allowed and added that it reminded her of the undesirable during the Nazi Holocaust. Number 1101 AMY SKILBRED, Alaska Civil Liberties Union, came forward to testify in opposition to HB 65. She referred to her testimony entitled, "State Interference In Private Medical Decisions." She noted that some of those present have children and that she has two children. She spoke to a baby's pre-term development by stages and the fact that parents look forward to birthing this child, along with all the anticipation involved, fixing up the nursery, etc. She asked those present to imagine going in for a routine prenatal visit and finding out that the unborn child they treasure will not live long after it is born, if it will survive this long. With this tragic news barely understood it is then advised with the mother's condition, age or medical history that terminating the pregnancy is recommended. What if then they learn that the medical procedure, with possibly the lowest risk in that mother's specific medical circumstances, is not an option, not an option because it is against the law. Imagine how the mother and family will feel at a moment like this, the moment that a law not based on science but on politics prohibits an individual and their doctor from using the best medical procedure under the circumstance. This moment is a dangerous moment for our democracy. MS. SKILBRED continued that all citizens of this country and state have a constitutional right to privacy. It is hard to think of privacy more profound than a patient's right to choose his or her course of treatment in a medical emergency. HB 65 would violate this most fundamental right by replacing a doctor's medical advise and a patient's decision whether or not to follow that advise with politically motivated statutes. A law substituting religious beliefs for science, a law penned and promoted by those who would place compassion for a child that cannot live over concern for a mother's health. Surely those whose compassion lies with the unborn can understand the suffering a mother feels when she is loosing a child she wanted and loved, or a father for that matter. Compounding this trauma is the fear of imminent danger to a woman's own body. This is a perilous situation for women, when they are loosing a child that they carry. This is an excruciating situation, physically and emotionally. MS. SKILBRED noted that to further complicate this situation with some arbitrary and vague statutory prohibition is simply unconscionable. To deny appropriate medical treatment in this situation is a violation of the mother's rights, her rights as an individual, as a patient and as an American. Our courts have refused to allow such a profound violation of individual privacy rights. Neither will this violation of individual rights stand. Indeed, very similar attempts have failed. Nevertheless, she urged the committee at this point to stop this dangerous interference with medical treatment before it moves one step closer to passage. MS. SKILBRED offered that one of the things people should consider is if this legislation was to pass and a suit is brought against a doctor for using such a procedure in Alaska she asked what happens to the patient's privacy rights then. When the state decides to prosecute a treating physician, if laws such as HB 65 allows state prosecution of a doctor performing a medical procedure, the patient and the patient's once confidential, medical record and medical history are destined to become exhibit one. How else will a court determine if a doctor prosecuted by the state under this bill before them was performing a procedure that was necessary. Number 1380 REPRESENTATIVE GREEN asked if the baby's head were to slip beyond the cervical control, is the doctor still entitled to drive the scissors into its skull. MS. SKILBRED stated that she was not a doctor and she thought the way in which the procedure has been publicized any normal person would think it gruesome. They are not taking about healthy Gerber Babies who are just about to be delivered that are eight and 1/2 months along even if the birth mother did not want it. Number 1468 CHAIRMAN GREEN stated that he thought it had to do with the mother's health rather than the baby. He understood the procedure that as long as the baby's head is still cervically preventing it from being born, if in fact "that wasn't that type, for example, I've talked to some people who had their babies on the way to the hospital. They delivered so quickly that you might not be able to stop the baby's birth even though you've made a breach condition." If the baby is born, this situation has gone beyond the need to help the mother. He asked what happens once the baby is viable. MS. SKILBRED responded that these procedures are usually induced. This isn't a situation where someone is on their way to have a baby, but they are in the hands of a physician before the process is induced. She can't respond to some of these questions in part as opposed to what the sponsor has stated, the bill's wording is vague. If the process is really D&X's, then it's D&X's, if it's really D&E's, then it's D&E's. It isn't clear from this bill what the process is. Number 1526 REPRESENTATIVE PORTER stated that any malpractice case is not a patient's privacy subject to being violated. MS. SKILBRED stated that she believed it could be. Number 1540 REPRESENTATIVE BERKOWITZ stated that in a civil situation, when a patient brings suit against a doctor and puts at issue the treatment, the doctor/patient confidentiality is breached. This is a circumstance where essentially the state is prosecuting, the state is charging a doctor. There is not necessarily collusion between the state and the woman who has had the abortion. In which case, the doctor wouldn't be entitled, because of confidentiality, to prepare their case. MS. SKILBRED added that the woman may not want to participate in a case like that. Number 1584 REPRESENTATIVE CROFT noted that in previous testimony it was stated that the exception was to protect the life and the health of the mother. This law just says life. He asked in her opinion and the organization she represents, is it constitutional if it doesn't say "or health." MS. SKILBRED responded that she could provide him with a written response at a later time. She said that this might address one of the issues, it might not address all the constitutional issues that this bill might have. Number 1650 CHAIRMAN GREEN asked that if this legislation is intended to protect the life of the mother, it was his understanding, that breach condition babies are a very high risk birth as compared to the normal, head first birth. It seemed to him that when a doctor goes in and manipulates the baby from the normal head down position into a feet down position, that doctor is creating a breach condition which increases the risk of damage, he thought that they were working in the wrong direction, literally. They are incurring a higher risk by inverting the baby. It seemed to him that this was not unlike trying to take a Christmas tree out the door the wrong way. He didn't know how this could be considered in the best interest of the mother. MS. SKILBRED responded that they could either decide that doctors based on their knowledge, training and abilities are not the people who should decide what is in the best interest of their patient, but a legislative body should decide what's in the best interest of a woman or they could decide that doctors who have the information about a woman's condition, her age, her health, her medical background, are the ones who are best suited to decide what procedure should be used. She respectfully suggested that they should leave it to the doctors to decide. There are numerous law suits against doctors for not doing the right thing, but she didn't think Alaska should legislate what the procedures are that doctors should use. Number 1700 CHAIRMAN GREEN asked if she could think of any other type of manipulation that would be preferable to invert the baby for delivery, rather than to try... MS. SKILBRED stated that after having vaginally delivered two children she said it would be an uncomfortable situation to do anything but the way children should be born. She didn't know that someone would be better off having a caesarean birth to pull out what might be a viable but soon to die baby. She thought they should look at the mother as well and to let her, along with her physician make a decision. Number 1750 CHAIRMAN GREEN stated that the reason he asked was that one of his daughters has two children, the first one, a girl, was five and 1/2 pounds. Because she was in a breach position and unable to be turned around, they took the baby caesarean because of the risk of trying to deliver in the wrong direction. Her physician felt that even a baby nearly half as big in the wrong direction was a higher risk than a caesarean section. It seemed incongruous to him that a doctor would reverse a normal situation in the interest of protecting the mother. MS. SKILBRED again stated that she wasn't a physician, but that a doctor in this situation might decide that this is in the best interest of the mother. She noted that a caesarean section is major surgery. Number 1847 DR. PETER NAKAMURA, Director, Division of Public Health, Department of Health and Social Services came forward to testify on HB 65. He stated that the primary problem with the bill is that they're legislating medical practice, a clinical practice. They're not deciding here whether an abortion should be done or not done. He thought that the bill says they're at the point where a determination is made and an abortion will take place, now what procedure should be used. This is a decision which should be left between a physician and their patient. This is not something that should be legislated. Each situation is different. He outlined these for the committee. DR. NAKAMURA stated that if an abortion is needed to be performed then there are all types of patients. There may be a patient who has an underlying medical problem like a heart condition and perhaps this is the reason an abortion had to take place since the stress of delivery would have been too great. The patient might have leukemia or another terminal illness. It would be necessary to abort because of chemotherapy treatments. Once a decision is made then the doctor needs to decide which is the safest procedure for this child. The most difficult and complicated procedure is to allow a pregnancy to go to term. There are a large number of complications in this instance. If an abortion is decided upon a procedure needs to be established. Saline injections have been used to induce labor, but is traumatic on the patient, takes a longer time and has other complications. He noted these complications. DR. NAKAMURA noted that another option could be a C-Section but this is major surgery where the patient has to be anesthetized, hospitalized and an operation is performed to remove the fetus. There are other ways an abortion can be induced, such as with chemicals, or through the use of hormones. Quite often hormones don't work because in the early stages of pregnancy, the uterus doesn't respond which means that the patient is left in a hospital or in an uncomfortable situation for a longer duration of time until another choice for a procedure is taken. It takes a large amount of medication to induce labor at this early stage, prior to the viability of the fetus and quite frequently it fails. The doctor is best able to determine when this viability is. The definition under the previous statutes was 150 days. DR. NAKAMURA addressed the options of either D&X or D&E. Both of these procedures are somewhat similar in that the doctor dilates the cervix, then the non-viable fetus is extracted. This is a pretty traumatic procedure. The D&X procedure is one that was designed to be more physiologically acceptable to many patients because sometimes the mother would still like to hold the fetus. If the fetus doesn't have a genetic abnormality it would still look like a baby. It was for this purpose that this procedure was designed. DR. NAKAMURA paraphrased a statement to respond to which was, "Partial-birth abortions are cruel and gruesome." He stated that it's also cruel and gruesome to subject the mother to an additional stress that she doesn't have to be exposed to, such as other procedures or for instance in the case of a child with significant genetic defects. If it is known that the fetus will not survive and the mother is required to go to full term and deliver. This would be pretty cruel and gruesome in itself. All abortions are kind of gruesome but there's a purpose for them to take place, sometimes it's psychological and sometimes it's physical. DR. NAKAMURA again referred to an argument against this procedure and stated that if they look at the fact that partial-birth abortions as inherently disrespectful of the dignity accorded human life, he said he wasn't sure how to respond to that one. He thought in this case they're talking about whether an abortion should be done or not be done. As stated previously, the comparable procedures can actually be more gruesome than a D&X in itself. He assumed that the bill relates to D&X because he's heard so often the description of a needle stuck into the back of the brain and the contents aspirated. Number 2163 CHAIRMAN GREEN again asked if this procedure was ultimately for the protection of the mother. DR. NAKAMURA responded that yes, this procedure was for the protection of the mother. Number 2238 CHAIRMAN GREEN asked if this could happen in the case of a normal baby. DR. NAKAMURA noted that this wouldn't be the case if it's going to be called an abortion. Once the baby is viable this procedure would not be undertaken unless it's to save the life of the mother. He said this decision would be made between the physician and the mother. He couldn't imagine a situation where this procedure would be used unless it happened to be an instance of a hydro-cephalic infant and to preserve the health and the future ability of this mother to have babies. Then this procedure might be used. CHAIRMAN GREEN noted his concern that if this is going to be a demise of the baby to save the mother's life, he asked why the baby would have to be aborted if it's healthy, it sounds like it would still fit this category, but if it does have to be killed, to be killed in this manner, the doctor is saying that unless it's a hydro-cephalic there are other ways that might be more traumatic to the mother. DR. NAKAMURA stated that if the mother is pregnant and the infant is viable, the only time that this baby would be aborted would be to save the life of the mother or perhaps prevent a significant, serious, harmful affect on her health. CHAIRMAN GREEN added that the first consideration might be whether the baby is viable to save both.' Number 2306 DR. NAKAMURA responded yes, he would assume so. A caesarean could be a choice. He went on to paraphrase the statement that partial- birth abortion tends to blur the distinction between constitutional persons and non-persons and between infanticide and legal abortions. He stated that he didn't know what is meant by this statement. He also quoted, "A partial-birth abortion, because of their gruesome nature and because they incorporate two separate roles of physicians and the role of the healer and the role of the abortion, tend to undermine the public confidence in the medical profession." He noted that the reason the physicians are doing these abortions is that in the past, prior to the time that they were made legal, they were done by others. When they were done by others there was a lot of unfortunate outcomes. He noted a hospital in Texas that only administered to woman with complications from illegal abortions. Number 2412 REPRESENTATIVE PORTER asked in regards to the distinction between a D&E and a D&X, on the second page of the bill, line 13, he said he didn't have any problem with this language and asked if it would eliminate a D&E. DR. NAKAMURA responded that it would eliminate almost everything. He stated that he had never done an abortion. He needed to ask other physicians what this language meant. To them it means that this virtually could eliminate all abortions because there is no way they can assure that a baby will not be delivered, even during a suction aspiration of a fetus and not be alive. In reality it could eliminate all abortions. REPRESENTATIVE CROFT stated that he'd like to get more to the point of these procedures being done either pre-viable or viable for a malformed baby or to protect the life of a healthy mother, but he stated that if they would have the doctor return, these questions could wait. TAPE 97-33, SIDE B Number 000 DEBRA JOSLIN, Chair, District 35, Republican Party of Alaska, testified next via teleconference from Delta Junction. She shared a story of a woman who gave birth to a child with multiple impairments. After many surgeries this child is alive and well, lives in Alaska and is a joy to his mother. If this woman was asked if this child should not have lived, the answer would have been no. When this child was born there was no such thing as legalized abortion, or partial-birth abortions. If there had been that option, if the doctors has presented this option, the woman might have consented to this procedure. MS. JOSLIN referred to an article in the "Wall Street Journal," titled, "Partial-Birth Abortion is Bad Medicine," written by several obstetric-gynecologists. This article contains some of the truths about partial-birth abortions. She said she would send this article to the committee. Number 0043 BARBARA RAWALT, Financial Chair, District 35, Republican Party of Alaska, testified next via teleconference from Delta Junction. She added that she was also testifying as a parent and as a grandparent. She urged passage of HB 65. She referred to testimony by Mr. Fitzsimmons, the oft quoted pro-choice spokesman, who supported both the variety and the necessity of this procedure and recently admitted that his previous statements were a lie. He admitted that this procedure is not rare, it affects not just a few hundred woman as previously stated, but 300,000 to 500,000 women per year in the United States who have this procedure done. As to the necessity, he stated that this procedure was not limited to hopelessly deformed babies as was previously stated, but that most of these procedures were performed on an elective basis, on healthy babies. MS. RAWALT urged the committee to vote yes on HB 65 in order to stop this barbarous procedure. Number 0191 SHARYLEE ZACHARY announced that she had submitted written testimony to the committee. She referred to Section 1, (6) and (7), which states how this procedure undermines the public confidence in the medical profession. She believed that a majority of medical physicians and health care providers are honest, upright and have the sincere desire to help and heal people. However, the medical profession has "cut it's own throat" in the area of "credibility." It has allowed many physicians to perform unjustified abortions and then look the other way when those same doctors falsify the patient's records with statements about it being a medical necessity, when in fact the abortion was done as an elective procedure. In other words this is a pre-arranged convenience for the mother and a financial benefit for the doctor and/or the clinic. MS. ZACHARY said, in the last year or two, several medical professionals have given national testimony that there are just a few cases of partial-birth abortions which have been done to save the lives of the mother. The media has gone overboard in emphasizing that testimony and unfortunately many people have believed those doctors. The media and certain politicians have also largely ignored those people providing testimony regarding the thousands of unnecessary partial-birth abortions. MS. ZACHARY said, in the past few weeks, a prominent physician has brought forth testimony that he lied. She questioned how we could trust doctors and other health care professionals, who know this to be true and yet keep quiet. If this is their ethic, in this area, what is to keep them from falsifying other areas of medical care for the sake of convenience and financial gain. Number 0289 KATHLEEN HOFFMAN testified next via teleconference from Kenai. She appreciated all the work the committee had done on HB 65 as we surely want to rid our state of this partial-birth abortion. She referred to an infant that she worked with when she was in nurse's training. She is in favor of HB 65. Number 0358 VIRGINIA PHILLIPS, testified as a Spokesperson for American Indians and Alaska Natives, National Right to Life. She stated that she is the Chair, District 2, Republican Party of Alaska testified next via teleconference from Sitka. She was appalled what this procedure did to the woman. It is ridiculous to say that it is necessary for the life or health of the mother, there are other easier things to do to get rid of the baby. This procedure needs to be outlawed. If people attempted to do this procedure on a rat, animal rights activists would say it was inhumane. She asked for humane treatment of women and to stop them from being victimized by the partial-birth abortion. TERESA LUNDY, Medical Transcriptionist, testified next via teleconference from Sitka. She is speaking for the (Indisc.) community in Sitka because a lot of people couldn't attend the meeting today. She questioned the ability of people from the medical community to defend and endorse this abortion procedure. She referred to earlier testimony on the D & X procedure and testimony that the D & E procedure had to do with taking the non- viable infant and aborting the child. She reminded the witness that he is misinformed; the D & E procedure is a gruesome dismemberment type of abortion procedure. After a period of time the baby tissue becomes toughened as the baby develops. She referred to written testimony on the D & X extraction method by Dr. Martin Haskell. The doctor invented this D & X procedure because it was an alternative to dismemberment. MS. LUNDY asked the committee to endorse HB 65. It is imperative that the Alaska Legislature set the standard to not allow this abortion procedure in this state. She was concerned that there was no ethical concern regarding abortion. Eliminating partial-birth abortions does not interfere with reproductive rights or right to privacy concerns. She urged the committee to see that ethical standards were set in stone by passing HB 65. Number 0358 SALLY APOXIDAK testified next via teleconference from MatSu. She was appalled about today's testimony. She asked the committee to look at the bigger picture in terms of abortion. She was in favor of the contents of HB 65. Number 0612 ART HIPPLER, Executive Director, Alaska Right to Life, testified next via teleconference from MatSu. He referred to the testimony given by Mr. Dozier. His organization supports HB 65. He offered $500, out of his pocket, to the first person who provides unambiguous evidence of one single case where this procedure was medically necessary to save the life or the fertility of the mother. ERNIE LINE testified next via teleconference from MatSu. He said there have been no partial-birth abortion procedures performed in Alaska, according to Mr. Dozier. He assumed that the committee knew how many doctors in Alaska were qualified to perform this procedure. CHAIRMAN GREEN said he did not know. When he asked if this information was known by other members of the committee or witnesses, no one answered. MR. LINE completely agreed with the doctor who testified that legislators should not practice medicine. He asked the committee, before they pass HB 65 or SB 12, to consider the women who might need to abort these fetal anomalies or else to provide for them when they are infant anomalies. Number 0769 NIKKI SULLIVAN said she done post abortion counseling and provided education for women who have been through the abortion experience. She has had national training in Denver at the Post Abortion Counseling and Education Institute. She referred to testimony about the protection of the mother and the viability of the baby. These women suffer the same degree of trauma after the abortion as they experience during the abortion. She could not think of anything more traumatic than a partial-birth abortion. She is a proponent of informed consent, every woman has the right to know what is going on with her body and what an abortion consists of. Number 0884 KRISTIN HOCK informed the committee that she was eight and half months pregnant. She was not planning to terminate this pregnancy, but if she chose to, then she would have a legal right to do so in some states. If we propose partial-birth abortions for convicts, who are on death row, there would be an outcry saying it was cruel and inhumane treatment, it did not respect people and their dignity. She referred to the U.S. Constitution and urged the committee to value the right of protection of life and liberty by banning partial-birth abortions. Number 1009 TRICIA BONNEY, Nurse, said the whole purpose for partial-birth abortions is for the mother's health. She said the argument, regarding infant anomalies, is not viable in opposing HB 65. She said this procedure is not taught in medical schools, and questioned how it could be considered a necessary medical procedure. She felt this procedure was inhumane and referred to previous testimony against partial-birth abortions. She urged the committee to support HB 65. Number 1149 TOM GORDY agreed with the testimony given by Mr. Dozier and said more facts have come out this week about partial-birth abortions. People who support abortion will lie to keep things going. He was here to speak against this procedure; called partial-birth abortions by Congress or D & X, short for dilation and extractions, others have called it D & E, but medical literature does not have a name for it because it is not a recognized legitimate medical procedure. He said there are probably no doctors qualified to do this procedure as it is not a licensed procedure. MR. GORDY said he would like to call it partial-birth infanticide. He referred to a nurse who worked for Dr. Haskell, the doctor who invented this procedure and her experience of watching this procedure. This woman had originally supported abortion, but has changed her stance since seeing this procedure. This procedure is the murdering of a defenseless baby. MR. GORDY referred to a woman who had complications in her pregnancy in the sixth month, which is the time when Dr. Haskell says he performs most of these procedures. Labor was induced, the baby was treated in the neo-natal unit of the hospital and is alive today. He said a mother's life does not need to be threatened, the baby can be pulled out and survive outside of the mother through care and nurturing. MR. GORDY testified that 300 physicians, primarily obstetricians, united to oppose this procedure after President Clinton opposed the partial-birth abortion ban. They declared that it is never medically necessary. Dr. Haskell said that 80 percent of partial- birth abortions are elective. Dr. McMann, who has performed 2,000 partial-birth abortions, said 22 percent of the partial-birth abortions that he has performed for maternal indications were for depression, not for physical threats. MR. GORDY stated that this procedure is morally and ethically wrong. It is time to say, no, to this type of cruel procedure. He urged the committee to pass HB 65. Number 1475 DAVE ROGERS, Lobbyist, Alaska Woman's Lobby, said his organization opposes HB 65. They acknowledged that information and beliefs on this subject are contradictory, but wanted to present information to the committee. Partial-birth abortion is not a medical term, the procedure that is being addressed in HB 65 is call dilation and extraction of D & X, or sometimes called intact dilation and extraction. This procedure is used in the second and third trimesters. Doctors, who they have talked to, have said they have rarely met a patient who did not want, and was not completely bonded to their baby by the third trimester, nor have they known a health care provider who was not equally concerned about the health of the baby in the third trimester. This procedure is not a procedure to be undertaken lightly. Many involve wanted pregnancies that go tragically wrong when a woman's life or physical health is endangered and the fetus develops abnormalities which will cause them to die just before, during or just after life. Finally, this procedure is the safest available for some women. It carries lower risks of pervading the uterus, lacerating the cervix and the birth canal or causing maternal hemorrhage than certain alternative procedures. They were also told that D & X is less physically stressful and less toxic than other methods. MR. ROGERS said, if these findings are valid, this proper medical procedure, which may be the safest and most appropriate choice among several techniques in some cases, should not be the subject of a restrictive law which will take away from the physician's exercise of discretion and unduly burden a woman's right to chose, by arbitrarily and narrowly limiting her access to the procedures her doctors consider best for her. MR. ROGERS said, as is always the case in this arena, professional judgement and individual consideration must govern actions taken over the broad and complex spectrum of medical possibilities. Families and their physicians must be permitted to make the difficult decisions posed by the situation. He said HB 65 is unnecessary, can hurt Alaskan women and only serves to further polarize concerned Alaskans. For these reasons the Alaskan Women's Lobby strongly opposes HB 65. Number 1661 SID HEIDERSDORF suggested that the baby is turned around, to be delivered feet first, so that it will not scream before the procedure is completed. He referred to Mr. Fitzsimmons and a New York Times article which quoted him as saying that he lied, because telling the truth would damage the abortion rights cause. He felt Mr. Fitzsimmons told the truth because he realized he was defending the indefensible. He felt that people who are supporting partial- birth abortions were defending it because if you face the truth it will somehow collapse the abortion edifice. Abortion is supported by the Supreme Court decision and there is little that the state could do. This is a step the state could take to acknowledge that there is some kind of justifiable restrictions which could be placed on certain abortion procedures. MR. HEIDERSDORF asked the committee not to be influenced by arguments that the state should stay out of medical practice. He reminded the committee of the practices of doctors in Nazi Germany and said there are certain things that should be outlawed. In every profession there are certain amount of people that operate on the fringes; they must be controlled and guided by state laws. He did not care how many of these things were done and what they are done for. This procedure must simply not be allowed. If we want to maintain some type of claim to be civilized, we have to take some steps to control things that are happening which should clearly be condemned. Number 1917 REPRESENTATIVE BERKOWITZ referred to the analogy and felt it was an unfair comparison to make and was outside the bounds of this discussion. There is common ground, there should be debate about issues like this, but when you invoke issues that are hateful as that one, you destroy the possibility of dialogue. MR. HEIDERSDORF used this point to attempt to show that within his lifetime, he has seen this situation occur in a civilized society where we say this should have been stopped. Because people testified that the state should stay out of medical practice, he felt it was a legitimate thing to show his point of view that there are certain procedures that should be stopped. Number 2098 CHAIRMAN GREEN closed public testimony. REPRESENTATIVE PORTER said, it would be helpful in his understanding of this bill, if someone could explain the difference between a D & C, a D & E and a D & X. He referred to Section 2(c) and said he thought it described what he thought was a partial- birth abortion. If this was done with the intent to expose a portion of a live fetus outside the body of the mother and then terminate it, he thought it would eliminate the things that Dr. Nakamura was referring to. REPRESENTATIVE CROFT asked if it was the intention to have this bill apply to pre-viable fetuses. REPRESENTATIVE KOTT answered, yes. He felt this was clear in the opening statement. He added that some of the discussion handled by Dr. Nakamura was premature in addressing certain issues. REPRESENTATIVE KOTT said he wanted to make some comments on today's testimony and would try to respond to Representative Porter's concerns. Clearly, an abundance of information has been presented regarding this particular practice, whether it is used in the state or not. He had no evidence to show that it would be done in this state, this bill is a preventative measure. The definition of the procedure in Section 2(c) was extracted from the Congressional version of a similar bill. This definition is not something that he created, it is not a novel idea. This language was formed by a number of scholarly individuals in the medical community as well as the legal profession. He felt this definition was extremely clear about what it is that we are attempting to prohibit. REPRESENTATIVE KOTT referred to letters from Dr. Thompson and Dr. Ritter (Ph.) who are premier experts in the field of obstetrics. These doctors have not performed any abortions. He expressed concern with Dr. Nakamura's testimony as he has not..." TAPE 97-34, SIDE A Number 000 REPRESENTATIVE KOTT continued...he said it was just brought to his attention that the committee did not have Dr. Thompson's letter, but Dr. Lokiemp's (Ph.) and Dr. Ritter's (Ph.) letter, two premier experts in the field. He would also provide a letter from Dr. Riederer, a Juneau practitioner. All three of them have concluded that there are other procedures as safe as this particular measure. It alarms him when testimony commences with, "I spoke with an abortionist, a medical doctor." It gives more credence to the situation when you have actual testimony, in the written form or in person, where the person who articulates their own experience. He questioned those sources, the qualifications of the person who testifies. He referred to the question of whether the state should invoke legislative authority on how the medical community practices by saying it has been done in the past. In some circumstances, the best solution to a medical problem would be for the doctor to assist in a suicide that is not condoned in the state. So, we are, in fact, evoking some practices and eliminating others in the state. Number 0227 CHAIRMAN GREEN said if you get ten doctors in the room and how you might get ten different opinions. He asked why there was such a disparity in opinion. Some say this procedure is absolutely necessary to protect the life of the mother, others say there are other ways. REPRESENTATIVE KOTT answered that it is a perplexing problem and he would want to turn to the experts in the field. There is a substantial amount of literature by people who have performed this procedure and have in many cases testified, under oath. He assumed they were telling the truth, he gave them the benefit of the doubt. He thought in those types of cases, you have to turn to the experts for the truth. There is an abundance of information that suggests that this particular procedure is not the only procedure that is available to save the life of the mother. Number 0444 CHAIRMAN GREEN referred to testimony that this procedure was done to save the life of the mother or because of severe abnormalities and then there was testimony saying that 80 percent of these would live normal, happy lives if they lived. He asked who wasn't telling the truth. REPRESENTATIVE KOTT said you have testimony from one side that has hands-on experience and the other side from a group which most of the experience comes from a second party or from reading the literature. He said the committee would have to draw their own conclusions why there is this wide disparity between what is being said. REPRESENTATIVE CROFT expressed curiosity of why HB 65 does not allow the procedure to be performed to protect the health of the mother. He referred to the sponsor's statement that he was more comfortable with written testimony and pointed out a letter from Sherrie Richey, the first and only Alaskan perinatologist. Perinatology is a specialty in maternal fetal medicine. She says that partial-birth abortion is a procedure virtually always chosen because it is the safest way to terminate a pregnancy complicated by lethal fetal abnormality or a life threatening maternal complication. He did not mean to get into a debate, but we have conflicting medical evidence about whether this is the safest procedure for the health of the mother. He asked what the difficulty was with allowing the expert, the person treating that woman, to determine if this is required to protect her health. For the legislature to make a determination outlawing it and not allowing an exception for the health is our, not completely informed, decision that it can never be the best method to protect the health. Number 0640 REPRESENTATIVE KOTT said that when you get into the definition of what constitutes protecting the health of the mother, you discover, at least in the literature that he has researched, that it opens up a pandora's box. About anything you can conceive as being unhealthy, can be used to protect the mother's health. REPRESENTATIVE CROFT clarified that he is concerned that the health issue would be chosen to allow for an elective procedure. REPRESENTATIVE KOTT felt that, in many cases, it would be the case. He reminded the committee that the American Medical Association's legislative council voted unanimously to ban this particular procedure. He stated that he is not the expert, he is turning to the experts. The association is a group of qualified people who make various decisions and express them. REPRESENTATIVE CROFT said, in order for this legislation to go out without any proviso for the health of the mother, he had to be absolutely convinced that this is never a procedure that could best protect the mother's health. If it could be the best procedure, then we ought to allow it to be. When there is conflicting testimony, he would leave it to those people to determine what is best.
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