Legislature(1997 - 1998)
03/10/1997 01:20 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 151 CHAIRMAN GREEN advised members that the first item of business would be House Bill No. 65, "An Act relating to partial-birth abortions." He pointed out that public testimony had been closed. However, because of audio problems experienced with Anchorage at the previous hearing, he would allow those who had signed up the opportunity to provide testimony on that bill. THEDA PITTMAN testified to via teleconference from Anchorage, Alaska. She made reference to the statement made by Mr. Dozier, legislative aide to Representative Pete Kott, relating to the court cases he cited. Ms. Pittman advised members that his presentation was a report on the cases themselves and what he said was actually quite good; however, one would have to "tear the paper" off at that point; discard his editorial comments and actually compare the casework to the bill in order to understand the many, many problems of HB 65. MS. PITTMAN stated that essentially, although it was possible to ban an abortion after viability, it would be necessary to take into account that the court cases provided that the determination of viability must rest with the doctor. And also the determination of the danger to the life or the health of the woman must rest with the doctor, and that the particular procedure must rest with the doctor, as well. MS. PITTMAN stated that as for viability, abortion was not performed on a healthy woman with a healthy fetus. She noted that the editorial comments on the bill created the illusion that in the seventh, eighth or ninth month, a pregnant woman would get up one morning and suddenly decide not to be pregnant. After viability, abortions were not preformed on healthy women, with a healthy fetus; hence, there was no need for HB 65. Number 267 CHAIRMAN GREEN advised members public testimony would now be closed on HB 65. He asked that the prime sponsor, Representative Pete Kott address the committee. Number 342 REPRESENTATIVE PETE KOTT, Prime Sponsor, HB 65, advised members that Representative Porter had previously requested information regarding the various methods of partial-birth abortions. He advised members one method was the suction curettage/aspiration, which was a method typically employed during the first trimester; however, had been used up to the 15th week of pregnancy. Representative Kott explained that the abortionist mechanically dilates the opening of the uterus, inserts a vacuum device into the uterus, and removes the baby through negative suction. REPRESENTATIVE KOTT explained that a second type was known as D & E, which stood for dilation and evacuation. The cervix was dilated slowly, over a one or two day period, by the insertion of laminaria, and a suction curettage is inserted through the cervix and the baby is removed. He noted that frequently, the baby's head and torso were too large to be removed in that manner, and consequently, the abortionist dismembers the baby by the use of suction curettage or forceps. Representative Kott expressed that sometimes the size of the head, because it was too hard to be removed in the womb, would be decompressed either by crushing it, or inserting a suction device and removing the contents, which then allows for its removal. He added that that was a common second trimester abortion. Representative Kott stated that again, with both procedures he had mentioned, there was no life. REPRESENTATIVE KOTT advised members that the third method was what was termed installation/induction procedures, where the abortionist injects a substance, usually a saline solution, or combination of prostogladen and urea. He explained that that was injected into the amniotic cavity, or prostogladen suppositories placed into the vagina. The mother then goes into labor, and the dead fetus is expelled. Number 571 CHAIRMAN GREEN noted that Representative Kott was making reference to a "dead fetus", and asked if those method were only used if the fetus was dead, or did the procedure, itself, kill the fetus. REPRESENTATIVE KOTT advised members that the fetus, he would suspect in some circumstance, would already be dead; however, the intent was to extract, or eliminate a fetus or pregnancy of a woman. REPRESENTATIVE KOTT advised members that the fourth method involved a hysterectomy, which was a caesarian section preformed before term, or hysterotomy, which was the removal of the entire uterus. He pointed out that those methods were seldom used. REPRESENTATIVE KOTT informed members that the last method was dilation/extraction, known as D & X. He explained that dilators were inserted in the cervix for two days, and on the third day, the abortionist removes the dilators and ruptures the membranes, which he suspected was a rupture of the water bag, and with the use of forceps, the baby was delivered, except for the head; scissors would be inserted in the baby's skull, and spread in order to make the opening larger, at which time a suction catheter was inserted and the contents of the skull evacuated. Representative Kott advised members that with the skull depressed, the baby would be completely delivered. He expressed that as noted by the court, the primary distinction between the D & X procedure, and the D & E procedure, was that the D & E procedure resulted in dismemberment and piece by piece removal of the fetus from the uterus, and the D & X procedure resulted in a fetus being removed, basically, intact except for a portion of the skull contents, which would be suctioned out after the head was placed next to the opening of the uterus. Representative Kott explained that the D & X procedure was a more broad term, coined by Dr. McMahon, as killing the baby, or fetus, and then removing it, often times head first, as opposed to what Dr. Haskell had coined as a partial birth procedure, where the baby was actually spun around and delivered feet first. He pointed out that the fetus, in both cases, would be dead, which was where they got into the difference of the D & X procedure, as coined by Dr. Haskell. REPRESENTATIVE KOTT stated that it could be noted that the term D & X, as used by the court in Voinovich, was not a recognized medical term. He pointed out that again, it was coined by Dr. James McMahon, who used it to describe procedures, not within the definition of partial-birth abortion, as used in the proposed legislation. REPRESENTATIVE KOTT advised members that the definition of partial- birth abortion, as used in HB 65, did not overlap with other abortion methods. He noted that with suction curettage-aspiration, the baby was not partially vaginally delivered and then killed. Representative Kott explained that with the D & E procedure, the baby was partially delivered before it was killed. HB 65 required that before the procedure fell within the scope of the bill. With installation type methods, the baby would be vaginally delivered, but only after the death in the womb. He noted that in rare cases, the baby survived delivery, and therefore could not be legally killed because that would result in a substantial problem for the abortionist. REPRESENTATIVE KOTT explained that HB 65, by way of contrast, required that the abortionist partially, vaginally, deliver a live fetus and then kill the baby before complete delivery of the fetus. He noted that with the hysterectomy and hysterotomy procedure, there was no vaginal delivery, partially or otherwise. REPRESENTATIVE KOTT expressed that as stated by Dr. Joseph Riederer, who was the premier expert in Juneau who had delivered 2000 plus Juneau babies, that "The proposed definition of the bill is specific, and no other medical procedure would be restricted or affected by banning partial-birth abortion. The language is clear and specific." Representative Kott noted that was a quote from the Doctor's written testimony. Number 988 CHAIRMAN GREEN asked if the baby was dead before it was removed if that would be a D & X procedure, and if still alive when the body of the fetus came out and actually had the shears inserted in the head, if that was a different procedure. REPRESENTATIVE KOTT stated that that was what Dr. Haskell coined as a D & X, which was later referred to, and coined now as partial- birth abortion, and not to be confused with Dr. McMahon's procedure. CHAIRMAN GREEN asked if the procedure only dealt with dead fetuses. REPRESENTATIVE KOTT agreed that it did. Number 1033 REPRESENTATIVE BRIAN PORTER explained that that entire body of information was what he wanted in order to make sure he understood prior to voting on the proposed legislation. He noted that the definition of partial-birth abortion, that appeared in the bill, excluded, and was not meant to include in any way, any of the other procedures described by Representative Kott. Representative Porter stated that only when a portion of the physical fetus was exposed, outside of the mother's body, and a live fetus, that it was then killed and the extraction completed. REPRESENTATIVE KOTT advised members that would be correct. Representative Kott pointed out that there were particular views of resident experts around the state, who had all suggested that the procedure used was not a medical necessity for the purpose of the health of the mother. He added that the particular practice used, could not be found in any medical books, or medical school teachings. Representative Kott stated that as far as he knew, the practice was not being utilized in the state of Alaska, and the proposed legislation was a preemptive strike to ensure that it would not occur. He pointed out that HB 65 would not restrict as woman's right to choice. Number 1170 CHAIRMAN GREEN advised members that if they would only expect to see the procedure take place in order to protect the life of the mother, that he could not understand why one would be able to go in and forcibly turn the baby around, so that it would come out feet first, and insert the scissors after the baby was essentially delivered. He stated it appeared to him that delivery, in that procedure, was basically completed, and then the baby would be killed, rather than delivering it normally. Chairman Green expressed that he had a real problem with that. Number 1212 REPRESENTATIVE CROFT noted that a member of the public who testified on HB 65, bet committee members $500, that the procedure was never necessary to save the life of the mother. He asked Representative Kott if that was a true and accurate statement. REPRESENTATIVE KOTT stated that in his opinion, he did not believe it was based on the various medical reviews he had researched. REPRESENTATIVE CROFT asked if the procedure was necessary in order to save the health of the mother. REPRESENTATIVE KOTT felt that if the procedure was used to save the health of the mother, it would dilute the entire intent, because he felt there was a broad definition of health. He noted that arguably, anyone who performed the procedure under that guise, could legitimately establish, before the court, that there was a health issue. REPRESENTATIVE CROFT advised members that was part of his confusion. He understood Mr. Dozier's testimony, and the testimony of Representative Kott, to be that because the procedure was never necessary to save the health of the mother, that a health exception was not necessary. And if it was believed that the procedure was never necessary to save the life of the mother, why was that exception included. REPRESENTATIVE KOTT reiterated that it was his humble opinion that the procedure was not necessary to save the life of the mother, based on the literature from the experts who had written commentary on the procedure. REPRESENTATIVE CROFT pointed out that the draft committee substitute states members were being asked to adopt language which stated, "partial-birth abortions are not necessary to preserve the life, or health of pregnant women." He expressed that if they made that legislative finding, why was the exception included at all. GEORGE DOZIER, Legislative Assistant to Representative Kott, advised members that the reason for including the finding, was because HB 65 mirrored the definition as set out in the federal legislation that had been vetoed. He noted that that legislation had been re-introduced, and suspected that in light of events over the past couple of weeks, that it would stand a much better chance of not being vetoed this time. Mr. Dozier explained that by including the life provision in the proposed legislation, it would make Alaska statutes consistent with what he felt would be federal law. Number 1400 REPRESENTATIVE CON BUNDE advised members that he was troubled with the same contradiction of the findings. He noted that not many legislators were doctors, and it was found that it was not necessary to preserve life, and then it states that the procedure could not be done unless it was necessary to save life, which to him, was an absolute contraction. Representative Bunde pointed out that either the legislature did not know what it was talking about, and that finding should be removed, or it would be necessary to delete Section 2; one or the other. REPRESENTATIVE PORTER advised members that it would be his intent to support the removal of Section 1 because he did not feel any of that section supported the proposed legislation, and had ramifications past the intent of HB 65 that he did not want to contemplate. REPRESENTATIVE PORTER stated with respect to Section 2, he felt he could support it if he understood it correctly. He advised members he would be interested in hearing from the sponsor, or Mr. Dozier, what impact the wording of Roe, regarding the phrase, "the life or health of the mother", would have on leaving some reference for health in the proposed legislation. MR. DOZIER advised members that Roe was a case which involved the prohibition of, basically, all types of abortions. He explained that subsequent cases, including Casey, also involved an absolute prohibition of all types of abortion, in certain circumstances. Mr. Dozier pointed out that both cases indicated that the states could regulate abortions, except as necessary to preserve the life, and health of the mother. MR. DOZIER advised members that the proposed legislation, unlike Roe and Casey, did not involve a prohibition of abortion, per se, even for a short period of time, such was the case in Voinovich. Mr. Dozier explained that HB 65 prohibited the use of one particular procedure, and consequently, the life and health of the mother was already protected by what was already in place. CHAIRMAN GREEN noted that Representative Porter had suggested the removal of Section 1, with Section 2, then, becoming Section 1. He asked Mr. Dozier if he saw any adversity if that amendment was offered and should pass. REPRESENTATIVE KOTT reminded members that the draft committee substitute had not yet been adopted by the committee, and if Representative Porter would like to strike Section 1, the draft committee substitute could be set aside and adopt the original bill because that did not have the Section 1 language as was in the draft proposal. He advised members that he did not feel striking Section 1 would be substantially detrimental to the bill, adding that he felt it would add some credence if there was a challenge before the courts at some later point in time. REPRESENTATIVE CROFT moved to adopt CSHB 65 (JUD), Version B, as the committee's working document. REPRESENTATIVE JEANNETTE objected. REPRESENTATIVE ROKEBERG agreed with the position expressed by Representative Porter. He asked if members voted against adoption of the draft committee substitute, would that bring them back to the original version, or the State Affairs committee substitute. CHAIRMAN GREEN suggested that they adopt the draft committee substitute and then move on to strike Section 1. REPRESENTATIVE KOTT stated that it was his belief that the original bill before members did not include Section 1 of the committee substitute. CHAIRMAN GREEN clarified that if the draft committee substitute was not adopted, that they would be, then, considering the original bill, HB 65, Version E. REPRESENTATIVE ROKEBERG supported Representative Porter's position, and also pointed out that there was other language in the findings that he felt could generate some undue discussion. He advised members that he would be voting against the adoption of the draft committee substitute. REPRESENTATIVE CROFT advised members that he also had trouble with the legislative findings; however, he would prefer to start, and would vote to start from the draft committee substitute, and then decide whether or not they wanted to amend it to remove Section 1, and amend Section 2 in other respects. He noted that while the language was inconsistent on the life or health provision, between Sections 1 and 2, he thought the findings brought out an important aspect of the bill. Representative Croft pointed out that even with just the life part, they were in effect, finding that partial- birth abortions were not necessary to preserve the health of pregnant women, when it is not allowed as an exception. He felt the finding clarified what was actually being done. Representative Croft stated that he would like to keep the findings in, for discussion purposes, and possibly at the end of deliberations, members might decide to remove them. REPRESENTATIVE PORTER felt that if the bill included the exception relating to the life of the mother, he did not feel it was appropriate to have a finding that it was an unnecessary conclusion, noting that there were no doctors on the panel. Representative Porter advised members that the reason he was hesitant about all of the findings, was that they all appeared to have the potential to be interpreted as a position on abortion, as opposed to a position on partial-birth abortion. Representative Porter stated that from that standpoint, he did not believe they added any benefit to the intent of the proposed legislation. Number 1861 REPRESENTATIVE JAMES agreed that the findings were not relevant to the issue. She stated that in reading the original bill, it was very clear to her what it meant, and felt it was totally sufficient in its form. For that reason, she would be voting against adoption of the draft committee substitute. CHAIRMAN GREEN requested a roll call vote: In favor: Representatives Croft, Berkowitz and Green. Opposed: Representatives Bunde, Porter, Rokeberg and James. Adoption of CSHB 65(JUD) as a work draft failed, 4 to 3. CHAIRMAN GREEN pointed out that members would now have before them the original version of HB 65. Number 1929 REPRESENTATIVE CROFT advised members that the findings that were not adopted, stated that the legislature found the procedure was necessary to save the life or health of the mother. He expressed that it was clearly inconsistent the way it was, and the committee chose not to adopt it. However, he felt they could have consistently adopted it as an implicit finding that they would make to say, "The legislature finds that these procedures are not necessary to save the health of the mother.", either that, or the health of the mother was not important to them, which he felt the second would be unlikely. REPRESENTATIVE CROFT advised members that what they were saying, being non-doctors, was that the procedure was not necessary to save the health of the mother. He stated that Mr. Dozier said as much, although in his written presentation, he stated that Roe had an exception where the life and health of the mother was threatened, and that Casey, specifically said that "the state may prescribe abortion, except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother". Representative Croft expressed that that was the federal standard that was adopted by Casey. Because health was not included in the version the committee adopted, he would offer, with the permission of the Chair, two amendments, of which one would place "health" back in the bill, and the second would limit the prohibition to the third trimester. REPRESENTATIVE CROFT felt that what upset most people, and it did him, was the idea that those partial-birth abortions would be done on healthy women, with healthy babies in the third trimester, that would be ended with no medical justification. He saw no justification for that. Representative Croft pointed out that the bill before them, the original version, had no limitation in that direction; that it applied to any abortion from the first week of pregnancy and did not provide an exception for health. REPRESENTATIVE CROFT stated that if Roe and Casey specifically said you would have to provide protection for the life or health of the mother, that they would be doing something clearly unconstitutional by enacting something that solely protected life. He noted that Mr. Dozier disagreed, and the reason he had requested a copy of his written statement, was because he wanted to inquire more into what the rationale was for leaving it off. Representative Croft stated that Mr. Dozier stated that because the state had never conducted the procedure, it could not be necessary to save health. He noted that Mr. Dozier could clarify, if necessary; however, read from the prepared statement as follows: "Thus, the question must be asked, does HB 65, which prescribes 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 no." In other words, Representative Croft stated, that because it had never been needed in the state, it never could be needed in the state. REPRESENTATIVE CROFT pointed out that there were many medical procedures not done in the state of Alaska. For example, he believed that complicated open heart surgery was not done in Alaska. Representative Croft did not feel any member of the committee, member of the legislature, or any rationale person would say there was no time that procedure was not necessary to preserve someone's health, or in some cases, life. To him, the argument simply confused whether the state had ever done it, with whether it could ever be necessary. Representative Croft pointed out that it was clearly unconstitutional for the early portions of the pregnancy, and did fit with what the federal constitution required in the late portions, in Casey. REPRESENTATIVE CROFT expressed that the second rationale related for excluding health, that members could just conclude from what they know and through testimony they heard, that it was not. He stated that even setting aside the argument that it had not been done, in the state, so it could not ever need to be done, he did not consider a good argument. Representative Croft pointed out that members could say that, "we, as seven non-doctors" would conclude that a woman never needed the procedure to preserve her health. He felt that judgment was best left to the doctor and the patient. Representative Croft noted; however, that there was also substantial testimony which went the other way. He stated that the only way they could delete the "of health" language was if members were convinced, to a moral certainty, that it never was necessary. Representative Croft explained that as a non-doctor, he would have difficulty ever having that level of certainty, adding that there was certainly enough conflicting information to say that, in some professional opinions, including some that treat women in Alaska, that it sometimes was necessary. Because Representative Croft did not know the answer, he felt the exception should be included in the bill. REPRESENTATIVE PORTER advised members that they had been discussing legislative findings, and pointed out that there were not any, which was just established by a vote. He stated that the reference to what the legislature intended by those findings was off the table, and irrelevant. Number 2300 REPRESENTATIVE CROFT moved to amend HB 65, page 1, line 6, following the first occurrence of "life", insert: or health, and following the word "mother", delete [whose life], and insert who. REPRESENTATIVE PORTER objected for the purpose of discussion. REPRESENTATIVE CROFT advised members that it was a constitutional requirement, that they were simply acting unconstitutionally if the language was not included. He added that secondly, they would also be acting dispassionately if the proposed legislation would not allow a woman, whose pregnancy was going to cause her health problems, to make the choice of what to do, based on the sound medical judgment that she could obtain, that the legislature would be acting cruelly. REPRESENTATIVE CROFT stated that to his knowledge, the partial- birth procedure was not in the state of Alaska, but if it were, and the judgment of the woman and her health professional determined it was needed, that it could be done in the state. He noted that the reason members discuss legislative findings, though out of the present version, was that by not including health, members would be substituting their judgment for the judgment of health professionals, which would result in saying, "The constitution requires that you be given the right to protect your life or health, but we've done the work for you, because we found out that this is never needed for health." Representative Croft pointed out that members did not have the qualifications to do that, and would not be aware of the individual situation, and did not know enough about all the medical generalities, or specifics of a diagnosis. REPRESENTATIVE CROFT stated that more importantly, why were they not doing that with life. He advised members that if they were as confident that the procedure was never necessary to protect life, why was that exception included. Representative Croft suggested that it was because there were situations where that would be needed. Number 2408 REPRESENTATIVE PORTER spoke against the proposed amendment. He advised members that he came with an open question in his mind regarding the issue of including "health" in the bill to make it constitutional. He pointed out that he was satisfied with the explanation given by Mr. Dozier that that portion of the decision in Roe, must have to do with the life or health, was on a different plane, which was precisely why he did not want the findings to be a part of the proposed legislation. Representative Porter pointed out that they were only dealing with partial-birth abortions, and he felt it was a distinct enough separation from the issues of Roe to make a consideration of the life of the mother; not the general term "health" that could be one word that would subvert the entire intent of the proposed legislation, to not be unconstitutional at all. For those reasons, Representative Porter would vote against Amendment 1. Number 2465 REPRESENTATIVE BERKOWITZ hoped that Representative Porter was still maintaining an open mind. He noted that he had asked Legislative Legal what they had to say about that issue, and they stated that in relation to the "health" amendment, .... [Tape auto-reverse to Side B]. TAPE 97-35, SIDE B Number 000 REPRESENTATIVE BERKOWITZ referenced the memorandum by Legislative Legal Counsel which stated: "The amendment that would add 'health' considerations as an exception to the prohibition of partial-birth abortions would bring the bill in line with the U.S. Supreme Court requirement that abortion prohibitions or restrictions on the procedures that may be used, even after viability, must contain exceptions based not only on preserving the pregnant woman's life but also her health. Representative Berkowitz stated that Legislative Legal had a more objective perspective than Mr. Dozier, because, with all due respect, Mr. Dozier was an advocate on behalf of proposed legislation. He pointed out that comments in the past on the efficacy of good lawyering, would say that there was a difference between saying that health was a constitutional requirement, and health was not a constitutional requirement. REPRESENTATIVE PORTER stated that he would like to see the Legislative Legal opinion; however, not having had the opportunity to read the document, with only one sentence being referred to, that it would be difficult to respond to. REPRESENTATIVE BERKOWITZ advised members he would have been happy to have provided the information to members, but he had only just recently received it. CHAIRMAN GREEN called a five-minute recess for the purpose of providing committee members a copy of the document Representative Berkowitz referred to. The meeting recessed at 2:09 p.m., and was reconvened at 2:11 p.m. Number 079 CHAIRMAN GREEN pointed out that members had reviewed the document referred to by Representative Berkowitz, and he asked if there was any other discussion of committee members. REPRESENTATIVE ROKEBERG wondered if Mr. Dozier would want to comment on the memorandum, because he felt it was an opinion of defensibility, more than a constitutional issue. CHAIRMAN GREEN asked that Mr. Dozier approach the witness table. REPRESENTATIVE ROKEBERG further stated that the opinion was not only defensible, but constitutional, and that was the issue before members, as to whether the word and concept of "health" was a fatal defect in the draft of the legislation. He asked that Mr. Dozier respond if the absence of the word "health" would be constitutionally defensible, or if it was a constitutional flaw, and not defensible. MR. DOZIER expressed that he had not yet read the opinion provided by Legislative Legal; however, in his opinion, the absence of the word "health" was very defensible. He pointed out that members would have to look at the specific procedure that the bill addressed, by using two different standards. One was the viability standard, or the pre-viability standard, and the other standard was the period after which the baby became viable. Mr. Dozier advised members that in the pre-viability stage of the pregnancy, that determining whether or not a given regulation was constitutional, or not, that one would have to look whether there was an undue burden. He pointed out that the Supreme Court had defined that very explicitly to mean placing a substantial obstacle in the path of a women who was attempting to make a decision about abortion. MR. DOZIER pointed out that "health" was already protected, in the state of Alaska, and if abortion was needed to preserve a woman's health, that the proposed legislation would not take anything from that; there was no substantial obstacle. He noted that that was the pre-viability stage. The viability stage of the pregnancy had a different test, which was even more lenient to governmental regulations, and one could say, "no abortions at all, period. Can't use abortion practice A, procedure D, procedure C;" et cetera, et cetera, as long as there was an exception for health and the life of the mother. Mr. Dozier advised members that in the case before them, they were not doing that. What members would be endorsing, was that the particular procedure referred to in the bill, could not occur in the state of Alaska. Mr. Dozier continued to point out that everything in place would remain in place and, consequently, a provision for the health of a mother currently existed. Number 230 REPRESENTATIVE BERKOWITZ stated that it appeared to him that if there already was provision for health of the mother, that there should be no objection to reinserting "health of the mother" back into the bill. He expressed that that was done, at a regular time, to reaffirm what the legislative intent was. Representative Berkowitz felt it was important that HB 65 reflect the present legislature would not do anything to jeopardize the health, or the life, of a pregnant mother. He thought that by including the word "health", they would be underscoring what Mr. Dozier conceded was already a part of present law. Number 255 CHAIRMAN GREEN expressed that there were two attorney members on the House Judiciary Committee, and those members, having consulted with several other attorneys, that it appeared that the issue was a decision matter, rather than a requirement. He noted that he could understand the reason for including the language for health purposes, and could understand the desire to not include it because of the possibility that it would create a confusion, if not an absolute problem. Chairman Green stated that what he would like to enter into the record, was that it was an opinion, and a matter of conjecture among attorneys, just as the procedure itself, was a matter of conjecture among the medical people. Chairman Green pointed out that members had heard from influential people, and high ranking members of the medical profession, who had stated that it was absolutely not necessary. Friday, the committee heard from Dr. Nakamura, who stated that he thought there could be times when it might be necessary. CHAIRMAN GREEN felt that what the committee was faced with was a conjectural situation, as to whether or not "health" should be included in the proposed legislation, as well as the "life endangerment; and whether or not the particular procedure addressed, would be the only ramification to protect the mother's life. His feeling on the issue was that neither were necessary. CHAIRMAN GREEN stated that if the House Judiciary Committee, and the present legislature, wanted to pass a ban on the procedure addressed in HB 65, through an avenue of escape because of the necessity for the protection of the life only; not for health, or psychologic reasons, et cetera; that it would certainly be in the purview of the legislature to do so, adding that he felt it would withstand legal muster. REPRESENTATIVE BUNDE felt that one of the concerns that people had who were particularly opposed to partial-birth abortion, or any abortive procedure, was that a woman might choose to undergo the procedure on a whim, or because it could cause her some mental distress, or whatever. He thought that by adding the word "health", after "life" on line 6, in both instances, would read; "mother whose life, or health is endangered by the physical disorder, illness or injury, ...". Representative Bunde pointed out that they were not considering a notion where someone could claim mental duress; but a serious health problem. CHAIRMAN GREEN countered Representative Bunde's analogy regarding non-medical, and stated that ulcers were also a result of stress which was a physical disorder that could be brought about by the attitude of a mother. REPRESENTATIVE BUNDE expressed that it had been found that ulcers were brought on by a particular bacteria, not by stress; however understood the point Chairman Green was making. CHAIRMAN GREEN stated that it was yet conjectural, that there was an attitude that prevailed among the medical profession, that if one could keep their spirits up, one would heal faster. REPRESENTATIVE ROKEBERG expressed his appreciation of the discussion that was taking place. He stated that while sitting, indulging in medical expertise, members should know what they were talking about when, obviously, they did not; however, stated that that was okay, and that's why they were where they were. REPRESENTATIVE ROKEBERG advised members that in reviewing the record and considering the testimony provided by Dr. Koop [Ph], that said he saw no reason for the procedure if, in fact, the health of the mother was jeopardized, that there were other alternatives. He further stated that while reading the testimony of Dr. Ritche, which reflected that only in the case of a very complicated pregnancy, if there was lethal fetal abnormality, or life threatening, maternal medical complication, that the procedure under discussion would not even be contemplated from a medical view point. Representative Rokeberg expressed that if there were no other arguments that might overcome his concern relating to the constitutionality of omitting the word "health", that he would be voting against the amendment. Number 468 REPRESENTATIVE JAMES advised members that she was completely comfortable with existing language, and pointed out that the intent of Roe v. Wade, which indicated that law could not prohibit abortion, because of the life or health of the mother, was not included in the proposed legislation because it dealt with one specific procedure. She advised members that she would also vote against the amendment. CHAIRMAN GREEN asked if the objection was still maintained on the adoption of Amendment 1. Representative Porter and Rokeberg maintained their objection, and a roll call vote was taken. In favor: Representatives Bunde, Croft and Berkowitz. Opposed: Representatives Porter, Rokeberg, James and Chairman Green. Amendment 1 failed adoption, 4 to 3. Number 507 REPRESENTATIVE CROFT moved to adopt Amendment 2; page 1, line 11, following the word "means", delete [an], and page 1, line 11, following the word "means", insert, a third trimester. Representative Porter objected. REPRESENTATIVE CROFT explained that the issue that had been the most troubling for everyone, and the most troubling for him, was the idea that a partial-abortion procedure could be done on a healthy baby in the late stages of the pregnancy. Amendment 2 would address that specific concern, making it illegal when done in the third trimester. Representative Croft felt the amended language would go a long way towards curing the constitutional concerns. He pointed out that none of the committee members were experts, even the attorney members, but stated that in his humble opinion, without both of the amendments, or certainly without either one, he would confidently tell the committee that the law would not be upheld in a court of law, if enacted in its present form, and would be overturned as a violation of constitutional rights. CHAIRMAN GREEN asked if Representative Kott found, through his research, that there was viability earlier than the start of the third trimester. REPRESENTATIVE KOTT advised members that was what he discovered during his research of the entire issue, that there was viability prior to the beginning of the seventh month. CHAIRMAN GREEN stated that if the bill was enacted in its present form, that there could be viable babies/fetus, that would be subject to the type of abortion addressed in the bill. REPRESENTATIVE KOTT advised members that would be correct. He added that he felt the bill would withstand constitutional muster without Amendment 2. Representative Kott noted that they now had two conflicting views, as he suspected there would be many conflicting views, depending on who a person talked to, and what side of the issue they stood on. REPRESENTATIVE BERKOWITZ reiterated that the bill was unconstitutional in its present form, and he was fully confident that when it got to the courts, which it would, the courts would confirm that position. Number 662 REPRESENTATIVE JAMES pointed out that this was her fifth legislative session, and she had been a member of the House Judiciary Committee for two years. She expressed that while sitting on the House Judiciary Committee, she had seen legal opinions submitted on both sides of an issue; it is constitutional, it is not constitutional. Representative James provided an example whereby the legislature passed legislation that would phase out the longevity bonus program. Two legal opinions were presented, with one stating that it would definitely be unconstitutional, and the other said it was not. That law was challenged, went to court, and was found to be constitutional. Representative James felt that to second guess the courts on the issue before members, was not the issue. The issue before her was whether or not to prohibit a gruesome procedure, and whether or not it would make good sense to allow it to occur, where a baby is partially delivered, and then killed before completely taken from the uterus. That, to her, was not acceptable, and she felt members had heard plenty of testimony that indicated there were other methods. Representative James pointed out that they had just heard testimony which reflected that the procedure was used as an elective on healthy babies, and that was what HB 65 was attempting to do; to prohibit the use of that specific procedure for electives. REPRESENTATIVE JAMES stated with respect to Amendment 2, separating it to the third trimester would not necessarily address viability. She did not believe viability could be separated by saying, "third trimester". Representative James pointed out that viability in court cases prior to now, had a different connotation than a third trimester. She expressed that she would be voting against Amendment 2. REPRESENTATIVE PORTER maintained his objection to adoption of Amendment 2. CHAIRMAN GREEN requested a roll call vote. In favor: Representatives Bunde, Croft and Berkowitz. Opposed: Representatives Porter, Rokeberg, James and Chairman Green. Amendment 2 failed adoption, 4 to 3. Number 1000 REPRESENTATIVE JAMES moved to report CSHB 65(JUD) out of committee, with individual recommendations and attached fiscal notes. Representative Bunde objected. REPRESENTATIVE BUNDE advised members that he had a great deal of empathy for a number of the folks who had testified who were pro- life, and felt disenfranchised because of Roe v. Wade. He did not feel, at any time, that the legislation before them would address that case, or change anything. Representative Bunde expressed that from that point of view, those people deserved some level of comfort that their point of view was being addressed. REPRESENTATIVE BUNDE pointed out that the other side of that argument did not accomplish much, because it would not get to Roe v. Wade, and for those who viewed the proposed legislation as the first step to make abortion illegal, was a delusion. Representative Bunde recognized that it was unfortunate that some of the issues members had to face had heavy, philosophical connotations. He expressed that as in many of those other issues, it came down, for him, to practical application; what would he do if he were in those shoes. Representative Bunde stated that for him, if his wife were to face a life-threatening pregnancy, he would absolutely want her, and counsel her to have access to an abortion to save her life. He stressed that he would not trade his wife for an unborn child; personal, philosophical statement. CHAIRMAN GREEN asked if Representative Bunde was speaking to partial-birth abortion, or abortions, in general. REPRESENTATIVE BUNDE stated that he was speaking to any abortion. CHAIRMAN GREEN asked that he keep his comments to the issue of partial-birth abortion, which was what the bill was addressing. REPRESENTATIVE BUNDE stated that if a partial-birth abortion was what it would take to save his wife's life, he would accept it, and encourage it. However, he stated that when he did that, he was allowing himself that privilege, and he would then have to allow other people their philosophical approach to the situation, and how they would make those decisions. Representative Bunde advised members that he was sympathetic, and understanding of those who felt that abortion was wrong, partial-birth abortion. Having said all that, Representative Bunde expressed that he would not keep the bill from moving forward; however, pointed out that if enacted, and was challenged, overturned by the courts, or appeared at all in any way to challenge Roe v. Wade, that he would work against it. CHAIRMAN GREEN asked if there was anyone else that wished to discuss the issue of partial-birth abortion. REPRESENTATIVE JAMES felt it was very important, that when making a decision of the type of legislation presently before the committee, that it was a specific procedure that would become illegal. And a specific procedure that was very gruesome, and according to all of the testimony, and all of the investigations that she had had the ability to read and understand, was that it was not a necessary procedure. She expressed that they had included the caveat, that in case it was a procedure necessary to save the life of the mother, that it was a procedure that could be used. Representative James advised members that she agreed with Representative Bunde, that the life of the mother was over and above the life of an unborn child. However, stated that in any event, she felt they should not stray from the fact, that what the proposed legislation did was restrict one specific abortion procedure, and not in any way, shape or form, reduce any ability for anyone to get an abortion under current conditions. Representative James felt it was very important to make that clear. REPRESENTATIVE BERKOWITZ stated that during testimony, members had heard a lot of what he considered as being fairly sanctimonious, moralizing about abortion, in general; however, he would restrict his comments solely to the question of what he termed, late term abortions because that was the procedure that was at issue. He felt members, unwillingly, become the vehicles for inflammatory language which served to divide people of good will by succumbing to terms with something like partial-birth abortion. Representative Berkowitz pointed out that it was a procedure, a medical procedure, and doctors, every doctor he'd known, took a Hippocratic oath, not to do anything that would jeopardize the health or well being of a person. It seemed to him that when members circumscribe the procedures available to a doctor, they would be limiting the ability of a doctor to treat a patient. Representative Berkowitz stressed that he knew of no other procedure the state of Alaska had banned, much less, attached a C felony to. Representative Berkowitz felt they were taking an undo step forward; it was not a question in his mind of just limiting a medical procedure, it was also chipping away at abortion rights. He believed that was an unfortunate step to take, and was sorry members were being used as a vehicle for something that was divisive, pointing out that it was a procedure that had never been performed in the state of Alaska. Yet, it would cause a great deal of consternation, in the general public, and a great deal of outcry, because people felt so passionately about it. Representative Berkowitz stated that rather than letting a symbolic bill just die on the vine, the members had chosen to go forward with it, and he regretted that and would be voting against passage of the bill. CHAIRMAN GREEN reminded members that there were drugs used in other places, and procedures used in foreign countries that were not acceptable in the state of Alaska, so he thought to limit a specific abortion procedure, would not create a problem of attempting to decide whether it would one's spouse, or the baby that lived. He stated that if it was necessary in order to protect the mother, that he would never, ever trade his wife for an unborn child. Chairman Green noted that, by the same token, he would not sacrifice that child on a "maybe" diagnosis, because he would also hold the life of the child in high regard. Chairman Green reiterated that they were not addressing the issue of abortion, but one specific procedure that would be banned in the state. He expressed that that was what members should keep focused on, not the total idea of abortion. Number 1200 CHAIRMAN GREEN asked whether the objection was maintained; it was. He then requested a roll call vote. In favor: Representatives Bunde, Porter, Rokeberg, James and Chairman Green. Opposed: Representatives Croft and Berkowitz. Therefore, HB 65 was moved out of the House Judiciary Committee by a vote of 5 to 2. REPRESENTATIVE BUNDE expressed that he had a bill up in the House Finance Committee, and he asked that he be excused. CHAIRMAN GREEN called a brief at-ease at 2:37 p.m. The meeting reconvened at 2:41 p.m.
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