Legislature(1999 - 2000)
04/10/2000 01:28 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 329 - INFO AND INFORMED CONSENT FOR ABORTION CHAIRMAN KOTT announced that the next order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 329, "An Act relating to services and information available to pregnant women and other persons; and requiring informed consent and a 24-hour waiting period before an abortion may be performed unless there is a medical emergency." [Before the committee was CSSSHB 329(HES).] Number 0984 REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, testified as sponsor of SSHB 329. He stated that he'd introduced SSHB 329 in order to elevate the discussion on what is already in regulation, 12 AAC 40.070. Section 1 of the bill requires the Department of Health & Social Services (DHSS) to develop a standard information brochure that physicians would make available to a woman considering an abortion, and to provide 24- hour notice and a toll-free number for information. This section also creates definitions in state statute in regard to the following terms: conception, fertilization, gestational age, pregnant and unborn child. Section 2 addresses abortions that may not be performed until the informed consent provision is fulfilled; the informed provision is in Section 4. Section 5 provides for severability due to the nature of this issue, which will probably be decided in court. He noted that [DHSS] and the Department of Law [DOL] have said they will challenge [SSHB 329]. REPRESENTATIVE COGHILL turned to the reason why he chose to put SSHB 329 together. He began by saying that this is a national discussion as to when an unborn child is valuable. He noted that the Alaska House of Representatives just passed a resolution regarding fetal alcohol syndrome, which [indicates that the legislators] clearly value that life. However, in regard to abortion, he didn=t believe that women are given the appropriate or proper information. He pointed out that often there is coercion from the father, the family and society in general. Representative Coghill believes that this legislation could elevate the discussion such that the best medical and practical information could be placed in a booklet. H REPRESENTATIVE COGHILL noted that he had a booklet similar to what would be required under this legislation. This legislation would require [that the booklet] contain information regarding what would occur during pregnancy, in two-week gestational periods. This [attempts] to obtain the best medical information available. Furthermore, [this legislation] requests a 24-hour waiting period in order that the woman would have [the aforementioned information and] time to reflect. Representative Coghill reiterated that [SSHB 329] would, with the information booklet and the 24-hour waiting period, elevate what is already in Alaska=s code. Much of the other items are already [in place]. He indicated that the informed consent provision is not necessarily the question but rather the question is really in regard to how far the informed consent should go. Number 1194 REPRESENTATIVE COGHILL stated his view that it is a matter of dignity of the woman and life. He acknowledged that there would be some legal challenges to this. He also acknowledged that there is some strong opposition to this in regard to privacy. However, he related his belief [that this legislation] provides the woman privacy and [information to make an informed choice]. The booklet will have social services information and describe the responsibility of the father to the degree possible. Representative Coghill concluded by saying that SSHB 329 was introduced on the principle that life is worth valuing and the woman should be provided good medical information. He noted that the committee was welcome to review the booklet that he has and he offered to answer any questions. Number 1318 DIXIE HOOD, Licensed Marriage & Family Therapist, testified in opposition to HB 329, Awhich would impose a 24-hour waiting period on women seeking an abortion and which would require a woman to go through biased counseling before getting an abortion.@ Ms. Hood stated that she favored health care professionals providing a patient with informed consent before undertaking a medical procedure. To her knowledge, there is no reason to think that women seeking abortions are not provided with all the information necessary to make a reasoned decision. She said, AMandatory, anti-choice lectures don=t give women unbiased, meaningful medical information but rather they are told a laundry list of possible complications from the abortion procedure; complications which are rare.@ This legislation would require that false medical information be given to a woman because [the legislation] instructs a doctor to inform a woman that one of the risks of abortion includes breast cancer. Ms. Hood said that she is not aware of any studies, studies that are accepted in the medical community, that prove a connection between abortion and breast cancer. MS. HOOD stated that legislators shouldn=t tell medical professionals what is important and not important in regard to advising a patient about a medical procedure. She said, AAbortions are being singled out for the biased counseling requirement not because the sponsors are concerned about women=s health, but because they want to try to coerce women into carrying their pregnancy to term by whatever means possible.@ Ms. Hood noted her opposition to the 24-hour waiting period under this bill. She pointed out that medical professionals that perform abortions in Alaska are few and thus many women must travel great distances to obtain an abortion. Therefore, a waiting period places much greater expense and inconvenience on women. Furthermore, a waiting period places a woman=s health at risk. MS. HOOD discussed how a woman may have to reschedule work, arrange child care or juggle school responsibilities along with a provider=s scheduling issues, which with the waiting period could result in a delay of ten days to two weeks or even longer. Such a delay could push a first trimester abortion to a second trimester abortion and thus a more routine procedure is transformed into a more complicated a dangerous procedure. Ms. Hood urged the committee to oppose this legislation as such decisions should be left to a woman and her doctor. Number 1494 DENISE BURKE, Staff Counsel, Americans United for Life, testified via teleconference from San Antonio, Texas. She informed the committee that she was present in order to testify as a constitutional expert on HB 329. She stated: AHouse Bill 329 substantially complies with the law upheld by the United States Supreme Court in the case of Planned Parenthood v. Casey and with the exceptions of some concerns that we have over Section [AS] 18.16.010(a)(4), the law is constitutional.@ MS. BURKE noted that she had provided Representative Coghill=s office with a memorandum that proposes some additional changes to HB 329. The proposed changes are for clarity purposes and will enhance the constitutionality of this legislation. She related her belief that HB 329 provides this legislature with the opportunity to guarantee that women will have access to all the relevant information necessary to make an informed and mature decision. [This legislation] is a constitutional expression of the state=s interest in the health and safety of women as well as the state=s interest in protecting unborn children. MS. BURKE reiterated that [legislation] such as HB 329 would allow a woman to understand the full consequences of her decision concerning her pregnancy. She said, AIt is not an undue burden for a woman=s decision to be thoughtful and informed.@ House Bill 329 will ensure that the decision is thoughtful and well- informed. Furthermore, Alaska furthers the legitimate purpose of reducing the risk that a woman may elect an abortion only to later discover that she was not fully informed. Therefore, HB 329 ensures that a woman=s health is protected by providing all the necessary information to make an informed decision. She pointed out, AIt [this legislation] also adds >meat= to Alaska=s interest in protecting unborn children. It is not an undue burden for a state to favor childbirth over abortion or for a state to attempt to persuade a woman to choose childbirth over abortion.@ She informed the committee, AThe [U.S.] Supreme Court has explicitly stated that a state may further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even if when in doing so the state expresses a preference for childbirth over abortion.@ MS. BURKE turned to the 24-hour waiting period, which she said is constitutional under the [U.S.] Supreme Court precedent set out in the United States v. Casey. The notion that ideas would be more informed and deliberate if there is a period of reflection is not unreasonable. House Bill 329 provides important information for the background of a very important decision as well as affording time for reflection and consideration of the information. In regard to the concern that this legislation provides biased counseling, she pointed out that HB 329 explicitly provides for objective, nonjudgmental and accurate information. In conclusion, Ms. Burke reiterated that this law, save the concerns surrounding the domiciliary provision, is constitutional and should be enacted. Number 1761 REPRESENTATIVE KERTTULA related her understanding from Ms. Burke that under the Planned Parenthood case, this law is constitutional as drafted. MS. BURKE replied yes and noted that this law is constitutional under Planned Parenthood v. Casey and several other subsequent state law cases. She noted that 28 states have enacted informed consent legislation similar to this legislation and [the legislation] that was enacted under Planned Parenthood v. Casey. Currently, 25 of those laws are in effect and have withstood constitutional challenge; the remaining three are in the courts now. REPRESENTATIVE KERTTULA asked if Ms. Burke has had a chance to review the Alaska cases on this. MS. BURKE specified that she has reviewed the federal case law governing a woman=s right to an abortion and thus she hasn=t specifically reviewed any state law cases. She noted that she has thoroughly reviewed HB 329 and compared it with the law that was upheld under Planned Parenthood v. Casey and thus she was confident that HB 329 is constitutional. In further response to Representative Kerttula, Ms. Burke stated that she is an attorney. Number 1869 JOE MALICK (ph) testified briefly in support of HB 329. Number 1957 DEBBIE JOSLIN testified via teleconference from Delta Junction. She related her personal story in which she was 22 weeks pregnant when, after an ultrasound, she was told that her child, Isaiah, had multiple anomalies. She then spoke over the phone with a perinatologist in Anchorage and made arrangements to have another ultrasound. During the phone conversation, the perinatologist urged Ms. Joslin to terminate the pregnancy as the baby would probably die anyway, the medical expenses would be too great and Ms. Joslin=s life was also probably in danger. MS. JOSLIN continued, noting that the perinatologist hadn't examined her at this point. Ms. Joslin made an appointment with this doctor. At the appointment, she and her husband first saw a genetic counselor who reviewed some family history; [the genetic counselor] explained that Isaiah probably had Trisomy 18, a chromosomal abnormality. Ms. Joslin noted that [the genetic counselor] expressed surprise that she and her husband were not considering terminating the pregnancy and the genetic counsel asked several times whether they wanted to consider terminating the pregnancy. Then another ultrasound was performed by a technician after which the perinatologist took over the exam and listed the following anomalies: brain cyst, missing or unconnected stomach, hypoplastic left heart, eyes not properly spaced, underdeveloped chin, something wrong with spinal development, something wrong with his penis, rocker-bottom feet, possibly an extra toe and fluid in the abdominal cavity and lungs. MS. JOSLIN said she and her husband were told the fluid indicated that Isaiah was already in congestive heart failure and would never make it to his due date in May, and furthermore if Isaiah were to live, he would never respond to them. She said they were also told that all Trisomy infants were severely mentally retarded. [The perinatologist] described a somewhat vegetative state [that Isaiah would be in]; however, she said that he would probably be stillborn any day and if he was born alive, he would only live for a few minutes. Later the estimation as to how long Isaiah would live was adjusted to a few hours, and then to maybe a day at most. Finally, the doctors [estimated Isaiah could live] a few days [if he were born alive]. The Joslins agreed to an amniocentesis that day in order to determine whether Isaiah actually did have Trisomy 18. MS. JOSLIN noted the hope of herself and her husband that Isaiah would not have Trisomy 18 and that they could begin to make plans for heart surgery. However, [the perinatologist] told the Joslins that doctors will not operate on Trisomy infants since they all die in infancy anyway. Ms. Joslin informed the committee of the heavy hearts she and her husband had as they drove back to Delta discussing plans for Isaiah=s funeral versus their plans and dreams for him. MS. JOSLIN continued and informed the committee that within a few days, she received a call from the genetic counselor with the preliminary test results which showed Isaiah had Trisomy 13. When asked how Trisomy 13 differed from Trisomy 18, the genetic counselor said [Trisomy 13] was worse. Again the genetic counselor asked about termination, and again Ms. Joslin informed her that she and her husband were not interested in [terminating the pregnancy]. Then, almost immediately, Ms. Joslin received a call from her doctor in Fairbanks, who asked her about termination. Again she told her doctor that she was not interested in [terminating the pregnancy]. The doctor informed Ms. Joslin that her life was in danger and that since she chose to continue the pregnancy she could no longer be her doctor as she was a general practitioner and not qualified to handle such a case. MS. JOSLIN said that she then began seeing an osteopath doctor in Delta and an OB/GYN in Fairbanks. She informed them both what she had been told about the baby and about her own health. The OB/GYN doctor could not understand why she had been told her life was in danger. The OB/GYN doctor treated Ms. Joslin during the remainder of the pregnancy and Ms. Joslin never had any complications or problems beyond the usual complaints from which pregnant women suffer. MS. JOSLIN returned to the results of the amniocentesis. She informed the committee that a couple of weeks after the preliminary results, the genetic counselor called with the final results, which were that Isaiah had Trisomy 13. Again, the genetic counselor asked Ms. Joslin about termination to which Ms. Joslin replied no again. Ms. Joslin said when she asked the genetic counselor what she would do if she was interested in terminating the pregnancy, the genetic counselor became very excited and informed Ms. Joslin that "there is the most wonderful clinic in Kansas." In response to Ms. Joslin, the genetic counselor affirmed that she was referring to Dr. Tiller's clinic. The genetic counselor asked if Ms. Joslin knew him, to which Ms. Joslin replied, "No, but I know about him." The genetic counselor offered to have other women who had abortions call Ms. Joslin, but she declined. MS. JOSLIN continued. She indicated the genetic counselor sensed that she was not interested in pursuing [termination of the pregnancy] further and thus she told Ms. Joslin, in a very apologetic voice, that there is a parent support group that is rather positive - as though positive is a bad thing. The genetic counselor then informed Ms. Joslin that she had information on this group, including an 800 number. The genetic counselor also informed Ms. Joslin that she had pamphlets and books in her office that gave detailed information, including pictures, about Trisomy 18, 13 and other related disorders. MS. JOSLIN reported that she'd called S.O.F.T. (Support Organization for Trisomy 18, 13 and Related Disorders) and discovered that the group is positive, but realistic. Ms. Joslin talked with a woman [in S.O.F.T.] over the phone about Isaiah's diagnosis, and this woman told Ms. Joslin that [the perinatologist and the genetic counselor] were probably correct in regard to Isaiah=s future, however there was a chance he could live. [The woman from S.O.F.T.] talked to Ms. Joslin about the parents to which Ms. Joslin recalled asking, "Parents, you mean they have live children?" [The woman from S.O.F.T.] said that some did have live children. Upon further questioning, Ms. Joslin learned that the age of the children varied, but there were a few children who were teenagers and even a couple of adults. [The woman from S.O.F.T.] took Ms. Joslin=s name and address and told her she would send a family packet right a way. MS. JOSLIN noted that she'd also requested the books [S.O.F.T.] had available: Trisomy 13, A Guideline for Families and Care of the Infant; and Child with Trisomy 18 or 13. These were the books the genetic counselor had described as having in her office. Although the information was heartbreaking, it offered some hope and some help which were two things the Joslins hadn't received much of. Ms. Joslin remarked, ANot only did some of these children live, they played and smiled and laughed and talked and learned things and showed affection and responded to love and affection.@ MS. JOSLIN informed the committee that [she and her husband] located a wonderful pediatrician in Fairbanks who agreed that Isaiah's chances were not good; however, she was willing to do what she could to help him. [The Joslins] decided to hire this pediatrician and made plans to deliver their baby in Fairbanks. Only 11 days before his due date, Isaiah John Joslin was born at Fairbanks Memorial Hospital. Isaiah weighed 6 pounds, l ounce and was 18 1/4 inches long; he had lots of bright red hair. Isaiah had difficulty breathing when he was first born and the doctors and nurses checked him over; they could find no sign of the problems seen earlier on three different ultrasounds. However, Isaiah suffered from a ventricular septal defect (VSD), a hole in his heart. Although VSD is very serious, it is a far cry from the problems he had earlier. She informed the committee that Isaiah required oxygen and a nasal gastric tube for feeding. Still, Isaiah looked so normal that even the nursing staff agreed he should be retested. The test results again showed that Isaiah had Trisomy 13. Isaiah stayed in the hospital for 12 days and then came home where he lived for 20 days. Ms. Joslin remarked, AThose were some of the hardest but the sweetest days of my life.@ MS. JOSLIN explained that she told the committee this story in order that they understand why she asks them to pass [SSHB 329]. TAPE 00-54, SIDE A MS. JOSLIN continued by noting that she requested pamphlets from other states; she noted that the committee may have those pamphlets before it. She informed the committee that she was not psychologically harmed by seeing the photographs in the pamphlets. However, if anything produced psychological harm for her, it was the pressure from the doctors to have an abortion. She said that talking to other doctors, doing her own research and reading about Trisomy infants as well as her own personal experience [has lead her to] believe that her life was never in any danger. Yet, an undue burden was created at a time when she already had plenty to worry about. Therefore, she believes this [undue burden] was done to try and convince her to have an abortion. MS. JOSLIN reminded the committee that she was told that all Trisomy infants die, although she now knows that between 90 and 95 percent of all Trisomy infants die before one year of age. She realized that doesn't leave much room for hope, but she emphasized that it is quite different than saying they all die. Ms. Joslin also noted that she was not told about [S.O.F.T.] for over two weeks, Anot until they had finally given up on talking me into an abortion.@ She acknowledged that one may say that [the doctors] were not sure Isaiah had Trisomy until the final results were available. Although that may be so, they were sure enough to continually mention termination. She pointed out that she drove 350 miles to see the doctor and was never shown the written information about this disorder that was in the office. However, [the doctors] were careful to tell her every negative thing about [carrying] the baby [to term] and she was never told of any of the risks, either physical or emotional, of having an abortion. MS. JOSLIN said she believes the doctors who repeatedly brought up termination probably meant well. She said, AThe problem comes in where they apparently believed that their professional status, or their medical degrees placed them in a position to know better than me what was best for me, my family and my baby and that simply is not true.@ She further stated, AGiving life to Isaiah was hard on our family; but it wasn't too hard. It was expensive; but it wasn't too expensive. It was hard on the other children; but it wasn't too hard on the other children. Giving life to Isaiah blessed our family, including the other children.@ She explained that due to Isaiah=s heart condition, he was always lethargic and sleepy, but he was never in pain. The equipment monitoring his oxygen saturation rate showed that whenever he was held or shown affection, he was aware of it as his saturation levels would soar when he was being Aloved on.@ MS. JOSLIN offered an example: her five-year-old daughter Emily loves to recall the night before Isaiah died when his oxygen saturation level rose from the 60s to 100 when he was laid in Emily's arms. Ms. Joslin said, AThere seems to be a feeling out there that a successful life is one that is free from pain or suffering or trials, and that isn't true. Isaiah's life was successful. We loved him, and he loved us.@ She noted that since Isaiah's death [the family] has been comforted and encouraged by reading of other families with Trisomy children in the S.O.F.T. newsletter. Number 0241 MS. JOSLIN said she would like for every mother to make the same decision she did, but she realizes that won't happen. However, every mother deserves to have all of the information pertinent to her situation so that she can make an intelligent informed decision. Therefore, Ms. Joslin stated that voting against [SSHB 329], in effect says, that women are not competent enough to be trusted with the facts regarding the health of their own bodies and that of their unborn children. She further stated, AA >no= vote says that you have no compassion for families and believe that doctors are better suited to make decisions for women and their unborn babies. A >no= vote is a vote against women=s rights.@ On the other hand, a "yes" vote for [SSHB 329] sends an entirely different message. She said, AA vote for informed consent says that you have respect for the intelligence of women and believe that they have the right to be trusted with the information necessary to make decisions for themselves.@ She noted her hope that this body of legislators will be in favor of women's rights. Number 0326 JUDY CAVANAUGH testified in opposition to [SSHB 329], which she believes shows a lack of trust in Alaskan women and their doctors. Furthermore, she believes that government should not interfere in a personal medical decision. She said, AAs an ER nurse, I know that the standards of medical practice and institutional policies and state laws already require that health care practitioners provide all patients with accurate and unbiased information regarding the risks and benefits of any medical procedure. This is called informed consent.@ She stated that [SSHB 329] singles out abortions from all other medical procedures. She then pointed out that even dangerous and complicated surgeries do not have a legally required waiting period. This legislation requires doctors to give a biased lecture. Furthermore, this legislation implies that women do not think through their decisions nor are they capable of making their own decisions. Moreover, this legislation illustrates a lack of respect for women. MS. CAVANAUGH informed the committee that she has a Juneau Coalition for Pro-Choice telephone in her home. Every month Ms. Cavanaugh receives one to ten phone calls from women throughout Southeast Alaska who are seeking information about abortions. Without exception, these women have thought long and hard about their decisions. Ms. Cavanaugh mentioned that there is already a built-in delay from the time a woman discovers she is pregnant to her decision. MS. CAVANAUGH noted that she spends hours talking with women regarding their choices. Then this legislation requires an additional 24-hour waiting period after already making a decision, which Ms. Cavanaugh felt is insulting to women. Furthermore, having to leave Juneau for an abortion poses a hardship, sometimes a financial hardship, for many women. However, the greatest hardship is almost always having to leave Juneau and a supportive environment. To require another 24-hour waiting period creates an additional burden, financially and emotionally. Furthermore, [the 24-hour waiting period] could result in a first-trimester abortion becoming a second-trimester abortion. In conclusion, Ms. Cavanaugh stated that this legislation will not provide better more informed health care for the women of Alaska but rather it will further limit access to a legal medical procedure. Number 0543 DEBORAH SCHORR, Juneau Pro-Choice Coalition, testified in opposition to [SSHB 329]. She informed the committee that the Juneau Pro-Choice Coalition has identified more than 5,000 Pro- Choice voters in House districts 3 and 4. The Juneau Pro-Choice Coalition is a member of the Alaska Pro-Choice Alliance. Ms. Schorr said that [SSHB 329] does two things. First, this legislation would require health professionals to provide false and misleading information to women seeking an abortion. She identified this as an attempt to prey on the emotions of these women in order to frighten them into not having an abortion. Second, this legislation would make it more difficult to have an abortion. Again, this would be done in the hope that women would be discouraged from seeking this safe and legal medical procedure. MS. SCHORR continued. She said this legislation requires that a health care professional show the woman photographs of fetuses and describe the anatomical and physiological characteristics of a fetus, which is a tactic well known to anti-abortion extremist. This legislation further requires that women be informed about adverse psychological effects of abortion; however, she questioned the psychological effects of sitting through biased counseling for a woman who has been raped or is a victim of incest. Ms. Schorr informed the committee of a study performed by the World Health Organization that could find no medical evidence that abortion causes psychological injury. Additionally, this legislation would require that women be told about health risks from an abortion, such as breast cancer. However, there is no scientific evidence that an abortion increases a woman=s risk of breast cancer. MS. SCHORR requested that the committee leave the details of informed consent to those that understand the health risks of pregnancy and abortion. She reiterated that abortion is being singled out because the sponsors want to outlaw abortion. Furthermore, the 24-hour waiting period increases a woman=s health risks. She noted that many women, particularly those in rural Alaska, must travel far to reach the nearest clinic. With the aforementioned hardships faced by these women, a 24-hour waiting period could delay an abortion to the second trimester. She informed the committee that in states where a waiting period has been imposed, rates of second trimester abortions have increased. MS. SCHORR continued. She pointed out that second trimester abortions are riskier to women and more complicated. Ms. Schorr stated, AThe harm from the restrictions the sponsors of this bill wish to impose are felt most by those who have the fewest resources: low income, minors, rural women, working women without insurance or sick leave and battered women.@ She further stated, AMany in this legislature talk a great deal of less governmental intrusion and this would be a good time to practice what you preach. Leave these matters up to women and their doctors.@ CHAIRMAN KOTT referred to Ms. Schorr=s remark that this legislation would require physicians to provide false and misleading information. He asked if Ms. Schorr could cite the section to which she is referring. MS. SCHORR said she didn=t have the bill in front of her. CHAIRMAN KOTT remarked that perhaps Dr. Isada, who is online, could Ahelp us out.@ Number 0830 DR. NELSON ISADA, Perinatologist, testified via teleconference. He informed the committee that he is one of two perinatologist in the state. When there are problems, folks end up seeing he or the other perinatologist. Dr. Isada acknowledged that many physicians are adamantly opposed to abortion and he respected that position. However, he [and the other perinatologist in the state] get the phone calls [from physicians] regarding Ahandling@ a situation because [the physician] can=t say anything due to his/her position in the church, et cetera. Dr. Isada stated, AI do not come to you as an outside consultant with a political agenda from another state.@ He specified that he [and the other perinatologist in the state] see folks in crisis. DR. ISADA posed a situation in which a woman who is ten weeks pregnant has critical aortic stenosis from which she could possibly die. He assumed that he would show the patient the pictures and the pamphlet. If the woman elects to continue the pregnancy and succumbs to her disease, he [predicted] that this woman=s family would charge that he gave biased counseling. For these types of things, the move in health plans is to have co- liability. However, Dr. Isada saw no co-liability provision in [SSHB 329]. Therefore, he was concerned with the effects of the bill. Furthermore, he echoed earlier comments regarding the fact that there already Alaskan statutes that hold [physicians] to a very high standard for informed consent. The AMA [Alaska Medical Association] and the American Medical Association, of which Dr. Isada is not a member, and the American College of OB/GYNs, of which Dr. Isada is a member, are opposed to such legislative involvement in the informed consent process. He explained that the former example was used [to illustrate] that informed consent is part of the decision-making process. The process of getting [to the procedure] and discussing the pros, cons, risks and benefits is the difficult portion. DR. ISADA turned to the issue of [physicians being required to provide] possibly misleading information, which is related to the controversy that breast cancer is [linked to] abortion. He pointed out, AOne error or fact that has been omitted is with an abortion one of the complications is continued pregnancy.@ Dr. Isada informed the committee that the only lawsuit that named him was in 1984 when a woman elected to continue a pregnancy. The woman delivered a healthy baby by C-section. However, the woman sued Dr. Isada based on the pain and suffering she experienced due to having a normal child. Although that [lawsuit] was stopped, this is an issue for credentials and insurance. Therefore, he reiterated [his concern] with co-liability and errors of fact. DR. ISADA addressed the testimony of Ms. Burke regarding her experience with a Trisomy child. Dr. Isada noted that he has worked with the other perinatologist in Alaska and from his perception, he has seen this perinatologist spend hours counseling patients. Furthermore, he stated that he [and the other perinatologist] nor their genetic counselors urge a woman to choose an abortion as that is the woman=s decision. He informed the committee that many health care practitioners are concerned with the risk of wrongful life in which the practitioners are sued by folks who say that they would have never had the child had they known all of the problems that developed. He noted that in these cases, most of the folks wind up continuing the pregnancy anyway. In regard to the 30-day domiciliary provision, Dr. Isada remarked that he was happy to see that being deleted. Number 1164 CHAIRMAN KOTT reiterated his earlier question in regard to Ms. Schorr=s remark that this legislation would require physicians to provide false and misleading information. Again he inquired as to the area [in the bill] where such a charge would be relevant. DR. ISADA commented that he and other health care providers with whom he has discussed this have questioned who would determine what is objective information that describes methods of abortion procedures. REPRESENTATIVE CROFT asked if the clinical definition of pregnancy is usually a fertilized egg or fertilized egg that is implanted on the uterine wall. He pointed out that the bill defines pregnancy as Athe second, if you will, after meeting of sperm and egg.@ He asked if that is the standard clinical definition of pregnancy. DR. ISADA replied that is correct. However, he said that he was aware of several ongoing lawsuits in which women seeking another procedure had a pregnancy test, which was negative and thus these women proceeded with the procedure. In further response to Representative Croft, Dr. Isada specified that the clinical definition of pregnancy is the implantation [of the fertilized egg on the uterine wall]. CHAIRMAN KOTT returned to the notion that [this bill will require physicians to provide] false or misleading information. Chairman Kott referred to page 2, lines 26-29, of the bill and inquired as to Dr. Isada=s understanding of the language Awhen medically accurate@. DR. ISADA answered that he could inform the committee in regard to what he does, although he acknowledged the many people are waiting to testify. CHAIRMAN KOTT asked if Dr. Isada would utilize the AMA=s definition or the perinatologist=s definition. DR. ISADA noted that there are many differing opinions in internal fetal medicine/obstetrics. In terms of breast cancer, that is controversial. He informed the committee that his standard consultation includes the risks of infection, hemorrhage, danger to subsequent pregnancy, infertility and possible continued pregnancy. He reiterated that continued pregnancy be included as a complication because it is a recognized medical complication. Number 1379 DR. JAN WHITEFIELD testified via teleconference. He acknowledged the time constraints facing the committee and said that he would limit his remarks to the following two areas. First, he addressed the definition of fertilization in the bill. He informed the committee that this [definition] can become problematic for those that perform routine medical [procedures] such as the insertion of IUDs (intrauterine device), prescription of birth control pills and prescription of emergency contraception. He explained that under the bill if a person performs an abortion without the woman=s informed consent, the physician can be held liable. DR. WHITEFIELD pointed out that both pro-choice and pro-life people consider the choice to have an IUD implanted as an abortive facet because a fertilized egg may not implant on [the wall] of the uterus. Therefore, this definition of pregnancy when there is fertilization versus implantation makes such things as IUDs an abortive facet. Furthermore, the definition raises the question as to what happens when a person loses a pregnancy due to an IUD that is in place - particularly when [the physician] has not talked with the patient regarding the fact that [an IUD] may cause a pregnancy not to implant. The same would be true for emergency contraception. DR. WHITEFIELD explained that if a physician gives a person emergency contraception and the pregnancy has not implanted, that is considered a form of abortion. Therefore, he asked if a person who calls regarding emergency contraception should be required to come into the physician=s office and does this person have to fulfill the 24-hour informed consent before being given the emergency contraception. If that is the case, the effectiveness and availability of the emergency contraception is lessened. Therefore, that definition is problematic. DR. WHITEFIELD turned to the 24-hour waiting period. He was sure that when the numbers are run, this bill [would be considered] discriminatory to [Alaska] Natives. He explained that those coming in from the Bush for an abortion will incur extra expense for the time spent waiting to undergo informed consent and the 24-hour waiting period. He informed the committee that by far, the largest group of people coming in from the Bush to have abortions are Alaska Natives. CHAIRMAN KOTT inquired as to the procedure followed when scheduling an abortion. He asked if the evaluation is scheduled first or is the procedure performed the same day as [the evaluation]. DR. WHITEFIELD explained that if a person chooses to come in for a pregnancy termination, she would first have an evaluation to determine whether she is an appropriate candidate for pregnancy termination. The person goes through a counseling process to determine whether pregnancy termination is something this person wants and other options are presented to the person. Then the person would go through the process of informed consent. When it has been determined that the person is an appropriate candidate for pregnancy termination and that she is choosing [abortion] of her own free will - she has proceeded through informed consent - then a laminary (ph) is inserted on the first day. On the second day, the termination is performed. By adding the 24-hour waiting period, the person will come in and go through the informed consent and be provided the literature. The person would then be allowed to leave and go through the literature and come back the next day to go through ultrasounds, confirmation of pregnancy and gestation and insertion of laminary (ph). Then the person would return the third day for the termination of the pregnancy. Number 1616 REPRESENTATIVE KERTTULA asked if there is any other procedure for which a 24-hour waiting period is required. DR. WHITEFIELD replied no. He noted that he sent a letter to each of [the committee members]. Dr. Whitefield stated that informed consent is a medical process, Ait=s not legal.@ He noted that the legislature, in trying to define informed consent, is taking on an onerous task because this is something that will change as time passes. For example, the risks of medical abortion are very different in 1999-2000 versus 1970. The risks change with time. REPRESENTATIVE MURKOWSKI returned to the informed-consent process outlined by Dr. Whitefield. She surmised that the process includes the woman signing documentation saying that she understands the procedure she is about to undertake. She asked if anything in the informed consent lists what the physician has described to the patient. DR. WHITEFIELD answered that the informed consent documents list a certain number of things such as the risk of infection and hemorrhage. Such risks are listed because investigators [seem to] uniformly agree on those. However, there are other risks that are not specifically listed such as the danger of subsequent pregnancies. Dr. Whitefield noted that the Centers for Disease Control and Prevention (CDC) has the largest single databank for abortion services that have been available since abortions have been available in the United States. The CDC data bank says that a person who has one, two or three uncomplicated first trimester pregnancy terminations, faces no increased risk with getting pregnant in the future or carrying a pregnancy to term. Therefore, he said he would inform a person with no previous pregnancy terminations or previous pregnancies that as long as there are no complications with this pregnancy termination, it would not cause any danger to subsequent pregnancies. However, a different approach may be taken for a person coming in for her fifth pregnancy termination in that she would be told that CDC data indicates that this fifth abortion may cause difficulty in regard to getting pregnant in the future as well as carrying a pregnancy to term. Therefore, the informed consent is tailored to the individual as the person has [an individual] history. REPRESENTATIVE MURKOWSKI related her understanding, then, that there is no standardized form. DR. WHITEFIELD said there is a standardized form that includes items that are expected to be risks no matter how many pregnancy terminations one has had, such as the risk of retained tissue requiring a repeat D&C (dilation and curettage). However, other things may be tailored for the individual and thus may not be included on the form. In further response to Representative Murkowski, Dr. Whitefield said he would have to talk with his administrative director and attorney before faxing their informed consent forms. Number 1872 IDA BARNICK (ph), Alaskans for Life, stated that Alaskans for Life supports [SSHB 329]. Alaskans for Life feel that it is not too much to request a 24-hour waiting period as this deals with ending the life of an unborn child. Before the mother decides to end the life of her child, she should have complete information in regard to the age of the unborn child, what the unborn child looks like, the risks of terminating the pregnancy as well as the [psychological] risks to the mother if she chooses to terminate the pregnancy. There are many women who have ended their pregnancy and now require psychiatric care due to their realization that they ended the life of their child. She reiterated support for [SSHB 329]. Number 1948 MARY DYE (ph) stated her support of this legislation. She said if she were a woman in this situation, which would affect her life as well as another life, she would want to take the extra 24 hours to think it through. In regard to additional information, she remarked that anytime she makes a critical decision she would want to gather all the information she could. She noted that surgery such as terminating a pregnancy is different from other surgeries because there are two lives involved. Ms. Dye(ph) remarked that [physicians] stand to profit from the procedure and thus she would [also] like to receive information from those that do not stand to gain a profit. Number 2018 SHERRIE GOLL testified via teleconference from Haines. She testified in strong opposition to [SSHB 329] and urged that this bill not be forwarded from the committee. Ms. Goll felt that this legislation authorizes government to infringe on a woman=s private decision in regard to whether and when to bear children. Furthermore, this legislation challenges a woman=s right to control her own body. As previously mentioned, the requirements imposed [under SSHB 329] on the doctor and the patient are not required for other medical procedures. She said that the normal informed consent laws are adequate. Ms. Goll felt that as elected officials, especially as members of the [House] Judiciary Committee, they have the responsibility to uphold the state constitution. MS. GOLL pointed out that the legislation has problems with the definitions in that Ait refers to a fertilized egg as an unborn child rather than using one of the accepted terms: >embryo= for conception to the time that a heartbeat is heard and >fetus= from the time the heartbeat is heard until viability.@ She emphasized that fetuses must not be given (indisc.) in the state=s statute. MS. GOLL turned to the 24-hour waiting period and echoed earlier comments that this waiting period is dangerous. She also echoed the information that those states that have adopted such onerous waiting periods have experienced an increase in second term abortions. For example, the State of Mississippi has experienced a 53 percent increase [in second term abortions]. Therefore, the danger to a woman is increased and [the waiting period] merely prolongs a medical ordeal. MS. GOLL restated earlier testimony regarding the restricted access to abortions that Alaskan women face. Many Alaskan women must travel from their home to receive such services. Therefore, this waiting period not only prolongs things, it also increases the costs. She reiterated that this legislation is insulting to women as it seems to imagine that a woman will wake up one day and decide to do this. Women are reasonable human beings as are men; they should not be treated differently. MS. GOLL said that the 24-hour waiting period allows anti- abortion extremists to follow women home from the clinic in order to obtain their addresses so that they can be harassed at home. Ms. Goll stated, AI feel this bill is an affront to the women of the state who have and, ..., intend to maintain every individual woman=s right to privacy and freedom from government intrusion regarding personal reproductive decisions.@ The government doesn=t have a place in this arena. In regard to those who have spoken in support of this bill, Ms. Goll believed that they had every right to carry their pregnancy to term. However, they shouldn=t try to interfere with other women=s rights, particularly in the law. She pointed out that a person has [control] over who their doctor is, and if someone does not like her doctor=s advice, a new doctor can be obtained. Number 2198 ROBIN SMITH testified next via teleconference from Anchorage. She requested that the committee stop this bill now. She viewed HB 329 as an attempt to shame and intimidate women as it suggests that a woman makes the decision to have an abortion lightly. Furthermore, this legislation discourages women from acting in the best interest of themselves and their families. She informed the committee that Alaska has had the highest rate of rape in the nation for 16 of the past 20 years. Therefore, it would be cruel and insensitive to require rape victims to delay an abortion or to require these women to view 18 photographs of fetal development. This [legislation] would also be unfair for those women who choose not to report a rape, for women with severely deformed fetuses or women whose lives may be endangered by carrying a pregnancy to term. MS. SMITH continued. She indicated a woman must wait until her seventh week of pregnancy before she can have a surgical abortion, which is ample time for a woman to consult with her minister, family, friends and doctor. Ms. Smith said, AAlaska needs to prevent rape and prevent unintended pregnancies before we implement such Draconian measures.@ She identified responsible sex education in schools and communities as well as expanded access to reproductive health care as the tools to reduce abortion. In order to reduce abortions, unintended pregnancies must be stopped and thus the reasons [for unintended pregnancies] must be addressed not the consequences. In conclusion, Ms. Smith urged the committee to stop [SSHB 329] now. Number 2282 LEILA WISE, testifying via teleconference from Anchorage, stated her opposition to [SSHB 329] and urged the committee not to pass it out of the committee. The decision to have an abortion is a personal and private decision that is best left to a woman and the support she chooses. Therefore, she viewed the provisions of this bill as invasive, tentative and based on inaccurate information about medical practices and terminology. Ms. Wise said that this legislation is unconstitutional, which the Department of Law has already advised [the committee] of. Furthermore, the bill is inaccurate as it uses incorrect definitions. She explained that abortion is a medical procedure and thus it is appropriate to use only medically accepted and accurate terminology. She echoed earlier comments regarding the inappropriate use of Aunborn child@ in this bill as well as the improper definition of Aconception.@ Such an erroneous definition of Aconception@ could lead to the banning of emergency contraception as well as other contraceptives. She hoped that the intention is not to ban the use of contraceptives as they are the best way to reduce the number of unintended pregnancies and abortions. Number 2361 MS. WISE remarked that this legislation is intrusive because the time many women enter an abortion clinic, they have already made their decision and consulted their family and friends [and thus] made an informed decision. Therefore, this legislation attempts to interfere with a woman=s personal decision making. Furthermore, no other medical procedure requires a 24-hour waiting period for all women and exclusively punishes women. Abortion, as does any other medical procedure, requires informed consent and the information is conveyed by the physician and his/her staff. MS. WISE asked if informed consent would [now] be required for pregnancy and would it include information on prenatal development, the risk of maternal death and complications, which is greater than the risk associated with abortion. She informed the committee that a woman near Homer died a few weeks ago during childbirth and this week the Anchorage Daily News included an obituary of a woman who died along with her unborn child. Fortunately, such situations are few due to today=s improved health care and technology. However, there remains a greater risk of maternal death in pregnancy. MS. WISE returned to the issue of the inaccurateness of this bill. For instance, Dr. Coop (ph), a former Surgeon General who is pro-life, found that abortion caused no psychological effects on women. Furthermore, there is no evidence that demonstrates that there is any relation between breast cancer and the instances of abortion. Therefore, this bill is dangerous. She pointed out that women in Alaska already face enormous burdens and challenges even in locating abortion services. Many women must leave their home to have a first trimester procedure, which creates a tremendous financial burden. Therefore, imposition of a 24-hour waiting period magnifies the burden and allows anti- choice extremist to harass women. Ms. Wise said that this legislation dehumanizes, patronizes and shames women. Again, she urged the committee not to pass this bill from committee. In conclusion, Ms. Wise said, AI believe that women are smart enough, responsible enough, capable enough to make their own choices and to take responsibility for them.@ CHAIRMAN KOTT commented that this committee has not had the benefit of hearing from the Department of Law in regard to the constitutionality of this legislation. TAPE 00-54, SIDE B Number 0015 ANNE HARRISON testified via teleconference from Fairbanks. She remarked that [SSHB 329] is ill-conceived; she opposed it as a woman, wife, mother and women=s health care nurse practitioner. In writing this bill, she said, Representative Coghill made an assumption that medically accurate and unbiased information regarding pregnancies is not already being provided by health care providers. However, she informed the committee that since the mid 70s, she and her nursing colleagues and other health care professionals have provided sensitive and medically accurate information in order to assist women in making truly informed decisions about their pregnancies. She said, AThis counseling is standard, time-consuming and is based on professional standards of practice.@ She turned to the 24-hour waiting period, which she believes to be logistically impractical for women due to the unavailability of abortions in home communities. If abortions were available in Alaska=s major population centers, as they once were, the 24-hour waiting period [would] just happen by the way things are scheduled. MS. HARRISON asked the committee to listen to the health care professionals, who have based their testimony on clinical experience and ongoing education. She viewed [SSHB 329] as unbalanced and misinformed. Furthermore, this legislation would promote risks of one option to pregnancy, abortion, without addressing the risks involved in childbirth and adoption. She noted that childbirth, parenting, abortion and adoption all have risks and benefits. In regard to the charges that there is a relation between breast cancer and abortion, Ms. Harrison informed the committee that the American Cancer Society and the National Institute of Health have seen no connections between breast cancer and having had an abortion. In conclusion, Ms. Harrison requested that the committee stop this bill now. Number 0113 EILEEN BECKER, Director, Homer Crisis Pregnancy Center, testified next via teleconference from Homer. She noted that she had given testimony to the House Health, Education & Social Services Committee in the past and she hoped that testimony has been transmitted with the bill. She informed the committee that she is very much in favor of this bill, partially because she deals with women in post-abortion counseling and education. She stated that the women she deals with have not been informed, although she noted that she does not know this for sure. Furthermore, she felt that even if these women are told the basic facts, the state of mind of these woman doesn=t allow them to understand. Therefore, the 24-hour waiting period would allow these women time to consider what they are doing and consider the long-term ramifications in order to make a better decision. MS. BECKER continued. She informed the committee that she encourages women that are determined to have an abortion to get the name of the doctor because often that information is not provided to these women. If they have complications later, these women don=t have a name or a person to return to. Ms. Becker encouraged the committee to obtain copies of these informed consent [documents] and she indicated the need to know the amount of time that is taken [to provide] all this important information. Although she said her greatest challenge is to deal with women after [an abortion], it is her greatest reward when a women returns nine months later to thank her and show her the child. Ms. Becker said that although some of the terminology in this bill needs to be straightened out, the bill, for the most part, is positive in its intent and direction. REPRESENTATIVE MURKOWSKI acknowledged that Ms. Becker provides counseling for women who have had abortions. She asked if Ms. Becker also provides counseling for women who give their children up for adoption. MS. BECKER said that there have been such cases; however, in Alaska very few people give their children up for adoption. In the 14 years, on and off, that she has counseled at the crisis pregnancy center, she has only known of three adoptions. Number 0278 AMY BOLLENBACH testified via teleconference from Homer. Ms. Bollenbach acknowledged that some of these women who have abortions may have regrets afterwards. She informed the committee of the only large scale, long-term study she read, which was a Czechoslovakian study. This was a study that was performed when Czechoslovakia was part of the Soviet Union and although abortion was fairly easy to obtain in Russia, there were several criteria that had to be met in order to obtain an abortion in Czechoslovakia. This study was in regard to women who wanted an abortion, but were refused. A woman who wanted an abortion was someone who requested an abortion of the same pregnancy three different times and had been refused. Interestingly enough, over time most of these women could accept that they had a baby that they had not initially wanted. However, upon study of these children through about age 30, these children experienced more psychiatric problems and more of these children went to jail than children of the same socioeconomic class. In regard to [SSHB 329], Ms. Bollenbach interpreted this bill as [attempting to] prevent women from getting abortions. However, she felt that there are enough problems in Alaska to increase the number of unwanted children. She remarked that Dr. Whitefield=s testimony was excellent. Number 0371 BARBARA CRAVER, Attorney, noted that she is a municipal attorney for the City & Borough of Juneau. She stated that she was not in favor of this bill. She informed the committee that she would address her reasons, as an attorney, in regard to why a person that is Pro-Life would think this is not a good bill. She felt that Pro-Choice [advocates], including herself, would view this bill as another obstacle. However, she believed that a Pro-Life [advocate] could still find this bill objectionable, especially if the person is an attorney. MS. CRAVER pointed out that this bill is repetitive as AS 09.55.556 requires informed consent for every medical procedure, which would include abortions, and the statute further says that a physician who fails to give informed consent would be liable. This bill goes very far in regard to what this legislature believes informed consent should be in the case of a special medical procedure, which is unprecedented. She didn=t believe anyone would disagree that this is a large burden on someone who decides to go through this medical procedure. There is no other 24-hour waiting period on anyone; moreover, informed consent is not defined elsewhere for any type of medical procedure. MS. CRAVER questioned what problem this bill attempts to fix. She believes that the supporters of this bill are well-meaning people. She recalled that Representative Coghill said that he felt that many women are not given information and that he supports the dignity of women and of life. Ms. Craver suggested that the best way to provide information is through education such as sex education in the schools and public information. She emphasized that she didn=t believe there is any evidence that this is a problem in Alaska. There doesn=t seem to be any evidence beyond anecdotal evidence, that women occasionally or maybe even frequently regret [having an abortion]. However, people regret many things in their life and one moves on and does the best he/she can. MS. CRAVER said she didn=t believe that there is anything in the current law that doesn=t support giving informed consent and placing the physician liable for giving a patient fully informed consent. Furthermore, she didn=t believe that this legislation supports the dignity of women but rather singles out women as people who need special help making a serious decision. Ms. Carver said, AI think that me and my physician can make that decision. I think that those who are Pro-Life can feel confident that women do not enter this lightly.@ Therefore, she suggested that even for those who are Pro-Life, there are some legal and procedural reasons why this legislation is repetitious, duplicative and unfairly intrusive on women without any evidence of a problem. Number 0579 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AkCLU), testified via teleconference from Anchorage. She asked if the committee had received a copy of her four-page position paper. CHAIRMAN KOTT replied yes. MS. RUDINGER noted, then, that since the committee has her written remarks she would be brief. She informed the committee that the Department of Law testified in the Senate Judiciary Committee last week that this legislation is unconstitutional. Ms. Rudinger supported [the Department of Law=s] position. She said that it is the AkCLU=s analysis that the Casey case is irrelevant. The Planned Parenthood of Southeastern Pennsylvania v. Casey is a 1992 decision from the U.S. Supreme Court that did uphold a 24-hour waiting period and informed consent provision. She pointed out: However, that legal analysis is not relevant in Alaska court. Alaska is one of several states that evaluate restrictions on women=s reproductive choices under the stricter standard of judicial review established by the U.S. Supreme Court in Roe v. Wade in 1973. Therefore, the Casey analysis and conclusion don=t apply if an Alaska court is going to review HB 329. It=s our opinion that this bill is unconstitutional under the recent Alaska Supreme Court decision in 1997, Valley Hospital Association v. Mat-Su Coalition for Choice. MR. RUDINGER said that beyond the AkCLU=s concerns that [SSHB 329] violates the Alaska State Constitution, there are many reasons why this legislation is poor public policy. She noted that many of her arguments in her position paper have already been eloquently articulated by prior speakers and thus she would only focus on one issue that had not been thoroughly addressed yet, which is the biased counseling requirements. These biased counseling requirements violate standard medical practice and invade the privacy of the doctor-patient relationship. MS. RUDINGER continued. As mentioned by Ms. Craver, she said, this bill requires a doctor to supply all the state mandated information to every women in every instance in order to be safe and avoid liability. However, the state imposed Alitany@ may conflict with the doctor=s ethical responsibility to provide a patient with the best medical advice for that patient and her individual circumstances. She remarked that it is inconceivable that DHSS would be able to develop a pamphlet that would be appropriate for every type of patient in various circumstances. Therefore, even if a doctor feels that this information is not appropriate for a particular woman, the doctor still must Athrust@ it upon the woman in order to avoid liability. For example, she felt that everyone could agree that it is pointless and cruel to inform a rape or incest victim that the Afather@ is financially liable if the woman carries the pregnancy to term. MS. RUDINGER continued. She offered her belief that everyone could agree it would also be cruel to inform a woman with a fetus with severe impairments - such that it could not survive outside of the womb - that the Aunborn child@ would be 20 weeks old at the time of the abortion. Additionally, under this legislation doctors are forced to provide nonmedical information such as the availability of child support; the doctor may not be qualified to speak about such information, and furthermore it is irrelevant to the doctor=s ethical obligation to provide the best medical care [and] advice to a patient. MS. RUDINGER echoed earlier testimony that the American Medical Association (AMA) had resolved to oppose such measures. She also echoed earlier comments in regard to the medically inaccurate definitions included in the bill. She cited the definitions of Afertilization,@ Agestational age@ and Apregnancy@ as being medically inaccurate, which Dr. Isada and Dr. Whitefield attempted to address. Ms. Rudinger said this [legislation] is not something that should be codified into law. Alaska already has regulations and laws in place. In conclusion, Ms. Rudinger strongly urged the committee not to pass the bill as it poor public policy and unconstitutional. Number 0820 FRANCES HALLGREN testified next via teleconference from Delta Junction. Ms. Hallgren remarked that she is insulted by previous testimony in regard to [doctors] knowing which facts she should hear and which she should not. She noted that she is weary of battling doctors that have their own agendas or biases as well as financial interest in regard to women and their rights, health and intelligence. Female doctors as well as male doctors are guilty of insulting women by providing only the facts that support their idea of what a woman should do in a tough pregnancy. Not all doctors are trustworthy. She said that as an intelligent woman, she wanted to know all the facts [in order] to make an informed decision. Furthermore, she believes that the 24-hour waiting period is essential in order that the person can gather all the facts as well as process and assess all those facts before making a decision. She didn=t believe that [the 24- hour waiting period] is an undue burden as this is a decision that will affect the rest of her life mentally, physically and emotionally; that has been proven by many studies over the last few years. MS. HALLGREN related her belief that passage of [SSHB 329] is essential to protect women from those doctors who advance their own views on women. She charged that doctors are making biased decisions [by providing only the information that they believe the woman can handle]. Although doctors probably mean well when they provide the facts that they believe to be pertinent, she suggested that the doctors could provide a patient with all the facts and still provide their counsel and advice. Ms. Hallgren urged the passage of this bill. EMILY JOSLIN testified via teleconference from Delta Junction. She indicated that Akilling babies@ is not right. Number 1013 KAREN VOSBURGH, Executive Director, Alaska Right to Life, testified via teleconference from the Mat-Su Valley. Ms. Vosburgh stated that this legislation is not designed to prevent abortions but rather inform women and men by providing them desperately necessary information. In any medical situation, save this situation [abortion], information is provided about the procedure. However, this situation is probably the most life- changing situation that a woman and man would find themselves in. She stressed, AInformation is not a harmful thing. Information is a good thing.@ She was sure that everyone would agree [that providing information is a good practice]. In regard to the pro- abortion people bringing up rape, Ms. Vosburgh remarked that rape, in relation to abortion, is a very rare instance as it accounts for about 5 percent of all abortions. She informed the committee that 95 percent of abortions are - Athey=re like birth control, I guess is a way to put it.@ MS. VOSBURGH recognized that doctors and nurses are a bit distressed in regard to the meaning and definitions in this bill. However, that can be addressed. She noted that in the House HES committee, one of the doctors didn=t know [the definition] of Afetus.@ The pro-abortion people used Afetus@ as a sterile word; however, Afetus@ is a Latin term meaning "little one." She said, AAnd that=s exactly what they are: they are just very small human beings.@ Ms. Vosburgh mentioned that she personally knew several women who have had abortions and those women were not informed. [The abortion] was a devastating thing from which they are still trying to recover. Therefore, she reiterated the need for women to be informed in regard to this crucial decision. She remarked that several doctors and nurses who believe in this legislation [won=t] be submitting written testimony. MS. VOSBURGH then turned to the issue of breast cancer, which she stressed is significant. She informed the committee that there is a case in South Dakota regarding breast cancer information that was provided to a woman seeking an abortion. The clinic told this woman that the information was not true and that the [breast cancer] studies were sloppy. Although this woman does not have breast cancer, she brought this lawsuit because there are significant findings in several studies. MS. VOSBURGH quoted a Pro-Choice doctor as follows: AI have three sisters with breast cancer and I resent people messing with the scientific data to further their own agenda be they Pro- Choice or Pro-Life. I would have loved to have found no association between breast cancer and abortion, but our research is rock solid and our data is accurate.@ Ms. Vosburgh stated that there is a strong connection between breast cancer and abortion which women need to know. Furthermore, there are over 100 potential complications associated with abortion that women should be aware of. Moreover, the psychological damage is unbelievable. Although pro-abortion people say Ait=s no big deal,@ she informed the committee that to women that have had abortions, it is a big deal and it does change ones life. The least that can be done is to inform these women in regard to what can happen to them physically and psychologically as well as to inform them regarding the development of the baby. CHAIRMAN KOTT asked if anyone else in Juneau or via teleconference, besides the Department of Law, who would like to testify. There being no one, he turned to the Department of Law. Number 1250 KRISTEN BOMENGEN, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law (DOL), noted that the memorandum in the committee packet was prepared because she was unable to attend the House Health, Education and Social Services Standing Committee [meeting]. She recalled that Representative Coghill had indicated the committee might be hearing a challenge to this bill from DOL. However, she pointed out that when DOL appears before legislative committees, the department is generally present to inform [the committees/legislators]. The department has to bring attention to any of the legal infirmities and, in particular, any constitutional difficulties that may be created by a piece of legislation. Therefore, Ms. Bomengen said it is in that role that she appears before the committee today. MS. BOMENGEN turned to the bill before the committee and noted that the most important focus of this bill is the constitutional infirmities that DOL sees. There has been testimony that this bill is constitutional under Planned Parenthood v. Casey. She said: However, the Alaska Supreme Court in the Valley Hospital v. Mat-Su Coalition case explicitly rejected the test of Planned Parenthood v. Casey, which simply requires the state to, in its placing restrictions on abortion availability, to not impose an undue burden. In [the] Valley Hospital case, the [Alaska Supreme] Court instead adopted the Roe v. Wade test, which determines that abortion is a fundamental right that can be legally constrained only when those constraints are justified by a compelling state interest not simply a legitimate interest or even a substantial interest, but a compelling state interest and that no less restrictive means could advance this interest. MS. BOMENGEN recognized that there are a number of states that have imposed restrictions [such as those contemplated in SSHB 329] and they have withstood some challenges under those state constitutions. However, when the case comes before the Alaska Supreme Court, one can be fairly certain that many of these restrictions would not be found constitutional under the Roe v. Wade test, in particular the 24-hour waiting period. Number 1430 MS. BOMENGEN informed the committee that by creating this legislation, there will inevitably be a cost to the state. In general, DOL does not submit a fiscal note when it would be based upon the speculation of a lawsuit being brought. However, it is very likely that a constitutional challenge will be leveled against this legislation and thus there will be a cost. The department conservatively estimates that the cost would be in the range of $50,000 and if the suit were lost, that amount would, at a minimum, be doubled. MS. BOMENGEN turned to Section 1, which contains some inaccuracies of fact that the department [DHSS] would be required to place in the pamphlet. She also said that she would focus on the inaccuracies of the definitions. She noted, AI=m not a medical person so I don=t have all of the information, but what the most accurate medical definitions would be.@ However, the current definitions of Afertilization@ and Aconception@ are confusing and there is no reference to implantation. Therefore, this legislation would, at a minimum, create confusion in the administration of other statutes related to abortion rights. She directed the committee to the definition of Aabortion@ in AS 18.16.090. In the case of emergency contraception [and] IUDs a great deal of confusion would be created in how these laws would be administered. Physicians would be left in a quandary regarding their obligations under the law. MS. BOMENGEN continued by addressing the problem that [the definitions] raise under Section 3, which imposes civil liability for compensatory and punitive damages - that can be considerable - for not providing specific information. She echoed earlier comments that this would have a chilling effect on the availability of abortions in certain jurisdictions in which the providers were uncertain of the law. Therefore, it would probably have a chilling effect on the availability of practitioners willing to risk their medical practice to provide [abortion services]. Number 1638 REPRESENTATIVE CROFT pointed out that Section 3 refers to AA person who performs or induces ...@. He stated that if a doctor is incorrect in his/her estimate of Awhen medically accurate@ on page 4, line 20, or Awhere appropriate@ on page 4, line 23, then the doctor would have committed what would seem to be close to a strict liability crime under Section 3. MS. BOMENGEN agreed that is a risk with the current language. She pointed out that Aknowingly@ only appears on page 4, line 11, as a lead in to the requirements of [AS] .060. Again, physicians are put in a quandary regarding what is known and what can be known when there is so much disagreement regarding what is medically accurate. She predicted that a constitutional challenge on that basis would probably be lost. Number 1742 MS. BOMENGEN turned to [Section] 2 and noted that there has been some confusion regarding what [Section] 2 achieves. All of the provisions of AS 18.16.010 are fully set out with the addition of paragraph (5) at the bottom of page 3, which is the provision that really imposes the 24-hour waiting period and the signed informed consent requirements. As pointed out in her letter, Ms. Bomengen felt that it could be appropriate to revisit [Section 2, paragraphs] (2) and (4) as there are problems with the constitutionality of those two. [Section 2, paragraph] (3) is presently under challenge and [paragraph] (1) may or may not be [challenged] and she didn=t believe there is an opinion as to whether that is constitutional. Therefore, if these provisions are going to be set out again, it may be appropriate to address those issues that the legislature and the state has been informed about regarding the constitutionality of those provisions. In regard to Section 3 of the bill, she pointed out that physicians are already subject to liability for any negligence. Furthermore, physicians do inform and obtain consent [in order] to meet the requirements of sound medical practice. Number 1878 MS. BOMENGEN moved on to Section 4 and noted that there is one concern which was not mentioned in the letter. Alaska Statute 18.16.060(b) lists a number of items that must be met before someone can sign the informed consent. Section 4, paragraph (3), which requires the woman to be given a copy of the pamphlet as described in the bill, poses a problem in the case of a woman that doesn=t wish to be given the pamphlet. Therefore, she suggested that it may be more appropriate to make the pamphlet available to the woman versus thrusting it into her hands. Ms. Bomengen cited another concern with Section 4 in that the emergency provisions do not make any explicit reference to the psychological health of the woman. Inclusion of a provision regarding the psychological health of the woman would be more constitutionally sound. REPRESENTATIVE CROFT directed Ms. Bomengen to page 4, lines 9-13. He asked if Ms. Bomengen read Section 4(a) to mean that if this is complied with, one may, in the case of a medical emergency, perform [an abortion]. Although it seems to be in the negative, it would cause problems either way. He inquired as to how Ms. Bomengen read that section; does one have to comply with subsection (b) in a medical emergency. He asked if the bill is silent in regard to a medical emergency as the bill does not refer to Ain the case of a medical emergency, you shall@. MS. BOMENGEN agreed that the bill does not say that. However, the language AExcept in case of a medical emergency@ would be useful in [supporting] that these provisions would not be required. REPRESENTATIVE CROFT agreed and asked if there is any place in the bill which specifies what has to be done in a medical emergency. MS. BOMENGEN answered that she didn=t believe that there is anything [in the bill] that clarifies that. Number 2161 REPRESENTATIVE KERTTULA related her understanding that under Alaska=s constitution, Alaska has broader rights and Alaska=s court has chosen to follow an earlier decision, Roe v. Wade in regard to determinations about abortion. MS. BOMENGEN agreed with Representative Kerttula=s understanding. She informed the committee that when the legislature was considering a number of abortion-related bills in 1997, that was prior to the Valley Hospital decision. The Valley Hospital decision clarified which test would be applied to the restraints placed on abortion rights in the State of Alaska. It was noted [in the Valley Hospital decision] that the Alaska State Constitution, Article I, Section 22, provided that. Number 2253 REPRESENTATIVE COGHILL came forward to provide some closing remarks. He thanked the committee for hearing the bill and noted that he is not a constitutional lawyer. He maintained that what the committee heard [from the Department of Law] was a challenge. Furthermore, he felt that some of the Supreme Court cases at the national level would challenge some of Alaska=s Supreme Court rulings and he would be willing to assert some of that. REPRESENTATIVE COGHILL stated that this bill is about getting the best information for a woman who is legally able to consent to an abortion. He said that he had no problem with that and affirmed that he is Pro-Life. This is a national debate and thus he felt that elevating this issue to this degree is not wrong. He remarked that the reason some charge that the information [being given to these women] is biased is because those folks are on the other side of the issue. He informed the committee that [in the pamphlet] he would include the gestational age of the baby as it is the very reason Awe@ have the preamble to the [Alaska State] Constitution, which he read as follows: We the people of Alaska, grateful to God and to those who pioneered this great land, in order to secure and transmit to succeeding generations our heritage of political, civil, and religious liberty within the Union of States, do ordain and establish this constitution for the State of Alaska. Furthermore, Article I says that people have Athe principles that all persons have a natural right to life@. Therefore, he felt that the state does have a compelling interest to show the life in the gestational period. He acknowledged that this is a debate that will rage nationally as well as locally. However, he indicated that this debate should occur here [in the legislature] as it is the branch of government in which the people have their say. [A small portion of Representative Coghill=s remarks were not recorded due to a tape change.] TAPE 00-55, SIDE A REPRESENTATIVE COGHILL reiterated the need for women to have the best medical information possible. Although he recognized that everyone is not going to agree on this issue, he stressed that providing information to women facing this choice is not against women. He affirmed that he is asking that life be valued. He charged that if eagle eggs were being smashed, [society] would find out how much the progeny of eagles is valued and thus they would be protected. He stated that this is not necessarily about protecting the baby, although he would purport to do so, but rather getting at the information. On that point, he agreed that education is an answer. From the home to school to adulthood, it should be taught how to properly produce or not produce, if one so chooses because once there is the production, there is the responsibility. This [legislation] provides information about that responsibility. In regard to whether this is targeted at women, Representative Coghill said yes because only one gender produces. In conclusion, Representative Coghill thanked everyone who testified. Number 0204 CHAIRMAN KOTT asked if there were questions for the sponsor. There being none, he closed the public debate. He noted that the committee had only, in the last hour-and-a-half, received the comments of the Department of Law regarding the constitutional issues. Therefore, he believed it prudent to review these issues. Chairman Kott announced that [SSHB 329] would be held.
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