Legislature(1997 - 1998)
02/20/1997 08:21 AM House STA
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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 The first order of business to come before the House State Affairs Standing Committee was HB 65, "An Act relating to partial-birth abortions." Number 027 REPRESENTATIVE PETE KOTT, Alaska State Legislature, stated the intent of HB 65 was clear. There were comments made during the testimony that needed to be clarified, especially the comments surrounding the constitutionality of the bill by the attorney general's staff. He called on George Dozier, Jr., Legislative Assistant to Representative Pete Kott, to cover the finer points of the bill. Number 045 GEORGE DOZIER, JR., Legislative Assistant to Representative Pete Kott, stated that the House State Affairs Standing Committee took testimony from two attorneys regarding the constitutionality of the bill. Janet Crepps, The Center for Reproductive Law and Policy, indicated that HB 65 was "patentably unconstitutional." Kristen Bomengen, Department of Law, indicated that the bill was unconstitutional. "Madame Chair, I am confident that both of these individuals testified in good faith, and honestly and sincerely believed that they are correct in their assessment of HB 65." Mr. Dozier, Jr. was equally confident that both of these attorneys in their assessment were incorrect. House Bill 65 was not unconstitutional either under the federal constitution or the state constitution. MR. DOZIER, JR. explained that the Fourteenth Amendment included a right to privacy, and that this right was broad enough to encompass a woman's decision to obtain an abortion. The court also held that the right to decide to have an abortion was not absolute. The right was limited by the legitimate interest of the state or to protect potential human life. The Roe v. Wade court indicated tha the state could not interfere with a woman's decision to obtain an abortion during the first-trimester. However, after the first- trimester it could regulate to protect the woman's health, and after viability the state could regulate or proscribe abortion, except where necessary for the life or health of the mother. The Roe court specifically and expressly rejected an argument that "a pregnant woman is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she chooses." MR. DOZIER, JR. further explained that the court found the state had a substantial interest in potential human life in the Planned Parenthood v. Casey case. The interest extends throughout the pregnancy. The court also found that the opinions subsequent to the Roe v. Wade case undervalued the state's interest in potential human life. Consequently, the Casey court rejected the rigid trimester system established by the Roe court. It instead divided the pregnancy into two periods: pre-viability and viability. The Casey court indicated that during the pre-viability period the states could not place an "undue burden" on a woman's right to decide to terminate a pregnancy. The Casey court defined the term "undue burden" as regulations that either had the purpose or the effect of placing a substantial obstacle in the path of a woman seeking the abortion of a non-viable fetus. The Casey court indicated that "subsequent to viability the state in promoting its interest in the potentiality of human life may if it chooses regulate and even proscribe abortion, except where necessary, in appropriate medical judgement for the preservation of the life or the health of the mother." In summary: First, the state had a substantial interest in potential human life that extends throughout a pregnancy. Second, prior to viability the state could not place an undue burden on the right to pregnancy, which means placing a substantial obstacle in the path of a woman seeking an abortion. Third, after viability the state could regulate abortion or even prohibit abortion, except where necessary for the life or the health of the mother. MR. DOZIER, JR. further stated that since partial-birth abortions span the last part of the pre-viability stage and extended all the way through the viability stage, HB 65 was designed to cover both periods. Hence, it must be analyzed with regards to both standards. He declared, "With all due respect, House Bill 65 more than meets those standards". House Bill 65 did not place an undue burden on the right to choose an abortion. It did not place a substantial obstacle either by intent, or in effect, in the path of women seeking abortions. It did not proscribe abortion, per say. It merely made one particular type of an abortion illegal. And, "I may add, a particularly egregious form." He further stated, "All other forms of abortion remain open to pregnant women." As the testimony from Dr. Peter Nakamura, Department of Health and Social Services, indicated, partial-birth abortions have not been performed in Alaska and would probably never be performed in the state. Thus, "Does House Bill 65, which prescribes an abortion which is not done in Alaska, place a substantial obstacle in the path of women seeking abortions in Alaska?" The answer by definition was, "No." The procedure was simply not available anyway. Was it really a substantial obstacle to require abortionists to conform to the standards already present and accepted? he wondered "That to my mind is no obstacle at all, let alone a substantial one." In short, all of the options presently available to women to obtain an abortion remain unaffected. Therefore, the first standard, applied to pre-viability pregnancies, was clearly satisfied. MR. DOZIER, JR. further explained the second standard that applied to viable babies was also satisfied. He reiterated, the Supreme Court recognized that the state could regulate or even proscribe an abortion, except where necessary to preserve the life or health of the mother. House Bill 65 did not ban an abortion during this period, it merely banned a particular procedure. Therefore, it was more of a regulation than a proscription. House Bill 65 also contained an expressed exception applicable to the life of the mother. It did not mention the health of the mother for the following reasons: All forms of abortions presently in Alaska remain in effect, and a ban would not adversely impact the health of the mother as numerous evidence indicates. There were no obstetrical situations which require a partial-birth abortion to preserve the life or the health of the mother. In addition, Representative Kott indicated that the American Medical Association (AMA) voted-unanimously-to recommended the endorsement of the federal partial-birth ban. "In so doing it stated that the procedure was repulsive and is not a recognized medical technique." The former Surgeon General, C. Everett Koop, stated that "in no way can I twist my mind to see the late-term abortion as described, you know, partial-birth and then destruction of the unborn child before the head is born is a medical necessity for the mother." He reiterated partial-birth abortions were not necessary for the health of the mother. MR. DOZIER, JR. further stated that the legislature could conclude that partial-birth abortions were not necessary to preserve the health of the mother, and indeed could be inimicable to the health of the mother. Therefore, the pre-viability and the post-viability standards required by the Casey decision were satisfied. In addition, there were several permissible and compelling state interests that were advanced by HB 65. He cited, the cruelty and the gruesome act of sticking scissors into a baby's head. The state had a very strong interest in protecting human life from such cruel and gruesome actions. He also cited, a partial-birth abortion tended to mix the roles of physician and abortionist. A physician was considered a healer, while an abortionist was not considered a healer. He was concerned that in mixing these two opposing roles there would be a great danger that public confidence in the medical profession would be undermined. He also cited, a partial-birth abortion was inherently disrespectful of human life and dignity. In addition, the state had a vital interest in drawing a clear distinction between a legal abortion and infanticide. The partial-birth abortion blurred that distinction. "In my opinion, partial-birth abortions are fully constitutional under the guidelines established by the United States Supreme Court." MR. DOZIER, JR. turned to the arguments made by Ms. Janet Crepps and Ms. Kristen Bomengen. Ms. Crepps argued that HB 65 created an undue burden because partial-birth abortions were the safest procedure. He called that statement questionable. The committee members had been provided with an abundance of materials indicating that partial-birth abortions were not necessary for the health of the mother and actually presented a risk to her. Ms. Crepps also argued that the Supreme Court in the Planned Parenthood v. Danforth case held that the use of saline amniocentesis was unconstitutional because it forced the doctor to use a more dangerous method. And, HB 65 involved the proscription of a defined abortion procedure like in Danforth. However, Danforth he stated, was clearly distinguishable on three different grounds. First, HB 65 did not force women to use procedures that were less safe than partial- birth abortions. Second, the Danforth court emphasized that the proscribed method was the most prevalent available. In HB 65 the proscribed method was not even used in Alaska and other safe methods were available. Third, the Danforth court predated the Casey court; therefore, the analysis focused on whether the state advanced maternal health. The Casey court changed all that. Now, it is recognized that the state's interest could be asserted throughout a pregnancy. He declared, "House Bill 65 does just that. And, it may be expected that the right to assert that interest by the state would be weighed in any constitutional challenge. Danforth, quite simply, is distinguishable." Ms. Crepps further argued that the only court to review or ban a similar procedure in HB 65 invalidated it because for some women the prohibited procedure would be safer than other available procedures that was in the Women's Medical Professional Corporation v. Voinovich court case. The court held that D&X was safer than other methods and because it was more available than induction methods, its proscription was a substantial burden and therefore, unconstitutional. The House State Affairs Standing Committee had ample evidence to base a decision on safety. "Indeed the only medical testimony presented suggesting a need for a D&X procedure or partial-birth was presented by two doctors who clearly were not talking about partial-birth abortions. They appeared to be talking about late-term abortions in general." Moreover, the House State Affairs Standing Committee could not find, given the testimony of the Public Health Director, that partial-birth abortions were more prevalent than any other method in the state of Alaska. "In Alaska partial-birth abortions are simply not being done right now." Finally, Ms. Crepps argued that the privacy clause of the Alaska State Constitution would be violated by HB 65. "I don't know how she can be so certain about this," he declared. The Alaska Supreme Court had not yet decided an abortion case using this constitutional provision. The right was broader than the privacy right found by the court in the U.S. Constitution, but it was not absolute. And, "Certainly the right to privacy is not violated when an alleged abridgement is justified by a legitimate and compelling governmental interest." He stated, the government had a compelling interest to protect almost-born babies and to protect public confidence in the medical profession by not blurring the roles of physicians and abortionists. The government also had a compelling interest to protect the almost-born from this cruel, gruesome and undignified death. MR. DOZIER, JR. stated that Ms. Bomengen argued that the D&X procedure was the safest method; so, it was subject to constitutional challenge. He reiterated that there was amble evidence presented to the committee members that indicated D&X was not the safest procedure. Ms. Bomengen also argued that the definition was broad because it could encompass procedures other than partial-birth abortions. The definition in HB 65 does not overlap alternative methods. Ms. Bomengen also argued that the definition was vague. The definition in HB 65 is clear and precise. It establishes definitively what is proscribed, and persons of common intelligence can easily understand what is prohibited. "Thus there will not be a chilling affect. I think Ms. Bomengen has in mind a definition that was used in the statute examined by the court in Voinovich back in Ohio." The court, quite rightly, concluded that there was an overlap and that the statute was vague. But, the definition employed in the Ohio case does not resemble the definition in HB 65. "The termination of a human pregnancy by purposefully inserting a suction devise into the skull of a fetus to remove the brain, dilation and extraction procedure does not include either (indisc.--coughing) procedure of abortion of the suction aspiration procedure of abortion." The court found that this definition overlapped a normal D&E procedure because both involved inserting a section devise into the skull. Furthermore, the absence of the mental component of a criminal statute was somewhat persuasive. In HB 65 there was no expressed mental component; the required state of mind was knowingly. Ms. Bomengen's concerns regarding vagueness were misplaced. House Bill 65 does not resemble, in any respect, the statute considered by the Voinovich court. House Bill 65 was clear, precise and did not overlap any other abortion procedure. Finally, because it is clear there is no danger of arbitrary or discriminatory enforcement. MR. DOZIER, JR. concluded that in his judgement House Bill 65 would pass constitutional muster. Number 465 REPRESENTATIVE ETHAN BERKOWITZ asked Mr. Dozier to distinguish between a partial-birth abortion and a late-term abortion? Number 470 MR. DOZIER, JR. replied that a partial-birth abortion could be either a pre-viable or a post-viable abortion. A partial-birth abortion could be a late-term abortion also. House Bill 65 did not proscribe late-term abortions; it only proscribed a certain procedure. Number 476 REPRESENTATIVE BERKOWITZ stated that Mr. Dozier, Jr. indicated the two doctors that testified described a late-term abortion. Number 478 MR. DOZIER, JR. replied, "Yes." That was what they had in mind. Dr. Nakamura also indicated that they were referring to late-term abortions. Number 486 REPRESENTATIVE BERKOWITZ stated that the doctors who would be guided by this law were confused thereby satisfying the vagueness issue. He asked Mr. Dozier, Jr. to respond. Number 490 MR. DOZIER, JR. referred the committee members to page 1, lines 11- 13, and read "(c) In this section, `partial-birth abortion' means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery." He asked Representative Berkowitz what was unclear about that definition? Number 499 REPRESENTATIVE BERKOWITZ replied that the doctors who were to be guided by the law and who testified interpreted it as a ban on their procedures that they had practiced. Yet, Mr. Dozier, Jr. indicated that the procedures that they practiced did not constitute a partial-birth abortion. Yet, the fact that they were confused chilled their actions. Therefore, the bill was void for vagueness. MR. DOZIER, JR. wondered if that was a question or a comment. Number 509 CHAIR JAMES asked Representative Berkowitz if his comment was also his position? REPRESENTATIVE BERKOWITZ replied that was his question. CHAIR JAMES stated that Mr. Dozier, Jr. already answered that question. He believed it was very clear. She asked Representative Berkowitz if he believed it was unclear? Number 512 REPRESENTATIVE BERKOWITZ replied he believed it was unclear. He believed if the bill was rewritten it could be clearer. Number 514 CHAIR JAMES asked Representative Berkowitz to explain what was not clear. Number 515 REPRESENTATIVE BERKOWITZ replied there were several issues unclear. First, the legal history that Mr. Dozier, Jr. recited described the procedures in terms of pre-viability and viability thereby injecting the new term "living." Second, doctors who were to be guided by the statute interpreted it in such a way that their actions would be banned thereby creating a chilling effect. Number 526 REPRESENTATIVE BERKOWITZ asked Mr. Dozier, Jr. why the term "living" was not being used and instead the terms "pre-viability" and "viability?" Number 530 MR. DOZIER, JR. replied because the term "viability" was irrelevant to what was being proscribed in HB 65. The bill was constitutional regardless of whether it was applied to a pre-viable fetus or a viable fetus. MR. DOZIER, JR. further stated that there were certain practical difficulties when applying a partial-birth abortion early on. For example, the fetal tissue would be too tender to manipulate. Number 545 REPRESENTATIVE BERKOWITZ asked Mr. Dozier, Jr. if there was a legal definition of the term "living?" Number 547 MR. DOZIER, JR. replied he thought Representative Berkowitz was suggesting that the definition was too vague because the bill did not define the term "living." A statute passed constitutional due process muster if it was certain enough so that it would apprise people of common intelligence of what was being made illegal. "I don't think that there is a doctor alive, let alone a man, woman, or child alive in the United States that doesn't know what living is. I don't think that living is necessary to be defined." For example, the bill would not apply to a dead fetus in a mother's womb. But, if the fetus was still alive and partially delivered vaginally then killed, the bill applied. Number 565 REPRESENTATIVE BERKOWITZ stated Mr. Dozier, Jr. indicated that the Voinovich court made finding of fact. Number 566 MR. DOZIER, JR. replied, "Yes, I did." REPRESENTATIVE BERKOWITZ further stated that the court indicated the partial-birth procedure was safe or could be the safest method. Number 569 MR. DOZIER, JR. replied, "I don't believe that the court actually made that determination." The case was a request for an injunction. The court had to decide if it was likely that once this matter went to a full trial that the plaintiff would prevail in court. The court issued the injunction. He did not know if the issue went to full trial, however. The legal history was not available. Number 587 REPRESENTATIVE BERKOWITZ said he misunderstood when Mr. Dozier, Jr. stated, "In all candor the finding of fact." He asked Mr. Dozier, Jr. for a copy of his testimony. MR. DOZIER, JR. replied he did not have a copy of his testimony; he was referring to written notes only. REPRESENTATIVE BERKOWITZ stated his written notes would be fine. MR. DOZIER, JR. replied he had private notations written on the pages. Number 596 CHAIR JAMES stated she would not compel Mr. Dozier, Jr. to give Representative Berkowitz his notes. A tape recording of the meeting was available. REPRESENTATIVE BERKOWITZ stated he did not care to have his private notes. A computer print out would be fine. CHAIR JAMES stated her decision had been made. She reiterated a tape recording of the meeting was available. REPRESENTATIVE BERKOWITZ noted for the record the cooperation of Mr. Dozier. Number 602 REPRESENTATIVE MARK HODGINS moved that HB 65 move from the committee with the attached fiscal note(s) and individual recommendations. Number 604 REPRESENTATIVE BERKOWITZ objected. REPRESENTATIVE BERKOWITZ stated that the bill as it was written constituted an unwarranted governmental intrusion that abridged the rights of Alaskan women, doctors and families. This was not an abortion issue, it was a medical issue. In addition, testimony before the U.S. Congress indicated the medical necessity for this procedure. And, no one disputed the gruesome fashion of this procedure. There was no testimony, however, before the House State Affairs Standing Committee that indicated this was how the procedure was performed. The sponsor relied on the testimony of Nurse Shafer, of which, information indicated that her credibility was questionable. He found it difficult that the committee members would accept, without question, the testimony given in another body. Moreover, this issue was also a question of faith. There were many different position of faith. He read a list of churches that supported this type of procedure. "For me this was a question of faith in that I have faith in the constitution. And, I believe the constitution adequately circumscribes the procedures that are in question here." He urged the committee members to make a fair inquiry into what this issue was about. He reiterated this was not a question of an abortion, but of a medical procedure. He further stated that if the bill was well written there were ways he could support it. He also stated that this was a reason why a dialogue needed to occur between the members of the majority and the minority; there were middle grounds and alternatives. Number 654 CHAIR JAMES asked Representative Berkowitz if he was insinuating that the dialogue did not happen? Number 655 REPRESENTATIVE BERKOWITZ replied, "I just caution that when the minority is silenced it tends to result in a tyranny of the majority." Number 658 CHAIR JAMES asked Representative Berkowitz if he was suggesting that the minority was silenced? Number 660 REPRESENTATIVE BERKOWITZ replied, "I fell that I have been silenced in this committee." And, he also felt that given proper time he could have elicited testimony that would have helped him to rewrite the bill. CHAIR JAMES replied let's get back to the point. Let's get back to Representative Berkowitz's distress of the bill. REPRESENTATIVE BERKOWITZ further stated that the bill was void for vagueness. It would not pass constitutional muster. It endangered the health and well being of Alaskan women unnecessarily. It was not even practiced here in Alaska. "I think this is an exercise in political grand standing that we ought not be engaged in." The record reflected the arrival of Representative Al Vezey at 9:00 a.m. Number 664 CHAIR JAMES stated that she would vote to pass the bill out of the committee because it prohibited a gruesome procedure that was available when the life of the mother was at stake. The bill only prohibited the procedure when it was elected by the mother. It did not necessarily involve a threat to life of the mother. CHAIR JAMES called for a roll call vote. Representatives James, Dyson, Hodgins, Ivan and Vezey voted in favor of the motion. Representative Berkowitz voted against the motion. House Bill 65 was so moved from the House State Affairs Standing Committee.
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