Legislature(1995 - 1996)
03/22/1995 09:04 AM Senate HES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SHES - 3/22/95
SB 105 PARENTAL CONSENT BEFORE MINOR'S ABORTION
Number 237
CHAIRMAN GREEN introduced SB 105 as the next order of business
before the committee. She indicated that this bill would be heard
for approximately an hour.
SENATOR LEMAN noted the presence of a Lauterbach memo in his packet
on which he may want to comment.
TERRI LAUTERBACH, Division of Legal Services with the Legislative
Affairs Agency, stated that she was present to answer legal
questions; she neither supported or opposed the bill.
SENATOR MILLER referred to the 3/13 memo from Ms. Lauterbach and
indicated that he had questions.
SENATOR ELLIS suggested that Ms. Lauterbach could summarize her
memo in order to set up for any questions. After Senator Leman
noted that he, Senator Miller, and Senator Ellis had read the memo,
Senator Ellis said that perhaps questions could be taken first and
then Ms. Lauterbach could summarize the memo.
SENATOR MILLER asked if Ms. Lauterbach was specifying in her memo
that SB 105 may be unconstitutional in the Alaska Supreme Court due
to Alaska's Right to Privacy clause in the constitution. TERRI
LAUTERBACH replied that yes, the right to privacy in Alaska's
Constitution is more explicit that the protection of privacy under
the federal constitution. California and Florida both have
explicit privacy clauses; those states have found through state
court cases that this type of parental consent is unconstitutional
under their state constitutions.
SENATOR MILLER asked if a minor would be afforded the same privacy
rights as an adult. TERRI LAUTERBACH said that was her
understanding. California and Florida found it so and there would
be no reason to believe Alaska would find it differently.
SENATOR MILLER asked Ms. Lauterbach if a court would find health
care to be a constitutional right. TERRI LAUTERBACH did not see
the relevancy. SENATOR MILLER explained that the issue of health
care would be relevant because all the other parental involvement
statutes for some type of medical care would be cast into doubt.
TERRI LAUTERBACH pointed out that there is already a statute that
allows minors to consent to their own medical care for pregnancy
related conditions.
Number 302
SENATOR LEMAN stated that there are 22 areas in Alaska Statutes in
which parental consent or notice would be required. He asked if
those statutes would also be considered unconstitutional. TERRI
LAUTERBACH explained that reproductive rights and the ability to
control one's pregnancy are the types of health care which have
been found by courts to require a compelling state interest to
require parental consent. Ms. Lauterbach did not know if the other
parental consent situations required a compelling state interest.
Under Roe vs. Wade and decisions since then, this type of health
care has been found to be a fundamental right.
SENATOR LEMAN noted that he had requested and received other legal
opinions that draw different conclusions than that of Ms.
Lauterbach. He stated that this issue may end up in litigation.
In response to Senator Salo, TERRI LAUTERBACH agreed that other
medical issues are not treated by the court in the same manner as
reproductive issues. Ms. Lauterbach clarified that she had not
researched other medical issues; she had been asked to research
abortion decisions.
SENATOR SALO asked if a minor in Alaska could legally be treated
for a sexually transmitted disease confidentially. TERRI
LAUTERBACH said yes, that is in the same statute. Ms. Lauterbach
believed that there was no question that privacy is implicated in
this type of statute. There is also no question in the court
decisions of California and Florida that the state has an interest
in protecting the health of minors and in encouraging parent-child
relationships. Ms. Lauterbach clarified that the Florida court
found that those interests were not compelling enough to override
the privacy interest. The California court found that the interest
was compelling, but the legislation does not promote them. In
conclusion, Ms. Lauterbach explained that it ultimately depends
upon the type of evidence that could be presented on both sides.
Number 352
CHAIRMAN GREEN inquired of Ms. Lauterbach's reference to the
state's compelling interest; is that opposed to the parental
interest? TERRI LAUTERBACH specified that she referred to the
state's compelling interest as opposed to the state's interest in
promoting the legislation. Ms. Lauterbach clarified that the
interest which has been asserted to be protected by this type of
legislation is the protection of the minor's psychological and
physical health, the promotion of the parent-child discussion
regarding health care, the increase in the medical information or
history available if a parent is involved, and the ability to guide
a minor's decision in such a decision. The courts have found those
to be important state interests to be advanced by legislation.
CHAIRMAN GREEN asked what state interest meant. TERRI LAUTERBACH
defined state interest as a state's reason for imposing special
requirements on a minor's decision to seek an abortion. There must
be a public purpose involved in any legislation which would limit
someone's rights or abilities to exercise a decision about their
own care. SB 105 would impose a limit on what minor's could do
regarding these kinds of decisions; therefore, the state needs a
rational or compelling reason to place those limits.
SENATOR ELLIS requested that Ms. Lauterbach's legal opinion be sent
to the teleconference sites. He felt that it was important to
contact legal services for an opinion on this legislation. He
indicated the need to have other legal opinions before the
committee as well. SENATOR LEMAN said that he would pass out those
opinions to which he had earlier referred. CHAIRMAN GREEN agreed
to send the legal opinion to the teleconference sites.
SENATOR MILLER summarized that Ms. Lauterbach believed that the
court may find SB 105 unconstitutional, however, if the state could
illustrate compelling interest then the Alaska Supreme Court could
find the legislation constitutional. TERRI LAUTERBACH pointed out
that the memo says that those interests are compelling; the issue
is whether or not the evidence could show that those interests are
advanced by the legislation.
SENATOR MILLER asked if in Ms. Lauterbach's opinion, if the state
could do that then the Alaska Supreme Court could find SB 105
constitutional. TERRI LAUTERBACH replied yes.
Number 404
SENATOR SALO expressed interest in going through Ms. Lauterbach's
opinion for a summary. This legislation does infringe upon the
personal rights of minor women in Alaska. She requested that Ms.
Lauterbach speak to those personal rights and the privacy clause in
the Alaska Constitution.
TERRI LAUTERBACH stated that Senator Salo's assessment was correct
in that there is an infringement on the rights of minor women. The
issue is whether the infringement can be justified. If the same
type of evidence is presented in Alaska that was used in the
California case, the Alaska case would seem to end in the same
results. She pointed out that a representative of the Attorney
General's office was present and perhaps their opinion would be
more appropriate.
SENATOR SALO inquired as to how Alaska's privacy clause compared to
those in California and Florida. TERRI LAUTERBACH noted that she
had not made a word for word comparison. The main point is that
those states' constitutions explicitly set forth a privacy clause
as does Alaska's Constitution while the federal constitution does
not. The right to privacy under the federal constitution is an
unstated intangible right. When a state explicitly sets a privacy
right, those states usually have a higher standard for
infringement.
SENATOR LEMAN emphasized that SB 105 does not infringe upon those
rights. SB 105 provides a judicial by-pass for what is currently
in state law which is the parental consent provision. The
infringement is in existing state law, which is not enforced.
SB 105 makes existing law operable; the restriction already exists
in the current law.
CHAIRMAN GREEN moved on to public testimony and requested that
testimony be limited to two minutes.
Number 462
ROBIN SMITH, testifying from Anchorage, stated that she wished
there were fewer abortions, however, abortion cannot be legislated
into extinction. Men participate in sexual intercourse as well as
women, although women usually suffer the consequences. She
informed the committee that 30 percent of fathers of babies born to
girls under 16 are fathered by men in their twenties and older.
Condoms are the only cheap, easy to use, effective, safe, non-
prescription method of contraception; the male partner must chose
to use it. Rape and incest force women into pregnancy. She
reiterated that good family interactions and communication cannot
be legislated.
Ms. Smith asserted that SB 105 delays and potentially complicates
the situation. She suggested encouraging not legislating more
parental involvement in our children's lives. Be better role
models. She emphasized the need to make men as responsible for
child rearing and financial support as women. She stated that
abortion was merely a symptom of unwanted pregnancies. Prevent the
pregnancies, do not complicate the situation. She requested that
SB 105 not be passed.
BETTY KREMER stated that she supported SB 105. She expressed the
need to enforce parental involvement in such an important issue.
Abortion is a dangerous medical procedure. She said that tubal
pregnancies are responsible for 20 percent of the maternal deaths;
many studies show that is roughly doubled for women who have had an
abortion. She noted that women who have abortions in the first
trimester have approximately twice the risk of obtaining breast
cancer. She indicated that a legal abortion was not a safe
abortion. Women who seek reproductive freedom through abortion may
damage or lose their reproductive ability. SB 105 ensures parental
involvement.
SENATOR SALO asked Ms. Kremer if she felt that her daughter would
consult her on an issue as serious as pregnancy. BETTY KREMER said
that her older daughter would, but that her younger daughter would
eventually in time. In response to Senator Salo, Ms. Kremer said
that she did not believe that a state law would be needed in order
for her daughters to talk to her about this. Ms. Kremer was
concerned for other parents, the first person a child talks to is
very important and very influential.
Number 523
NATASHA CALVIN, representing Sitkans for Choice, opposed SB 105.
She addressed the testimony from Monday's hearing in which someone
discussed the alleged medical and psychological dangers to young
teens who had abortions. Data gathered under former Surgeon
General, Edward Coupe, determined that carrying a pregnancy to term
is 7 to 25 times more likely to result in the death of the woman
than a first trimester abortion. The figures would worsen for a
pregnant teen. The American Psychological Association reported
that abortion does not cause more psychiatric problems than an
unwanted pregnancy. She pointed out that all this information was
in the "Federal Role in Determining the Medical and Psychological
Impact of Abortion in Women," Report 102392 of the 101st Congress.
Ms. Calvin informed the committee that the suicide rate of teen
parents is seven times that of teens that are not parents.
Pregnant teens seeking refuge in the Anchorage Salvation Army
frequently have been physically and sexually abused. In 1987, nine
babies of teen mothers in Alaska died before their first birthday.
Babies, of teen mothers, surviving past the neonatal period, are
more likely to be hospitalized, to die of injuries and infections.
Teen pregnancy in Alaska is a crisis. She expressed the need to
work to prevent pregnancy.
FLOYD SEEKINS, Chairman of the Homer Crisis Pregnancy Center,
supported the passage of SB 105. He stated, from experience, teens
need help with pregnancy. He felt that these teens would be better
served if they consulted with their parents or a court appointed
person. There needs to be consistency in the treatment of parental
involvement. He said that in most cases, parents would know best.
For the preservation of family and state unity, Mr. Seekins
supported passage of SB 105.
Number 571
DR. CLAIRE VIVIER-MINES, a Gynecologist testifying from Fairbanks,
spoke to the health care ramifications of abortion. She addressed
the danger of abortion. In her experience, abortion is one of the
safest operations. She explained that the general safety of any
operation would depend upon the following factors: the training
and experience of the operator, the length of the gestation in
which the abortion is performed...
TAPE 95-19, SIDE B
Dr. Claire Vivier-Mines continued with the general factors
affecting an operation. Any delay in the process such as the
judicial by-pass would increase the risks. Another factor
determining the safety of the operation would be the anesthetic
used; the abortion procedure can usually use a local anesthetic
which is generally safer. The presence of other medical conditions
such as sexually transmitted diseases may increase the risk of the
procedure. Dr. Claire Vivier-Mines stated that the risk to the
health of a pregnant teen would be greater when the pregnancy is
carried to full term rather than terminating it with an abortion in
the first trimester. According to the Public Health Policy
Implications of Abortion published in 1990, abortion is 25 times
less likely to result in the death of a woman than carrying the
pregnancy to term. The death rate from abortion is 0.5 of 100,000
procedures while the death rate from child birth is 10 per 100,000
full term pregnancies. Pregnancy related lividity is higher than
abortion related lividity.
Number 568
Dr. Claire Vivier-Mines refuted the accusations that abortion is
not a safe procedure. According to the "National Abortion
Federation Fact Sheet of 1991," 90 percent of abortions are
performed in the first 12 weeks of pregnancy, of those women 97
percent do not have complications. Former Surgeon General Coop
reported in 1987 and 1988 that after an abortion physical health
and quality including infertility, low birth rate, and other issues
were no more frequent in women who had experienced abortion than
the general population.
Dr. Claire Vivier-Mines informed the committee of the medical
definition of abortion. By making the state definition of abortion
different from that of the medical definition, national statistics
would be confused. Regarding the consistency of SB 105 in relation
to other parental involvement laws, Dr. Claire Vivier-Mines
indicated that children find ways around forced parental
involvement under existing laws. Minors can consent to medical
treatment without parental consent for sexually transmitted
diseases, outpatient care for alcohol and drug abuse, and care for
the prevention or treatment of pregnancy. She noted that a minor
that is or has been married can consent to any medical care without
parental consent. Dr. Claire Vivier-Mines contended that if a
minor can consent to pregnancy and adoption of her baby then the
minor should be able to give her own consent for an abortion
without parental consent or judicial by-pass.
SENATOR LEMAN inquired as to the number of abortions Dr. Claire
Vivier-Mines performed on minors in a year. DR. CLAIRE VIVIER-
MINES said that she did not have those numbers from her computer.
Nationally, 25 percent of the abortions performed are performed on
women under the age of 20, women under the age of 17 make up 10
percent of the abortions performed.
SENATOR LEMAN asked how many minors do not involve their parents,
of those abortions performed on minors under the age of 18. DR.
CLAIRE VIVIER-MINES informed the committee that in states without
parental consent laws, approximately 60 to 70 percent of minors
include their parents in an abortion decision. The remaining
percentage consult an individual they trust.
SENATOR LEMAN clarified that he was inquiring of her personal
practice when asking the previous question. DR. CLAIRE VIVIER-
MINES did not have information regarding that. Dr. Claire Vivier-
Mines did understand that parental consent was already a law, but
she pointed out that there was an Attorney General's opinion which
said that law was unconstitutional without judicial by-pass.
Number 503
SENATOR LEMAN stated that changing the definition of abortion was
done in order to establish the idea of intent. That change was
done upon the advice of legal counsel to make this legislation
operable with a U.S. Supreme Court Review. DR. CLAIRE VIVIER-MINES
understood that, but reiterated the difficulties in meshing medical
and legal definitions.
SENATOR LEMAN asked if due to the medical definition, the 2,400
medical abortions reported by Alaska's Department of Health &
Social Services include spontaneous abortions. DR. CLAIRE VIVIER-
MINES stated that medical terminology regarding abortions does not
specify whether the abortion is medically induced or spontaneous.
SENATOR LEMAN said that he would review this concern about the
definition of abortion in the Judiciary Committee.
SENATOR ELLIS asked if the Department of Law would be testifying.
CHAIRMAN GREEN said the department was on the list to testify.
Number 482
DEBORAH GILCREST, Chair of Planned Parenthood Advisory Council on
the Kenai Peninsula, opposed to SB 105. Regarding Section 1, if a
minor is pregnant, the family already has far greater problems than
this legislation could solve. She stated that SB 105 would
continue the destructive cycle already occurring in society,
children growing up in single parent families and most often in
poverty. She asked if the sponsors of SB 105 knew the answers to
the following questions: how many of these pregnant minors are
never supported, emotionally or financially, by the male's parents;
how many pregnant teens never finish high school; how do the
average annual costs of raising a child compare to the average
salary of a high school drop out?
Ms. Gilcrest noted that adolescence is not the time to be raising
a child. SB 105 places difficulties for the pregnant teen who has
chosen to seek an abortion. She said that the decision to have an
abortion was not a parent's decision nor was it the right of a
stranger, a judge or a court appointed attorney, to make the
decision. She requested a copy of the statistics from which SB 105
draws the conclusion that other states with parental involvement
legislation have seen significant decreases in abortion and
pregnancy rates. Until laws are in place requiring mandatory
pregnancy prevention education and/or free birth control to minors,
the State of Alaska has no right to condemn pregnant teens to a
life of poverty and the other hardships associated with an
unplanned pregnancy. She encouraged the sponsors of SB 105 to
review and reconsider Section 1-4-2 regarding the physical and
emotional affects of an abortion. Have the sponsors considered the
physical and emotional consequences of being a teenaged single
mother? In conclusion, Ms. Gilcrest requested that the State of
Alaska stay out of the private business of pregnant women.
SENATOR LEMAN interpreted Ms. Gilcrest's testimony as saying that
it would be better not to live rather than live in poverty; that
condemns the child to death due to the anticipation of the mother
living in poverty. That is an extreme position.
SENATOR SALO thanked Ms. Gilcrest for her testimony. She stated
that Ms. Gilcrest presented the perspective of a teen very well.
Senator Salo expressed concern with the pregnant teens ability to
deal with the judicial by-pass portion of SB 105 and inquired as to
the thoughts of Ms. Gilcrest in regard to that. DEBORAH GILCREST
felt that judicial by-pass would be another deterrent which would
prolong the choice that the teen has already made. That delay
could increase the medical risks of the abortion.
Number 425
THEDA PITTMAN, a part-time Coordinator for the Alaska Pro Choice
Alliance, stated that such laws are not good public policy; such
laws do not achieve what they intend to achieve. She indicated
that there is a great deal of evidence in other states that suggest
that the provisions including the judicial by-pass provision are
not necessary. She asserted that those teens who do not consult
their parents have good reasons for that which the courts would not
argue. The Minnesota and California court cases demonstrated that
these provisions do not result in what the sponsors want.
Ms. Pittman noted that recent polling suggests that 74 to 80
percent of adults support a parental right to be involved.
However, when the adults become aware of the impact on minors who
have good reasons why they do not consult their parents, the public
shows a realistic view of differing family situations. She pointed
out that the people on the teleconference are those that care about
minors and good family communication. On the other hand, those
people who abuse their children are not testifying and those
children are of concern. She urged the protection of those
children by rejecting this proposal.
Ms. Pittman suggested that efforts be geared towards those
successful approaches to the prevention of adolescent pregnancy.
She noted the following approaches: a combination of early
childhood education, parental education, assess the comprehensive
adolescent health services, comprehensive family life and sex
education, programs which teach male responsibility, abstinence
based programs, and after school programs, meaningful jobs,
community service projects to keep adolescents actively involved.
Those are the areas in which work could be done to prevent
pregnancy in the first place.
Number 386
JAN DELAND, testifying from Anchorage, supported SB 105. She
stated that serious complications often result in abortions. Often
adults are not fully informed about the risks and alternatives of
abortion, minors are at an even greater risk. She commented that
there are many instances in which abortions performed on minors
have resulted in injury and death; often parents are not aware of
or involved with their child's health care decisions. She noted
that most of the parents she had spoken with wanted to be involved
in the health care of their children. She believed that the
enforceability of this law should be left to the courts. The
legislature should pass SB 105 because it would be responsible to
do so. Ms. Deland believed that abortionists and Planned
Parenthood have a financial interest in promoting abortion and
allowing it to be as available as possible. Planned Parenthood is
the largest abortion provider in the United States. Abortion is a
billion dollar business. In reference to Dr. Claire Vivier-Mines'
testimony, if the statistic that Dr. Claire Vivier-Mines stated,
the serious complications requiring hospitalization are one half of
one percent, is true Ms. Deland would still not want her daughter
to take that chance.
Number 352
LISA PENALVER, Fairbanks Coalition for Choice, stated that SB 105
may decrease the number of teen abortions, however she questioned
the wisdom of forcing teens to have babies. She indicated that
there seems to be more value being placed on the potential life of
the fetus as opposed to the life of the teen. As previously
pointed out, pregnancy poses greater and more serious and lasting
health and psychological risks than abortion. She said that the
Alaska courts recognize that pregnancy has a permanent detrimental
impact on a woman's access to education and employment. She posed
the following question: "How is it in the state's interest to
force pregnancies on teens when the state will soon be denying
funding to these same teens and to their children?" Alaska has the
second highest teen pregnancy rate in the country.
Ms. Penalver commented that even the American Medical Association
(AMA), a fairly conservative group, opposes parental involvement
laws. She stated that, according to AMA, a teen's desire to
maintain secrecy about their pregnancy is one of the leading reason
for death by an illegal abortion. According to the AMA, some
minors would be physically and emotionally harmed if required to
involve their parents in the abortion decision. She suggested that
providing adequate sex education, career oriented counseling and
job training, and providing women with an equitable pay would be
better manners in which to prevent pregnancy and abortion. She
concluded by stating that women who feel that they can contribute
to society in more ways than procreating would be more able to
resist societal pressures to be sexually active.
SENATOR LEMAN stated, in response to Ms. Penalver's comment, that
SB 105 does not force pregnancy on minors. SB 105 provides a
judicial by-pass for parental consent which makes existing parental
consent provisions enforceable. LISA PENALVER indicated that
facing the court system would be intimidating for a pregnant minor,
especially facing a male and informing him of her private sexual
experiences and the reasons why she does not want to consult her
family. That is why many states with parental involvement
legislation have increased pregnancy rates.
SENATOR LEMAN noted that the end result of such legislation is
reduced pregnancies and abortions. LISA PENALVER requested that
information. Senator Leman recommended that Ms. Penalver review
the Minnesota case which was a great success. He pointed out that
SB 105 includes a provision for a guardian at litem and an
attorney; the process is done in private and without cost. The
judicial by-pass provision addresses the intimidation factor as
well as dealing with the teen in an expeditious manner.
Number 294
RANDALL BURNS, Executive Director of the Alaska Civil Liberties
Union, pointed out that a pregnant women's right to choose between
childbirth and abortion was first established in 1973, Roe vs.
Wade. In this country, all women including those under 18 are
entitled to a safe and legal abortion. The requirement of some
sort of parental involvement or judicial by-pass for pregnant
minors creates difficulty in exercising that right. He informed
everyone that 80 percent of the more than 1 million teen
pregnancies in the United States are unintended. Some 40 percent
of pregnant teens choose abortion.
Mr. Burns seemed to agree that ideally a pregnant teen should be
able to discuss her pregnancy with her parents, obtain their love
and support in order to arrive at a decision about her future
through family discussions. The majority of teens do tell one
parent of their pregnancy, but some teens cannot tell their
parents, often, for good reasons. He stated that laws such as
SB 105 are unnecessary for stable and supportive families, and are
ineffective and cruel for unstable and troubled families. He
reiterated that such laws cannot transform abusive families into
supportive families, nor can they reduce the high rate of teen
pregnancy. Such laws would merely add to the problems facing
pregnant teens by creating delays which increase the risks of a
medical abortion and eliminate the option of abortion for many
minors. ACLU opposed parental consent/notification laws because
such laws infringe upon a minor's constitutional rights and serve
no useful purpose. He reiterated the legislative counsel's
position that this legislation would probably be found
unconstitutional under Alaska's Constitution due to the lack of a
compelling state need.
SHARI PAUL, Vice President of the Juneau Coalition for Pro Choice,
stated that SB 105 is dangerous. Law-makers should focus on
providing minors with confidential information, reproductive health
services, and counseling programs. She felt that would help
eliminate teen pregnancy. Prevention is the key.
SENATOR LEMAN questioned if according to Ms. Paul's statement, the
22 states that enforce some type of parental involvement are
dangerous states in which to live. SHARI PAUL concluded that
pregnant minors in rural areas who cannot speak with their families
are in danger from themselves as well as their parents.
SENATOR LEMAN noted that minors in rural areas cannot get abortions
in those areas now. SB 105 provides a judicial by-pass procedure
which would be available equally to those in rural or urban areas.
A pregnant teen in rural Alaska would have to travel to a place
with an abortionist where there would also be a court. He did not
understand the increased danger Ms. Paul had indicated for pregnant
teens in rural areas.
Number 211
SHARI PAUL referred the committee to the testimony of Randall
Burns. She believed that judicial by-pass would cause more delay
and time. A minor needs to have time to work this out. She
emphasized that going to a stranger in a court is not the key. The
time for a first trimester pregnancy is critical.
SENATOR LEMAN indicated the danger of a teen going to an
abortionist, a stranger, which would seem to parallel that of the
court appointed person. SHARI PAUL pointed out that the
abortionist would be a licensed person just like going to a dentist
that is a stranger. Abortion should remain legal in order that
enough physicians remain properly trained for this procedure.
SENATOR LEMAN asserted that the point of SB 105 is the judicial by-
pass provision. He said that Ms. Paul had not given any evidence
supporting her comment that SB 105 is dangerous. SHARI PAUL stated
that any legislation limiting a minor's right is dangerous.
Number 178
JANINE REEP, Department of Law, stated that she was present to
inform the committee of the Administration's position. Governor
Knowles is opposed to any restrictions regarding the access of
minors to abortion. As a representative of the Department of Law,
she concluded that SB 105, if enacted, would be found
unconstitutional by the Alaska courts.
SENATOR LEMAN was not surprised at Ms. Reep's position. He was
disappointed, if the governor did send that message, that Governor
Knowles who wanted more parental involvement when minors deface
property would not also want parental involvement in such a serious
medical procedure. Senator Leman stated that he did not know if
the governor would veto a bill with judicial by-pass. He pointed
out that this legislation as designed had been found constitutional
by the United States Supreme Court. He expressed the hope that
there would be an appeal to the U.S. Supreme Court, if the Alaska
courts found the legislation unconstitutional.
JANINE REEP recognized that SB 105 had been crafted carefully to be
federally constitutional. The key is Alaska's constitution which
contains an explicit privacy right provision for all citizens of
this state. She stressed that the U.S. Supreme Court would not
address that issue because it is a state issue. The federal
standards set forth a minimum, but the states can do more. She
explained that the Alaskan cases regarding the right to privacy are
based upon the Alaska provision which generally construe a greater
right to privacy than the federal constitution. This has happened
in other areas. She noted that this statute would not sustain a
challenge in Alaska due to the fact that the California case
presented state interest and objectives of the state which were
identical to the language in Alaska's provision.
Number 106
SENATOR MILLER asked if the Department of Law would in good faith
defend a challenge on this legislation, if the legislation is
passed. JANINE REEP said that she was not prepared to answer that
question nor did she have the authority to answer it. Ms. Reep
said that she would check with the department and return her
findings.
SENATOR MILLER said that was a vague answer. JANINE REEP clarified
that she was present to address her opinion regarding the
constitutionality of SB 105.
SENATOR MILLER emphasized that it should be a given that the
Department of Law would defend the laws passed by the legislature.
He acknowledged that the cases could be lost, but the legislature
is part of the government too.
SENATOR SALO suggested that in order to ensure the desired effect
of the legislation, SB 105 could be accompanied by a constitutional
amendment to eliminate the right to privacy. She asked if that
would work, if passed by the voters. JANINE REEP stated that the
main barrier to this legislation is the constitutional right to
privacy. Ms. Reep noted the possibility of an equal protection
issue in SB 105; pregnant minors being treated differently.
Pregnant minors are entitled to obtain medical care and treatment
without parental consent. The right to have an abortion, medical
care, would be eliminated under the existing statute and SB 105.
SENATOR SALO asked if Ms. Reep's statement regarding equal
protection drew a comparison between pregnant 19 year olds and
pregnant 17 year olds. JANINE REEP said no. Ms. Reep explained
that it would refer to persons in similar situations, pregnant
teens, and how they were treated differently from each other.
Under the existing statute, parental consent is not required for
conditions relating to pregnancy; but parental consent for an
abortion would be needed, which is a medical procedure related to
pregnancy.
SENATOR ELLIS clarified that there is a difference in reproductive
health services.
SENATOR LEMAN inquired as to possible recommendations to revise
SB 105 to ensure its constitutionality under the Alaska Supreme
Court. JANINE REEP explained that the legal standard requires
compelling state interest to invade the privacy of a minor. The
compelling state interest could probably be shown as in the
California case. The legislation must then be a close and
substantial means of furthering that end. In the California case,
the judicial by-pass and parental consent provisions were found to
not protect the minor, the minor's health, nor foster the family's
social unit.
TAPE 95-20, SIDE A
Ms. Reep concluded that without that constitutional amendment there
would not be a problem.
SENATOR LEMAN suggested that Ms. Reep pass on any information that
would help improve the possibility of gubernatorial approval or
passage in the court system of SB 105. JANINE REEP agreed.
Number 016
SENATOR LEMAN moved that SB 105 be moved out of committee with
individual recommendations. Senators Ellis and Salo objected.
SENATOR SALO stated that SB 105 is poor legislation that should not
go forth because it is probably unconstitutional, endangers
pregnant teens, and good parent-child relationships cannot be
legislated. She related a conversation in which her daughter noted
that a "Donna Reed" type family would already have parental
involvement. She reiterated that SB 105 is poor legislation that
should not be moved out of the HESS committee. She stated that she
strongly objected to SB 105.
SENATOR ELLIS agreed with Senator Salo. He discussed a documentary
in which a family, a seemingly perfect family, helped with the
passage of a parental involvement law in another state. The young
woman in the documentary did not want to destroy that perfect
family and obtained an illegal abortion from an unlicensed person.
The young woman died as a result. The family completely reversed
their opinion. He said that documentary had colored his opinion of
this subject, parental consent or notification requirements are
ill-advised.
SENATOR LEMAN suggested that committee members review the packets
which contain stories of abortions performed on minors whose
parents did not know, some of these minors died and others became
incapacitated. There are many tragic stories. In regard to
Senator Salo's comment, Senator Leman asserted that SB 105 is well
crafted and has withstood a supreme court scrutiny. He disagreed
with the two women attorneys who had testified. He emphasized that
his opinion was as worthy as their opinions. This legislation is
supported by a cross-section of mainstream Alaskans. In
conclusion, he supported SB 105 and urged members to discharge
SB 105.
Upon a roll call vote, Senators Leman, Miller, and Green voted
"Yea" while Senators Ellis and Salo voted "Nay." The motion
carried and SB 105 was passed out of committee with individual
recommendations.
CHAIRMAN GREEN announced that SB 98 would be before the committee
at the next two meetings on Friday and Saturday.
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