Legislature(2001 - 2002)
03/16/2001 12:00 PM Senate HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 91-ABORTION: INFORMED CONSENT;INFORMATION CHAIRWOMAN GREEN announced SB 91 to be up for consideration. MS. SANDY ALTLAND, staff to Senator Ward, sponsor, explained that SB 91 provides more information to people who are considering an abortion. It asks the Department of Health to prepare a handbook with the information that is needed. Some people have emotional problems after a procedure and more information in the beginning might help them. MS. NANCY DAVIS, Acting Director, Division of Public Health, said she was presenting the prepared testimony of Karen Pearson, Director as follows: The Division of Public Health supports what appears to be the intent of this bill insuring that all women seeking a abortion are fully informed prior to signing consent for the procedure to be done. Since this is currently required to any surgical procedure being performed and is considered essential by the medical provider and the advocate communities, we question the need for a law specific to the abortion procedure. I believe we are in agreement that each woman seeking an abortion needs information about the physical, emotional, psychological and medical risks and benefits of the procedure them personally. This bill seeks to address this need by requiring each women be provided a detailed and lengthy informational document and requiring that the provider have the patient sign a form indicating she has read and understands the information in the document and its relevance to her. Some women would find such material information, but many who are of low literacy, illiterate or for whom English is a second language would not be served well by this process. Many individuals who have reading problems are very skilled at hiding those problems from those with whom they interact. Thus, it could be very difficult for a provider to ascertain surely or with any degree of certainty that a woman to whom the written materials were provided was actually able to read and comprehend the information. Providers are accustomed to explaining procedures, risks, and benefits relative to medication options, treatment options of all kinds and being able to follow up on questions and concerns as they arise. They are used to tailoring the information given to meet the specific needs of the patient being seen. There are many individual health issues that a physician must address with each patient no matter what the procedure that will be performed. These needs are not well served when large volumes of written information that may or may not be relevant to that individual are required first in order to verify that a person is informed. The language, culture, age and other relevant factors of the woman must be considered when deciding how to provide information in the most usable form and manner and only the provider working with the patient can determine those individual needs. There are substantial costs as reflected in the fiscal note related to the Department of Health and Social Services staff compiling and keeping current lists of providers, agencies and organizations in each community that provides support, aid or other services for women contemplating parenting, adoption or abortion. Local communities are well-versed in local resources and are better able to keep the information current at significantly lower costs. Thus, if these booklets do not significantly improve the process of informing the patient, and we believe they will not, then this money could perhaps be used to fund needed services or to educate women about avoiding unintended pregnancies and, thus, avoiding contemplating having an abortion. TAPE 01-24, SIDE A CHAIRWOMAN GREEN asked if they generally refer people to a physician, if possible. MS. DAVIS answered that the Public Health Division, through several different divisions, encounters women who are pregnant or seeking a pregnancy test. Through some of their grantees, that encounter is made through public health nurses in public health centers at the local level. They do not provide any abortion services at public health centers or by public health staff. They refer clients to whatever services they need or seek. She said further that public health services are primarily preventive in nature and for on-going prenatal care or other things, they refer them to an on-going provider. MS. IDA BARNICK, Alaskans for Life, Inc., supported SB 91. She said, "Medical and scientific fact have proven that human life begins at conception." This is extremely important for a woman who is contemplating the life of her unborn child to understand what she is doing. Therefore, she deserves to know the age, the fetal development of her unborn child, possible psychological effects that she might experience if she ends the life of this child and she needs to know what the other options to abortion or other community services that can help her if she decides to let her unborn child live. She should never be coerced into having an abortion. She should be required to sign a statement that she was given the information… MS. BARNICK said this is the same procedure she would have to go through if she were going to have any other major or minor medical procedure. If English is the second language, she would usually have an interpreter with her who will explain the information. She also didn't think it was unusual for a state agency to have to provide brochures to the public for various things and she didn't believe it would cost that much. Number 460 MS. KAREN VOSBURGH, Executive Director, Alaska Right to Life, said she didn't understand the opposition by pro-abortion forces to allow women to have full and informed consent. She has found that when women are considering abortion, very little factual information is actually given. She said there are over 100 potential physical complications associated with abortion. She presented some abortion statistics for Great Britain saying that she new women were not aware of these. She said that many studies have connected breast cancer and abortion and have also connected it with the pill. According to Calinborn (ph), based on the most comprehensive medical evidence available, induced abortion and the birth control pill are both independent root factors for development of breast cancer. This risk is especially great if the women have participated in either of these factors at a young age… She said that despite evidence of the dangers of breast cancer from abortions and contraceptive use, "abortion clinics continue to promote abortion on demand." She said that evidence of psychological damage from having abortion is overwhelming. Number 825 MR. BOB LYNN, President, Alaskans Right to Life, said that passing a statute mandating informed consent is not about whether abortion should or should not be legal or available or who should pay for it. "My concern today is nothing more than a woman's right to know the facts about any medical procedure including an abortion procedure before consenting to it." He said that informed consent is routine. If women knew some of the risks of abortion, she might not consent. He noted that abortion providers only get paid when a woman decides to abort. MR. LYNN said that he sells real estate and that everyone who sells a house must provide a disclosure statement to buyers. Likewise, Alaska Right to Life thinks that anyone who sells an abortion should provide the buyer of that abortion with a full disclosure of facts. So there was informed consent before the woman buys the abortion. I hope the legislature thinks that the health of a woman is more important than the health of a house. DR. COLLEN MURHPY, Anchorage Obstetric Gynecologist, said she is Board certified by the American College of OBGYN. She wanted to reassure the audience and said: The standard procedure for medical practice is to provide informed consent. It currently constitutes excellent patient care. It is currently required by all professional organizations under all circumstances be it for a medical or a surgical procedure of any nature. Likewise, our professional ethical standards require it and furthermore the lawyers demand it. I will say repeatedly again and again, that this particular attempt at informed consent is not required under state law. This is something that is done in the privacy of the office with an individual patient and client talking about the serious nature of a condition be it related to abortion, a hysterectomy, a colposcopy or a gall bladder surgery. For the legislature to step in between the privacy of a patient and a doctor is inappropriate. We are practicing medicine and this does not need to be legislated. DR. MURPHY disagreed with the preceding scientific information by someone describing breast cancer. That is not scientific fact and is a subjective evaluation. She also wanted to discuss what they could do about the tragedy of unintended pregnancy in Alaska. Currently, 60 percent of pregnancies are unintended in Alaska. It is estimated that half of those pregnancies will go to termination of pregnancy. The other half may miscarry or become live born. Some women will elect to adopt them out. If we truly want to decrease the need or the request for abortion, we should be directly our attention towards decreasing the reasons unintended pregnancy occurs in Alaska. Rather than fighting about informed consent, which is something that is done privately between a trained medical provider when a surgical condition is being considered with a patient. I would suggest that we direct our attention, just like the World Health Organization has suggested elsewhere. The best way to decrease the need for termination of pregnancy is to increase the availability of contraception. I would challenge this committee to look at a bill that has currently been proposed by Senator Johnny Ellis, SB 15, called the prescriptive fairness act. This is a step in the right direction that is concrete, that everyone can agree on - that women who use contraception that is reliable and approved by the FDA - have a lower risk of unintended pregnancy and the need for termination. DR. MURHPY said they should spend time doing something that they know works rather than putting women and providers in additional difficulties and expense based on the proposals in this bill. CHAIRWOMAN GREEN said she had a question from someone who had to leave earlier, but they refer to the term in the bill of "gestational age", which is neither a medical nor scientific concept and asked if there was better phrasing. DR. MURPHY replied that gestational age varies. She explained: There is something called Migel's Rule. It's when you find out when the woman's last menstrual period is. You add nine months plus one calendar week and it's the estimated date of confinement. From that, we calculate the supposed gestational age. The average pregnancy will be approximately 40 weeks in duration. A normal term pregnancy will deliver between 37 and 42 weeks. To make a long story short, menstrual dating is notoriously inaccurate. If you go ahead a retrospectively date a pregnancy based on the baby's size and weight and appearance at birth, 25 percent of menstrual dates are inaccurate for gestational aged dating. In modern obstetrics, we will often alter the dating of the pregnancy based on ultrasonigraphic findings in which we might go ahead and measure the gestational sack size. We might measure the crown growth points, the fetal fold, different measurements of the skull or the femur length. This will alter the gestational age such that we no longer rely on the last menstrual period because a bleeding episode did not occur exactly two weeks prior before the egg was released from the ovary. CHAIRWOMAN GREEN asked if the method of computing the gestational age has been refined through time. DR. MURPHY responded that it no longer relies on just the last menstrual period. "It's invariably complemented with ultrasonigraphic and physical exam." CHAIRWOMAN GREEN asked if using those methods, was there a range in which she could identify at what point of development the unborn child is. DR. MURHPY replied, "I don't know what an unborn child is. I'm not familiar with the term unborn child. She is a physician and medically trained and has never come across unborn child in my medical training." CHAIRWOMAN GREEN asked what phrase would she use for the before delivery time. DR. MURHPY said they don't use that phraseology. She explained: When a fertilized egg divides, it changes into a blastocyst and then it will implant into the uterus and be called an embryo until eight weeks gestation. From eight weeks gestation until the time of delivery, it is called a fetus. There is no such thing as unborn child in medical literature. CHAIRWOMAN GREEN asked how she identified the number of weeks or what the stage of development is. She asked, "If when you are making those assumptions, are you basing that on a range of time versus this is a specific day in the development versus it could be within two weeks." DR. MURHPY replied: It gets pretty interesting. If you look at first trimester, which according the American College of OBGYN is up to 14 weeks in pregnancy, and then the second trimester is 14 weeks to 28 weeks and third trimester is 28 weeks to birth. Basically, we know if we do ultrasound measurements of the fetus, that world wide based on large statistical studies [indisc.] that fetuses pretty much grow at a very similar rate in the first trimester, through 14 weeks - such that you can date the pregnancy within several days to about 10 days. Between 14 weeks [and 28 weeks] we start to get such variation that it's two weeks difference. So, we're not accurate. I think a lot of lay people give us too much credit for being terribly accurate and we really aren't. We guess pretty well. Number 1486 MS. SHERRY GOLL, Alaska Pro Choice Alliance, Haines, said they are a state wide coalition of diverse nonprofit organizations with a mission of protecting reproductive rights and to promote reproductive health services through education, advocacy and community organizing. Although the group promoting this legislation think it is informational, her organization thinks it is trying to intimidate and harass women who are choosing to have an abortion. She said: Apparently, people are under the impression that women take this kind of decision lightly instead of thinking about it and dealing with it in the privacy of their own lives, making their own constitutionally protected, private pregnancy decision with their physician. As Dr. Murphy just stated, physicians for all surgical procedures provide informed consent. To suggest that women in this particular instance have to be shown photographs - I mean photographs of a developing fetus would be more appropriate to show to a woman who is planning to have a pregnancy and there are many books in the library to help you understand child development if you're going to have a baby. If a man needs to have a cyst removed from his testicles, do you think it would appropriate for the legislature to put in law that this man should be shown pictures of how that cyst would grow over a period of time if he fails to remove it. I think the bill is flawed in ways using terms that are so charged, like unborn child, when as you know it is not a medical term. If it's meant to be educational, if you want to provide information, don't tell women that the father of their child will be under obligation to provide child support unless you're also going to tell her what the statistics are that obligors pay their child support. I am very much opposed to this legislation. I think that it's just intended to harass women who choose to have an abortion and it is clear that it is that type of bill by the folks who have shown up to testify on it. I appreciate your taking my testimony. Thank you very much. Number 1620 MS. ANNA FRANKS, Fairbanks, said she would be reading testimony from Alicia Wells, Anchorage resident, who was home caring for her children. The letter said preventing pregnancy sometimes is just based on luck and that a woman can get pregnant using an IUD. She said that she was never forced to have sex against her will and that her parents shared with her information about responsible sexual behavior. She read: Not all women are that lucky, however, and for one reason or another, many women find themselves pregnant when they don't want to be. For these women, the decision about what to do is not easy. I know from having counseled several friends with this decision that it is not one that any woman takes lightly. Women who are in this situation need access to good quality information and supportive non-judgmental counseling about their actions. She read further that: SB 91 masquerades as something that will help women make a decision at this critical time in their lives, its main purpose is to intimidate women and make them feel guilty for exercising their right to make choices about their bodies and their lives. In addition to being a blatant anti-choice attempt to restrict women's rights, there are several major problems with the bill. First, the legislature has no business telling doctors the specifics of what they can and should be saying to their patients. Doctors are already bound by the standards of practice which include providing complete and unbiased information and counseling about medical procedures as well as insuring that a woman or any patient freely consents to the procedure she will undergo. These systems are already established and working. There is not need for special information consent forms just for abortion. Second, the purposed intent of this so-called counseling material is clearly biased and intended to dissuade women. Third, the proposed content of the so-called counseling materials related to the psychological affects of abortion is simply not supported by scientific research. Finally, SB 91 shows a lack of respect for women. It assumes that women will not make the right choice without an extra push in the right direction from the state. Well, as a woman myself and someone who has talked to many women, I can assure you that women do have the ability to make thoughtful and moral decisions about their lives. We need to respect that ability and provide women with quality information and services so that they may have the best possible outcome whatever their choice. I urge you to vote against SB 91 and allow women to make their own decisions with the assistance and medical expertise of their own doctors. MS. JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (ACLU), opposed SB 91. She asked if the committee had received testimony from Dr. Sharon Smith, Dr. Cathy Todd and Dr. Jan Whitefield regarding this bill. CHAIRWOMAN GREEN replied that they did receive it. MS. RUDINGER summarized her testimony: I want to first of all point out something that hasn't been mentioned yet and that's that SB 91 requires that the physician, him or herself, be the person delivering these extraneous lectures to the patient. This is going to have the effect of not only forcing doctors to give information that may not be relevant to that particular patient's circumstances, but also by using the doctor's time to do this, is making access to quality health care more difficult and more expensive. SB 91 will not allow a trained counselor, a nurse or another health care practitioner to provide the state's mandatory lecture to the patient and there are very few doctors already available. There's a shortage of doctors able to help women in these circumstances. By taking the doctors time and forcing them to deliver these lectures when other healthcare practitioners could do it is going to drive up the cost of healthcare and make access more difficult. Finally, I just want to address some of the medical misinformation, actually, that's been put on the record, to kind of correct the record. SB 91 refers to possible psychological affects that have been associated with having an abortion and as Dr. Murphy testified, this is really substituting lay people and politician's judgment for that of doctors. Practicing medicine is something that should be left up to people with a medical license. This reference to possible psychological effects is misleading because no such psychological harms have been proved to exist and in fact to corroborate that, according to a 1987-88 investigation by former Surgeon General C. Everett Coup, who is of course no champion of choice, as well as another study by the World Health Organization, there is no medical evidence that abortion causes psychological injury. On the contrary, relief is the most common reaction to a voluntary abortion whereas women who are forced to continue unwanted pregnancies suffer adverse and sometimes severe psychological consequences. So, again this is where it should be left to doctors to decide based on their best medical judgment, based on the specifics of their patient, what risks and benefits are relevant to that patient, what medical information is scientifically sound. And finally, I hadn't planned to discuss this, but I must just briefly rebut the allegation that there's a link shown between abortion and breast cancer. The latest scare tactic initiated by anti-choice groups is to link abortion with breast cancer. Ceasing upon scant evidence in a 1994 research study, they have mounted a bigger advertising and legislative campaigns to convince the public that having an abortion increases a woman's chance of contracting breast cancer. In fact, this study they are referring to published in the Journal of the National Cancer Institute reported a small statistical connection between abortion and breast cancer. Although cancer research experts have characterized this study as inconclusive and methodolically problematic, anti-choice activists eagerly wield it as a new way to frighten women and restrict their choices. Opponents of choice have persuaded legislators in several states that there is this link, that this is part of the information that needs to be conveyed. It's not clear from this bill whether, in fact, that's the case, but if anyone is under the impression that there is such a link and that this information is needed for informed consent, I'd like to mention, and I can get this for you later, a couple points that illustrate just the opposite. The Natural Cancer Institute has charged that the study has been interpreted inaccurately and, "There is no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion." Second, the American Cancer Society has concluded, "The inconsistencies of existing research do not permit definitive scientific conclusions." Third, on the day this study was published, the Journal of National Cancer Institute, the source of the study, printed an editorial stating that, "The overall results of the study as well as the particulars are far from conclusive and it's difficult to see how they will be informative to the public. The study was particularly criticized because of the methodological problem of possible inaccurate reporting of a history of abortion by participants. Fourth, four recent reviews published in scientific journals have assessed more than 30 studies and concluded that the available data on the relationship between induced or spontaneous abortion in breast cancer are inconclusive. Fifth, a 1995 article in Cancer Causes and Controls reported in an article entitled Abortion and Breast Cancer Causes in Seven Countries the study of these countries concluded, "In Summary, these data suggest that any overall relation between abortion and risk of breast cancer is likely to be weak at the most." This list goes on and on and finally, one more point, a widely noted 1997 study of more than 1.5 million women in Denmark where abortion histories are corroborated by a government sponsored medical registry, so there's no chance of reporting bias, concluded that, "Induced abortions have no overall affect on the risk of breast cancer." In a New England Journal of Medicine editorial, a company in the Danish research I just quoted, Dr. Patricia Harkey (ph) of the National Cancer Institute said, "It provides important new evidence to resolve a controversy that previous investigations have been unable to settle." In short, a woman need not worry about the risk of breast cancer when facing the difficult decision of whether to terminate a pregnancy. MS. GOLL said she appreciated the opportunity to read these articles into the record and offered to provide them with further information they might find helpful. MS. DIETRICK SITLER, Anchorage resident, opposed SB 91. She wanted to share with them why a bill like this could be very detrimental to many women like her as follows: At the age of 14 I was diagnosed with hemophilia, a disease affecting the blood. As a result of this condition, it is medically dangerous for me to carry a pregnancy to term, because the loss of blood during delivery could be potentially fatal to me. I am in a long-term committed relationship and my partner and I are very careful, but as you know, no form of birth control is 100 percent effective. Were I to become accidentally pregnant, it would be in my best medical interests to terminate the pregnancy rather than carry the pregnancy to term. I strongly feel this is a decision between my partner and I with the advice and consultation of my doctor. The government I feel has no place in this personal painful choice that I would have to make. Furthermore, my partner and I would find it very painful to have to listen to a litany of alternatives to abortion - alternatives that are not in our best interest and that could actually threaten my life before we would be deemed capable of consenting to an abortion. My greatest objection is in your definition of a medical emergency. I would not fall under the medical necessity exception to SB 91, because having the abortion at that very moment would probably not be a life saving measure or an emergency situation. Therefore, I would be subject to this extra counseling which would be wholly irrelevant in my individual circumstances. I have also heard a lot of testimony today stating that if many women knew more facts about abortion, they would probably choose not to have this procedure. This is not entirely true, especially in my situation. Not every woman that is having an abortion is having this procedure just because they do not want to have the child. What about women like me? There is no exception for women like me. I would remind you that this decision would already be very painful for me and I would be terminating this pregnancy to save my own life. Why should these extra hurdles be placed on me, especially when they are not placed before any other patient seeking any other medical treatment. We urge you to oppose this bill and thank you very much for your time. Number 2224 MS. MARY DYE, citizen of Alaska, supported SB 91 and read a definition of informed consent that she got off the Internet: In medicine a patient's written consent to a surgical or medical procedure or other course of treatment given after the physician has told the patient all of the potential benefits, risks and alternatives involved. She used an analogy of deciding whether or not to put gutters on her home and gathering all the information available and deciding if it was the thing to do. She said they could offer the information to women and do the best you can. MR. SID HEIDERSDORF, Juneau resident, supported SB 91. TAPE 01-24, SIDE B He said that informed consent is needed to protect women from unscrupulous abortion practices. He pointed out this bill does not attempt to outlaw abortion or place restrictions on a woman's right to an abortion. He said, "Abortion is not an honorable or an innocent medical procedure and those who are involved with it are not likely to be very open and free about the information when they are talking to their patient." MR. HEIDERSDORF asked, "Why is abortion the only invasive medical procedure for which full information is not given? It is well known that abortion counseling is a sham." Further he said: If biased information results in an attitude of viewing it as being anti abortion, I think there's something there to look at. The fact is that scientific unbiased information, which is required by this legislation, may in fact speak against abortion and that's the way it is. It's true if the child in the womb, which is the crux of the issue, is what's discussed. That's what women really must know. We hear a lot said about RU486. In August of this past year, Serle, the company that produces one of the drugs used in the RU486 abortion procedure, wrote a letter to 200,000 medical practitioners in this country telling them, "Don't use cytotech for abortions." They said don't use it because it's dangerous. They didn't study it for that purpose; this is a drug used to cure ulcers, not to be used for producing contractions for a woman to expel a dead baby. He passed out an article to the committee on cytotech in which a woman died who used it. He disagreed that there wasn't a link between abortion and breast cancer. He said there are over two dozen scientific articles that do show a strong link between abortion and breast cancer, especially first pregnancy abortions. He said, "The evidence is building." Specifically, SB 91 does not include a waiting period. He thought a 24-hour waiting period was critical because a woman needs to get the information and get away from the doctor and the clinic personnel, because they are out to sell an abortion. "They are in the business of selling these abortions." One final thing was on page 5, line 3. He was concerned that this language did not require that the woman be given the information produced by the Department of Health and Social Services. CHAIRWOMAN GREEN said she thought page 5, line 8, addressed his concern. MR. HEIDERSDORF responded that he was concerned with language in AS 18.05.032. Number 1853 MS. MARY HORTON, Juneau resident, supported SB 91, because of a recent experience she had bringing healing to two men and six women who had experienced abortion in Juneau. Their ages were 17 - over 50 years. She said that a man begins to deal with an abortion 5 - 7 years after it's happened. She said, "When we talk about the abortion, it's not only the woman who carries the child, the fetus, it's also the grandparents, the sisters and brothers that come before or are still there, the man who fathered the child." She said there will be another opportunity for healing that is called Project Rachael, Rachael's Vineyard. In her experience, she found that women were very surprised to hear the other side of the story, that men were carrying the guilt and what could they have done about it. "Women need to know, but so do the men…" She said that people who can't read can see pictures and can understand clearly what's going on. It's hard for her to express all the healing that happened and SB 91 would go a long way in helping people think about it a little bit more clearly. CHAIRWOMAN GREEN said she was chagrined at some of the comments. She had undergone various surgeries and had seen pictures of body parts on the doctor's office wall and what might be wrong with them and how they could be corrected. She received a great deal of information and the consent forms and waivers she signed were all inclusive. She continues: On the other hand, I would say that those who say that government should not be involved in this decision making and certainly in regulating and/or prohibiting or allowing are the very same people who spend a great deal of time challenging the fact that state Medicaid money should indeed be used to fund abortions. So, I'm a little conflicted on those. SENATOR DAVIS asked if there would be time for more public testimony. SENATOR WARD said he had a lot of people who wanted to testify and wanted to know if any state money had been spent on psychological follow-ups or abortions; if so, how much. He was trying to figure out if the state is liable. CHAIRWOMAN GREEN adjourned the meeting at 2:55 p.m.