Legislature(1995 - 1996)
04/10/1995 02:06 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 105 PARENTAL CONSENT BEFORE MINOR'S ABORTION
The committee took up SB 105. SENATOR TAYLOR announced the bill
would be considered again on Wednesday to give teleconference
participants the opportunity to testify.
JUDY KOHLER, Senior Legislative Counsel for Americans United for
Life (AUL), and a former Illinois legislator, testified in support
of SB 105. AUL drafts and defends legislation and is currently
working in 40 states. She assisted Senator Leman in drafting SB
105. The bill protects parental rights, protects the minor's
health, and will likely reduce teenage pregnancy, teen birth, and
teen abortion rates. AUL believes SB 105 will be litigated
successfully and upheld as constitutional because it has been
drafted with an eye toward Alaska's interest in protecting the
health and welfare of its minors, in fostering family unity, and in
its interest in encouraging parental involvement in the upbringing
of minor children. These three issues have been held to be of
prime concern for state legislatures in Pennsylvania, Ohio,
Minnesota, Mississippi, Utah, and the Dakotas.
MS. KOHLER stated one of the primary reasons the Supreme Court held
that parental involvement legislation is in the interest of states
is because teenagers often have difficulty assessing long term
consequences of difficult decisions. Parental involvement in the
abortion decision is particularly on point because a parent remains
responsible for a minor for many years after an abortion. If a 13
year old girl has an abortion then suffer medical complications,
the parent will be required to give consent to any medical
procedures to repair her injuries and to pay for her care until she
is 18.
MS. KOHLER noted Alaska has over 22 statutes that require parental
consent or parental involvement. Abortions, although legal, are
not always safe. In 1992, the Alan Goodmacher Institute reported
that in Alaska nearly 2500 abortions were performed. AUL research
and experience estimates 10 percent of those females may have
experienced immediate complications, and 22 percent may have
experienced infections. Evidence of breast cancer incidents among
teenage females who have had an abortion without experiencing a
pregnancy first has been demonstrated. Because Alaska does not
have an enforceable parental consent requirement, many parents may
be unaware of the risks imposed on their teenagers.
MS. KOHLER discussed other states' experiences with parental
involvement statutes. Documented evidence from the American
Journal of Public Health (March, 1991) indicates that teenage
pregnancy rates, teenage birth rates, and abortion rates decreased
in Minnesota, after a parental consent law was adopted, and in
Massachusetts after a parental notice law was adopted. Between
1980 (when Minnesota's law went into effect) and 1986, the teenage
pregnancy rate declined by 20.5 percent. The abortion rate for
teenagers decreased by 27.4 percent, and the birth rate fell by
12.5 percent. In Massachusetts the abortion rate for minors
declined by 43 percent in the first 20 months after the law took
effect. The teenage pregnancy rate declined by 16.6 percent.
Nebraska, after the law took effect in 1991, reported a 30 percent
decrease in the number of teenage abortions. They also reported
the parental consent law has not resulted in more teenagers having
babies. Currently 38 states have parental involvement statutes; 70
percent of those are in effect. The remainder are in different
stages of litigation. A poll taken in Texas indicated that 74
percent of adults in Texas approve of parental involvement
legislation. Similarly, the approval rate for the same legislation
in Iowa was over 80 percent this year. SB 105 is designed to
comply with decisions of the U.S. Supreme Court cases that address
parental involvement.
Number 350
LISA PENALVER, Fairbanks Coalition for Choice (FCC), testified in
opposition to SB 105. The FCC believes it is inappropriate and
futile public policy to attempt to legislate family interaction.
It is not the role of government to interfere in private pregnancy
decisions. That should be left up to an individual and her doctor,
even in the case of a minor. Parental involvement laws jeopardize
pregnant teens' health by delaying or blocking their access to
necessary medical care. Proponents of this bill argue that such
laws are responsible for decreases in overall teenage pregnancy
rates in certain states, however similar decreases in teenage
pregnancy have occurred in other states, such as Alaska in 1993.
With so many variables affecting teen pregnancy rates, it is
impossible to show clear cause and effect.
MS. PENALVER stated there is no reason to believe that legislation
is capable of creating parental involvement where none previously
existed. Over 60 percent of teenagers in states without parental
involvement laws do involve their parents, the others have
significant reasons to do so. This bill targets young women from
disadvantaged situations to deprive them of control over their
bodies and of their lives. The threat to physicians implicit in
the bill undermines a physician's ability to treat his/her patient.
The safest abortion is an early abortion, and even at later stages,
abortion is safer than teen pregnancy. She questioned Ms. Kohler's
statements about complications and felt they were speculative. She
stated young women in remote areas are most likely to be hurt by
consent requirements. Confidentiality in this issue is the big
concern, and the judicial bypass option cannot promise anonymity.
Substantial costs to the state to enforce this law are likely as it
requires the appointment of both an attorney and a guardian ad
litem, and the time of a judge. SB 105 shows a callous disregard
for the privacy rights of minors and for their health and well
being. In times of severe budget cuts it is not in the interest of
the state to enact legislation that will be both costly to enforce
and costly to defend in court. Nor is it in the state's interest
to force teens to bear children against their will, especially when
welfare reform is likely to eliminate support for these children.
Alaska has one of the highest teen pregnancy rates as well as two
and one-half times the national average for rape. She urged the
committee to oppose the bill.
Number 294
SENATOR TAYLOR asked Ms. Penalver if she had any statistical
information from any of the other 22 states that have a consent or
notice law in effect, that would substantiate her statements that
this law forces teens into back alley abortions. MS. PENALVER
replied she did not have any information immediately available,
however the American Medical Association opposes parental
notification laws and believes the number of deaths from illegal
abortions are directly related to a young woman's desire for
privacy.
SENATOR TAYLOR asked Ms. Penalver if she had any information in the
form of statistics that would counter MS. KOHLER'S statement that
the number of teens giving birth had decreased in several states
after parental consent/notice laws went into effect. MS. PENALVER
replied the 1993 teen pregnancy rate in Alaska declined without
enforcement of the parental notification law.
Number 264
SENATOR LEMAN, sponsor of SB 105, stated the bill was introduced to
help pregnant teens to seek parental guidance for one of the most
important decisions they will make. The issue comes down to
parental rights, and who is responsible. Parents are responsible
for so many other things, and to not have the same rights for
something as serious as an abortion is incongruous. SB 105 does
not provide for parental consent in the State of Alaska; that is in
existing statute. SB 105 provides for judicial bypass, which will
enable the existing statute to be enforced. The Attorney General's
Office has chosen to not enforce the law, rather than enforce it
and litigate it. SB 105 is crafted carefully to create a judicial
bypass procedure that has already withstood the scrutiny of the
U.S. Supreme Court. The Attorney General's Office has argued that
SB 105 will not withstand the scrutiny of the Alaska Supreme Court
because of the issue of privacy. He disagreed and stated his
belief that minors should be treated differently than adults in
many circumstances. In regard to privacy rights, parental rights
should supercede a minor's right to privacy.
SENATOR LEMAN indicated 22 states now enforce parental involvement
laws, and polling shows 74-80 percent support of such rights. He
added a recent polling of Texas democrats show 65 percent in favor,
28 percent opposed, and 7 percent undecided. SB 105 is a step in
how the issue of abortion is dealt with in the State of Alaska,
however it is not a cure-all for the devastating impacts of
abortion on demand. He estimated the bill may save 100 lives this
year, yet if it only saved one it would be worth it.
SENATOR TAYLOR asked for an explanation of the changes made in the
proposed committee substitute. SENATOR LEMAN replied the changes
were proposed by the Alaska Court System. The main change is on
page 5, lines 4-5 of SB 105, and allows the court to refer the case
to a juvenile master. The second change removes references to
Court Rule 53, which deals with the juvenile master. The third
change is the addition of the identification of the Office of
Public Advocacy as the agency that provides the guardian ad litem
and the attorney.
Number 129
SENATOR MILLER moved to adopt the proposed CSSB 105 (Lauterbach,
4/7/95) version in lieu of the original bill. There being no
objection, the motion carried.
SENATOR ELLIS commented that Senator Leman referred to SB 105 as
"parental involvement" legislation. He asked if that was the
terminology used in the public opinion surveys conducted, as he
would expect 99.9 percent support among all parties for parental
involvement in young peoples' lives. He clarified the bill
requires parental consent, not merely parental notification.
Number 052
SENATOR LEMAN stated the measure provides for a judicial bypass
procedure to activate the existing parental consent provision,
therefore, after passage, it will require one-parent consent with
judicial bypass. Different states have used several approaches:
one-parent notification with judicial bypass; two-parent
notification with judicial bypass; one-parent consent with judicial
bypass; and two-parent consent with judicial bypass. All four
approaches have been found to be constitutional. The approach in
SB 105 would keep the existing one parent consent provision with a
judicial bypass. Regarding the polls he referred to, the Texas
poll asked the question, "Do you favor or oppose parental
notification of abortions to minors?" He has found the results
from polls referring to parental consent are very similar and only
differ by two or three percent.
SENATOR TAYLOR commented existing law is more conservative than it
will be if SB 105 passes. SB 105 allows the juvenile the
opportunity to bypass parental consent and have a court order for
consent issued by a judge. SB 105 allows a greater level of choice
than existing law.
SENATOR LEMAN agreed, but stated in order to accomplish the greater
good of saving lives, the opportunities have to be liberalized.
SENATOR TAYLOR questioned the fiscal impact on physicians'
malpractice insurance rates since SB 105 allows people to sue
doctors for this practice. SENATOR LEMAN replied that opportunity
already exists.
TAPE 95-20, Side A
JAN RUTHERDALE, Assistant Attorney General with the Department of
Law, stated it is the position of the Attorney General's Office
that it is highly likely that SB 105, if enacted, would not be
upheld by the Alaska Supreme Court, because it violates the Alaska
Constitution privacy clause. Unlike the U.S. Constitution, the
Alaska Constitution contains a privacy clause.
SENATOR TAYLOR believed the question would focus on the rights of
privacy between the child and the child's parent. MS. RUTHERDALE
replied there is case law on the right of privacy issue in Alaska.
Number 030
SENATOR TAYLOR asked Ms. Rutherdale to cite the case. MS.
RUTHERDALE stated the case is Raven v. State. SENATOR TAYLOR
commented the case was about the legalization of marijuana.
MS. RUTHERDALE explained the right to make procreative decisions,
which includes the right to have an abortion, has been determined
to be a fundamental right. When that fundamental right kicks in,
the next question is whether a compelling state interest exists to
justify intruding on that fundamental right. If the compelling
state interest is determined to exist, then a nexus between the
means and the ends must be determined, the ends in this case would
be the goal of furthering parental involvement.
Number 056
SENATOR TAYLOR asserted Ms. Rutherdale's argument would pertain to
adults, but the Supreme Court has upheld repeatedly the right of
the state to establish an age for consentual activity, which is age
13 in the State of Alaska. If that is a legitimate function of
government, he asked why, if a minor cannot choose to get pregnant,
she would have a greater right to abort the pregnancy.
MS. RUTHERDALE clarified that under criminal law, the age for
consentual sexual activity is 16, and there is no law that says
people of any age have to ask their parents for permission to
engage in sexual activity. The law specifies that a person three
years older than a partner under the age of 16 is committing a
prosecutable crime. That does not apply if the partner is between
the ages of 16 and 18.
MS. RUTHERDALE explained there are two other states with privacy
clauses in their constitutions: California and Florida. Both have
struck down similar statutes. They did find compelling state
interests almost identical to those listed in SB 105. It was
determined that the statute did not further those compelling state
interests as there was no fit between what the statute accomplished
and what the compelling state interests were trying to achieve.
She added that Ms. Kohler specifically referred to states that do
not have a privacy clause in their constitutions, therefore the law
in those states was upheld by the U.S. Supreme Court. Because of
Alaska's Constitution, a similar case would not get to the U.S.
Supreme Court.
MS. RUTHERDALE discussed Ms. Kohler's comment about the decrease in
the pregnancy rate in states that enacted similar legislation. She
cited an Appendix attached to the California decision, which found
that although the pregnancy rate had dropped in Minnesota,
Missouri, and Massachusetts, it had also dropped in other states
and other factors contributed to that decrease. The drop in the
number of abortions in those states was due to the fact that minors
had abortions in other states. In states without a parental
consent statute, the teenage pregnancy rate also dropped. The
Appendix also listed other less restrictive ways to reduce teen
pregnancies less injurious to the right of privacy, such as birth
control education and counseling. Other evidence found credible by
the Court was that adolescents by the age of 14 or 15 are capable
of making medical decisions, including abortion. A minor must
consent to counseling and information requirements before an
abortion will be performed. Also evidence was presented that
showed most minors do consult with their parents when deciding
whether to have an abortion, therefore the enactment of such a
statute had no effect on the consultation. They found that ten
percent of the minors might be in danger if they consulted with
parents because of problems such as physical and/or sexual abuse.
It also found that most of that ten percent choose to go through
the judicial bypass procedure and an infinitessimal number of
petitions are denied by the courts. It found the judicial bypass
procedure to be costly, unwieldly, and an essentially pointless
procedure which achieves no purpose other than to cause stress to
the minors and delay the implementation of their decision to abort.
Number 200
SENATOR TAYLOR stated, according to previous testimony, there are
22 provisions in Alaska statutes that require parental consent of
minors, most of which involve medical procedures. If a minor is
injured in an automobile accident, parental consent is required
before a physician will treat the minor. He asked how that would
be more invasive of the minor's privilege of privacy than an
abortion. He added there is a whole series of statutes enforced by
the Attorney General's Office which involve medical procedures, but
because this one has a measure of political correctness about it,
the privacy issue has been risen.
MS. RUTHERDALE replied the difference between abortion and other
medical procedures is that the right to procreative decisions
invokes the right to privacy, whereas other medical procedures do
not have the same privacy rights attached. SENATOR TAYLOR asked if
Ms. Rutherdale had any case law to support that opinion. She
offered to provide committee members with case law at a later date.
SENATOR TAYLOR asked at what age such a medical procedure would not
be an invasion of a child's right to privacy. He asked if a child
cannot privately make the decision to procreate with another
person, how can the child make the decision to have an abortion.
MS. RUTHERDALE replied the law is directed toward criminal
prosecution of the perpetrator, rather than the child.
MS. RUTHERDALE explained that often in criminal prosecutions of
sexual abuse of a minor cases, there is consent on the part of the
minor, but the fact that the child does not have the ability to
consent in those cases is not a defense to the crime.
Number 290
SENATOR TAYLOR asked if his 15 year old child gave consent to a
medical or dental procedure, without consulting him, whether he
would be unable to sue the physician or dentist for performing the
procedure without parental consent. He asked whether the Attorney
General's Office would defend the physician based on the child's
right to consent based on privacy. MS. RUTHERDALE replied it would
be a tort case. SENATOR TAYLOR felt the case would be assault and
battery, and that certain religious groups would be extremely
upset.
SENATOR TAYLOR noted the issue is at what age does the right to
privacy apply. MS. RUTHERDALE responded she has reviewed how the
Alaska Supreme Court would rule on SB 105, based on the analysis of
other cases. She added Ms. Lauterbach from the Division of Legal
Services has written an opinion on the issue.
Number 311
SENATOR ELLIS asked Ms. Rutherdale to research any existing case
law for cases in which a lawsuit was brought against a physician or
clinic for the treatment or screening of a minor for a sexually
transmitted disease without parental notification or consent.
Number 325
SENATOR MILLER asked for the name of the material cited by Ms.
Rutherdale. She responded it is the appendix to the decision by
the California Supreme Court, the American Academy of Pediatrics v.
Lundgren, 1994.
SENATOR MILLER commented Ms. Rutherdale's testimony alludes to a
reason not to defend SB 105 should it be enacted. He expressed his
concern that the Administration may decide not to defend a law
passed by the Legislature if challenged, because it might not be
the politically correct thing to do.
MS. RUTHERDALE noted all of the Administrations have not enforced
the existing law because of the judicial bypass issue.
SENATOR TAYLOR indicated Ms. Rutherdale said that if SB 105 is
enacted and resolves the judicial bypass issue, the law would still
violate the right of privacy. He asked how she would redraft SB
105 to accommodate the right to privacy concern. MS. RUTHERDALE
replied the bill has been drafted well, and she did not think a
better job could be done.
Number 368
SENATOR GREEN discussed a recent situation in which a minor was
convicted of driving without a license and caused damage of under
$1,000 in an accident. The parents accompanied the minor to court
for the sentencing. MS. RUTHERDALE responded the parents are not
required to attend the court hearings, but many parents do.
SENATOR ELLIS noted the judicial bypass procedure would allow the
child to appear in court without parental participation.
SENATOR TAYLOR stated SB 105 would be held in committee and heard
next Wednesay. He asked Ms. Rutherdale to review the other 22
sections of law that require parental consent, and give the
committee her opinion of why each of those statutes are not
violative of the same right of privacy issue. He discussed the
Raven case and added reliance upon it is weak at best since it was
based on incorrect information.
MS. RUTHERDALE commented the Supreme Court did rule on a similar
case in which cocaine was found in the defendant's home and found
the state to have a compelling interest.
SENATOR TAYLOR announced SB 105, HB 115, and SB 95 will be held
over until Wednesday's meeting. He adjourned the meeting at 4:10
p.m.
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