SB 219-OFFENSES AGAINST UNBORN CHILDREN  The committee took up SB 219, sponsored by Senator Fred Dyson. SENATOR FRED DYSON, District I, told members that he filed the bill last year but expected the House version to be the vehicle that moved forward. However that bill got "high centered" in the House so, at the request of the sponsor of the House bill, he has been working to get SB 219 passed. SENATOR DYSON informed members that Congress has enacted an unborn child protection act but it is only in effect under federal law and federal jurisdiction. Thirty-one states have enacted or are in the process of enacting similar legislation in state law. SB 219 mirrors the intent of the federal law but is tailored to fit into Alaska's statutory structure. He asked members to adopt the proposed committee substitute (CS), labeled version H. In that version, a few lines were changed to make sure that this law does not apply to people involved in abortion services with the permission of the mother. SENATOR OGAN moved to adopt version H as the working document before the committee. CHAIR SEEKINS announced that without objection, version H was before the committee. SENATOR DYSON pointed out that on page 2, line 31, subsection (3) is new. It exempts acts by a pregnant woman committed against herself and her unborn child. Similar language on page 3, lines 26 -27, makes clear that a woman who consciously does something to herself or with the assistance of medical people to abort a child is not subject to prosecution. CHAIR SEEKINS asked if this law would only apply to acts done unwillingly against a mother and unborn child. SENATOR DYSON said that is correct. He said the bill is clear that the crime is murder if the offender intended to harm the unborn child; the crime is manslaughter if harm was done unintentionally but occurred as the result of assault, rape, burglary, etc. He believes the bill is well drafted; it follows model legislation. CHAIR SEEKINS referred to the language on page 2, lines 16-19, and said the standard is recklessly rather than negligently. SENATOR DYSON affirmed that is correct. He then noted the first law of this type was enacted in California in 1970 after a tragic occurrence in which an unborn child died. SENATOR OGAN said he would be more comfortable with the language that exempts a woman who harms herself or unborn child if it only applied to an abortion performed by a doctor or some type of standard medical practice for the sake of safety. CHAIR SEEKINS agreed but said SB 219 is meant to apply to acts done by an outside party that are not agreed to by the woman. He stated: We would now be bringing under the law, if we made this any more difficult, someone who maybe was a very emotionally distraught prospective mother who may do something without whatever the level of culpability is, simply trying to avoid all kinds of emotional problems, as they might be, we would simply be widening the net and taking that person in. And I think the intent - tell me if I'm wrong here Senator, is that you're bringing the net in for those people outside of that woman herself who would cause the death of the baby but not trying to put the woman, herself, inside that net. Under current law, all of them are outside of the net. SENATOR DYSON said he is sympathetic to Senator Ogan's concern but he does not believe this bill is the proper place to address that concern. TAPE 04-42, SIDE B  He noted such a change would open up the possibility of prosecuting the woman for assault if she, for instance, was imbibing alcohol or smoking and damaged the child. He said although those concerns might be legitimate and worthy of consideration, they are outside of the scope of SB 219. SENATOR OGAN said, for the record, he has spent a lot of time thinking about children who are assaulted by their parents by alcohol abuse and that is avoidable. CHAIR SEEKINS agreed that the damage done to unborn children as the result of alcohol abuse is a terrible scourge on Alaska and, more data is showing the amount of damage is so huge as to compel the legislature to address that issue, but not in this bill. SENATOR DYSON agreed and mentioned some of his personal experiences with fetal alcohol syndrome children. SENATOR FRENCH asked Senator Dyson if it is his intention to "weed out" of this bill any harm a woman might do to her fetus through smoking, drinking alcohol, or use of recreational drugs. SENATOR DYSON said that is correct. SENATOR FRENCH asked Senator Dyson why he chose the moment of conception for protection rather than the viability standard. SENATOR DYSON asked Mr. Luckhaupt, the drafter, to help him address the question. He believed SB 219 follows model legislation from other states. MR. JERRY LUCKHAUPT, legislative counsel, Legislative Legal and Research Services, explained that he used the moment of conception as the definition of unborn child because the model legislation he was supplied with used that definition, as does the federal legislation. He believes it will be difficult to apply. SENATOR DYSON noted that historically, the law has tended to follow the science, and up until the 1860s or 1870s, the law generally got involved past the stage of "quickening," which is when the mother first notices movement of the fetus. He furthered: As our understanding of embryology and so on and so forth has progressed, they realized that that was kind of an arbitrary point and that obviously it was life of a developing child far beyond that. So somewhere on that spectrum - and from my perspective philosophically or in terms of a worldview, as long as it is clear that that's a wanted child, you know, in that spectrum, in that progression, caught doing activity that caused the damage or termination from that has the same effect of damaging or killing a wanted human being and so on, so that's why I picked it.... What if it's after conception but before implantation and actually no one would know at that point and it would be very difficult to even know that a crime had happened because previous to implantation, the woman is not receiving any chemical signals in her body that it's happened and the hormonal changes are not happening so it would be very difficult to prove that there was even a conceived child starting that process. So I think there will be no prosecutions here under this until there's some evidence that there was a pregnancy in process. SENATOR FRENCH said he could foresee prosecutions brought in front of members of the community in other states where all of the voir dire before the jurors centers on when one believes life begins. He said that would stray off of the normal path of criminal prosecution. His sense is that the closer the definition gets to a viable fetus, the more workable the law will be in the hands of the prosecutor, judge, and jury. CHAIR SEEKINS noted in many cases, viability is considered to be as late as the seventh month of pregnancy. SENATOR DYSON said he is aware of a child who survived [outside of the womb] at 19 weeks and as technology moves forward, that target will change. He said he is not sure he would want to support a law that says a person is culpable for killing a child at 28 weeks but not at 24 weeks. In his view, the value of that unborn child shouldn't be set based upon available technology. SENATOR OGAN noted that many women have miscarriages that are stress induced. He questioned how stress caused by another's actions, whether intentional or not, would be handled. SENATOR DYSON said he believes this bill addresses that scenario exquisitely because if one's intent is to engage in another crime, such as setting a fire to a house, that person would be prosecuted for arson and whatever damage was done to the people and their possessions. In addition, if that crime caused a miscarriage or premature birth, the person could be charged with that unintended action. However, that would only apply if the harm done to the unborn child occurred as the result of another crime. CHAIR SEEKINS asked, if the charge was manslaughter, an automobile accident would be included. MR. LUCKHAUPT said it would not in the example given by Senator Dyson. He tried to adopt Alaska's murder statutes with changes to apply in this situation. He retained crimes like felony murder so that if someone was in the process of committing a felony and caused the death of an unborn child, that person would be prosecuted for murder. He said one could be prosecuted for manslaughter or criminally negligent homicide resulting from an auto accident if other circumstances are involved, for example driving while under the influence of alcohol or engaging in drag racing. CHAIR SEEKINS took public testimony. MS. CASSANDRA JOHNSON, an Anchorage resident, said all agree that domestic violence is a serious problem in our society and that it is all too prevalent in Alaska. She believes SB 219 is not about protecting pregnant women; if it were, it would include sentence enhancement provisions for assault or mandatory education programs. With eight years of work experience in domestic violence, she thinks SB 219 is the wrong approach to protect women from assault by husbands, partners, or former partners. The National Domestic Violence Advocates and National Advocates for Pregnant Women opposed this bill on the federal level. She urged the committee to not pass the bill. MS. ROBIN SMITH, a resident of Anchorage, read the following testimony for Dr. Carolyn Brown, an OB-GYN who was unable to attend. She apologized in advance if the testimony does not apply to the new committee substitute. I have read through SB 219 a number of times and would like to offer the following comments to the proposed legislation. I ask that these remarks be incorporated into the record and they be considered by the Senate Judiciary Committee. Homicide is the number one killer of pregnant women in our country. 240,000 pregnant women, 6 percent of all pregnant women, are battered each year. Injury to a fetus is first and foremost in an injury to a pregnant woman, where the fetus presides. It is imperative that any fair and just legislation deal with that issue. The proposed legislation deals with none of that if it does not address the injuries to the pregnant woman. So where is the protection provided in the name of SB 219 that [is] desperately needed for that mission? Otherwise, what does this proposed legislation mean to the pregnant woman who carries that fetus or the alleged perpetrator? [Indisc.] offenses perpetrated by a pregnant woman on the fetus. These may include, but are not limited to, abuse of alcohol, tobacco, legal and illegal drugs and pharmaceuticals, attempted suicide, self abortion, missing prenatal appointments, abandonment of reasonable nutrition, resulting in obesity, a [indisc.] injury, refusal of prenatal care, prenatal negligence, working with environmental hazards, sexual promiscuity resulting in sexually transmitted diseases and [indisc.] of tubal pregnancy, to name a few. Many of these can result in the death of the fetus. What will this proposed legislation do with these women and will they be charged with murder? There may be offenses perpetrated by physicians and [indisc.] with an in vitro fertilization or an idea for assistive reproductive technology, where multiple zygotes or [indisc.] may be destroyed or frozen. Is this murder and are the zygotes and [indisc.] unborn children if this results in destruction? There also may be offenses where the pregnant woman chooses not to file charges against the alleged perpetrator. How does this proposed legislation plan to deal with this? The [indisc.] just what the offenses are, who the offenders are, and the manner of the offenses are so convoluted and [indisc.] so as to make this proposed legislation as written a threat to due process, right to privacy, freedom from unreasonable search and fundamental rights of women, including reproductive rights. Who is [indisc.] pregnancies to assure that offenses are not committed against the fetus with drugs, tobacco, alcohol, neglect that may lead to fetal death and injury? How will we know? And what about second-hand smoke? Will all stillbirths be mandated to be investigated as potential murder and who will do this and at what cost? [The remainder of Dr. Brown's testimony was inaudible.] SENATOR DYSON informed Ms. Smith that a paragraph is included in the bill that says a woman cannot be prosecuted if the actions that resulted in the death or injury to the unborn child were committed under usual and customary standards of medical practice during diagnostic testing or therapeutic treatment. He believes that will provide protection from prosecution if the damage occurred during a medical procedure. SENATOR OGAN felt the secondhand smoke issue should be addressed. He asked if a person could not be prosecuted unless criminal intent was involved. MR. LUCKHAUPT said that is an interesting issue and would involve questions of fact and approximate cause. He said medical science has not progressed so far as to be able to prove that secondhand smoke was the cause of a miscarriage. He surmised if one required a pregnant woman to sit in a smoky room with the intent of doing harm to the fetus, and medical testimony could back that up as the cause of the miscarriage, he could see that occurring. CHAIR SEEKINS thought, if the woman was unknowingly forced into that situation, that would be an assault. MR. LUCKHAUPT said he could clearly see that situation, just like forcing a pregnant woman to drink alcohol. CHAIR SEEKINS asked if current law already addresses similar acts against the woman herself. MR. LUCKHAUPT said it does. He noted the definition of serious physical injury specifically includes miscarriage. CHAIR SEEKINS said those laws are not reiterated in this bill but that does not indicate an intent to not provide the same coverage to the woman that this bill will provide to the unborn child. MR. LUCKHAUPT replied: That would be correct. We are not attempting to - or at least the draft legislation I was provided, what I could discern from that, it was not attempting in any way to define a person for purposes of our murder and assault statutes to include an unborn child within that definition and so thereby you avoid all those questions about a child being born alive or being viable, or any of those things, but it was an attempt to create a whole new area of law to protect this unborn child outside of all of the existing law that already exists. SENATOR OGAN said many women who work in bars are exposed to secondhand smoke and noted that an assault charge requires intent. He wondered whether the state would have to prove criminal intent on the part of an employer if a child was born with a defect because of exposure to secondhand smoke in a work environment. MR. LUCKHAUPT said the state of culpability required for an assault charge is "knowingly" so a person would have to be aware that the conduct is of that nature. He noted the scenario described by Senator Ogan presents one of the problems, for example, the woman's pregnancy might not be obvious. There will be many circumstances in which it will be difficult to show the perpetrator had the requisite criminal intent to cause harm to the unborn child. That will always be a limitation in regard to the assault provisions of the bill. SENATOR FRENCH referred to the definitions on page 2 and asked for reassurance that the bill would not apply to anything in the area of assistive reproductive techniques if something went wrong with a procedure. SENATOR DYSON said that is correct; the bill is not intended to deal with any fertilized human cells outside of the womb. SENATOR FRENCH suggested expanding subsection (2) on page 2, lines 29-30, to make certain the bill does not cover any of that. His concern is this could stray into legitimate areas of medical technology and in the hands of the wrong prosecutor, could lead to trouble. SENATOR DYSON said he is not an expert in that area and does not have the tools to deal with that. He added, "But I think that there's got to be intent here - gotta be intent to have done a criminal act or a criminal act against the woman that leaves us in the clear there." MR. LUCKHAUPT noted that "therapeutic treatment" is fairly broad but he could add the correct phrase dealing with reproductive therapy. CHAIR SEEKINS noted the committee is talking about attempts to assist in conception. SENATOR FRENCH commented that Senator Dyson made a good point but he pointed out the manslaughter standard is reckless, which is a high standard but it can be overcome. CHAIR SEEKINS said the committee is only attempting to address a conceived egg within the woman and there must be intent to cause harm. SENATOR DYSON said he is aware of a situation that involved enhanced fertility with implantation of several embryos. Later in the pregnancy, the doctors felt development of the three embryos was threatening the chance of success of any of them and performed a therapeutic abortion. During that surgery, the leg of the surviving embryo was amputated. SENATOR FRENCH said that although he understands the intent of the bill, the definition of "unborn child" is fairly broad and does not say whether it is inside the womb. CHAIR SEEKINS suggested adding the phrase to page 2, line 30, after the word "or", "medical practice to assist pregnancy." MR. LUCKHAUPT thought that was a good start. SENATOR DYSON said he would be open to inserting "and in utero" on page 5, line 10, after the word "conceived." SENATOR FRENCH said the federal definition of "unborn" child means a child in utero, which means a human child at any stage of development who is carried in the womb. CHAIR SEEKINS again suggested adding "medical practice to assist pregnancy" at the end of line 30 on page 2 [Amendment 1]. SENATOR DYSON accepted that as a friendly amendment. SENATOR OGAN moved to adopt Amendment 1. CHAIR SEEKINS announced that with no objection, Amendment 1 was adopted. SENATOR DYSON suggested a conceptual amendment to adopt the federal definition of an unborn child [Amendment 2]. SENATOR OGAN so moved. CHAIR SEEKINS announced that with no objection, Amendment 2 was adopted. SENATOR FRENCH asked for the opportunity to work on a definition that moves closer to viability. He believes without that, this bill will be very difficult to implement. SENATOR DYSON committed to Senator French that such an amendment would be considered at "other stops along the way," although he would not support it. SENATOR OGAN recalled seeing a photo on a national magazine cover of an in utero operation in which a tiny hand was hanging on to the fingernail of the surgeon. He noted that baby was not viable but it looked like the baby knew he was having a life altering operation. With no further discussion, SENATOR OGAN moved CSSB 219(JUD) from committee with individual recommendations and its attached fiscal notes. SENATOR FRENCH objected. The motion carried with Senators Therriault, Ogan and Seekins in favor and Senator French opposed.