HOUSE BILL NO. 234 "An Act relating to assistance for abortions under the general relief program; and relating to financial responsibility for the costs of abortions." House Bill 234 was placed in subcommittee during the previous legislative session. The Subcommittee consisted of Representative Kelly, Chair and Representatives Martin and Davies. Representative Kelly provided members with a proposed committee substitute for HB 234, work draft 0-LS0848\K, dated 1/19/98 (copy on file). He noted that provisions for financial responsibility and the definition of abortion were removed. In addition, an exception for the life of the mother was included. BILL ELKINTON, JUNEAU testified in support of HB 234. He provided members with written testimony (copy on file). He maintained that government should not fund elected abortions. He provided members with the Bill of Responsibilities distributed by the Freedoms Foundation at Valley Forge (copy on file). ANGELA SALERNO, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF SOCIAL WORKERS ALASKA CHAPTER testified in opposition to HB 234. She maintained that the bill eliminates public funding of abortions for poor women. She asserted that if passed, the legislation would be costly and unconstitutional. She estimated that the State would save $5.82 dollars for every dollar spent on abortions for poor women. She noted that the State would incur additional public medical and welfare expenses as a result of the additional births. She reviewed her calculations to demonstrate that the state of Alaska could save $2.44 million dollars with continued funding of the abortion elective. Ms. Salerno stated that 68% of low-income women have unintended pregnancies and that 17% have unwanted pregnancies. She noted that unwanted children: ? Experience more mental handicaps and are twice as likely to receive psychiatric care at government expense; ? Are more than twice as likely as wanted children to have a record of juvenile delinquency; ? Are six times more likely to receive some form of welfare between the ages of 16 and 21; ? Are at increased risk of suffering abuse, neglect, abandonment and removal to foster homes or institutions. Ms. Salerno stated that research done in 1995 shows that women with unintended pregnancies are four times more likely to experience physical violence during pregnancy than women with intended pregnancies. Ms. Salerno observed that the Alaska Supreme Court has found that reproductive rights are fundamental, and that they are encompassed in the right to privacy found in the Alaska Constitution. She maintained that state restrictions on public funding for abortion make it difficult and often impossible for poor women to exercise their constitutional right to safe and legal abortion. She asserted that passage of HB 234 would result in a costly legal battle. Representative Kelly maintained that the right to have an abortion does not incur a state responsibility to fund the right. (Tape Change, HFC 98 - 4, Side 2) Representative Kelly argued that financial concerns should not be used to justify abortion. Ms. Salerno acknowledged that the issue is not just financial. Co-Chair Hanley observed that the Department of Health and Social Services' fiscal note was based on the assumption that 80 percent of low-income women who want to have an abortion would carry their pregnancy to term. Ms. Salerno stated that her figures were based on research published in the Journal of Obstetrics and Gynecology. Representative Grussendorf questioned if pregnancies resulting from criminal action would be covered. Ms. Salerno stated that she would like to see exceptions included for sexual assault, rape and incest. Representative Davies summarized that the state of Alaska is obligated to fund elective abortions because the state provides public money for general relief medical care. Abortions are classified as general relief medical care. LIZ DODD, ACTING PRESIDENT OF THE BOARD OF DIRECTORS, ALASKA CIVIL LIBERTIES UNION testified in opposition to HB 234. Ms. Dodd referred to, Valley Hospital Assn. v. Mat-Su Coalition, Supreme Court, No. 4906, dated November 21, 1997. She observed that the Board of Directors of Palmer Valley Hospital, a non-profit corporation that receives substantial public funds, voted not to provide abortion services at the hospital. In its decision, the Court found Valley Hospital's action to be in violation of a woman's fundamental right to an abortion, under the Alaska Constitution's Article I, section 22. This section is commonly referred to as the privacy clause. She read the following excerpt from the unanimous opinion of the court: We are of the view that reproductive rights are fundamental, and that they are encompassed within the right to privacy expressed in Article I, section 22 of the Alaska Constitution. These rights may be legally constrained only when the constraints are justified by a compelling state interest, and no less restrictive means could advance that interest. These fundamental reproductive rights include the right to an abortion. The scope of the fundamental right to an abortion that we conclude is encompassed within Article I, section 22 is similar to that expressed in Roe v. Wade. We do not, however, adopt as Alaska constitutional law the narrower definition of that right promulgated in the plurality opinion in Casey. [p. 12] Ms. Dodd summarized that the state of Alaska would be required to demonstrate a compelling state interest for why these services should be singled out for de-funding. She maintained that the legislation will not stand up to a court challenge. Ms. Dodd quoted from an Alaska court opinion issued by Superior Court Judge Reese, July 1997. The opinion was issued pursuant to litigation by the Alaska Civil Liberties Union, relating to late-term abortion procedures. The opinion stated that: Respect for constitutional legal principles is fundamental to the fairness and security we enjoy in Alaska and in the United States. The bottom line is that we have rules, which control what our government can do to us. The ebb and flow of public opinion and the gratification of current political needs cannot cancel our fundamental rights. The legislature cannot eliminate freedom of speech because it doesn't like what we say, and it cannot eliminate the right to a jury trial for the accused even if we all are convinced of the person's guilt . . . . [O]ur privacy rights are essential. Government cannot take them from us without very strong reasons in support of more important rights. Representative Martin maintained that the issue is whether the state of Alaska is responsible for paying for elected abortions. He noted that supreme courts of other states have ruled that the fundamental, constitutional right of freedom of choice does not require that the government pay for abortions. He observed that the North Carolina Supreme Court ruled that the state of North Carolina did not have to pay for abortions. Ms. Dodd noted that once the right is established it cannot be selectively infringed upon. She observed that testimony by the Department of Law stressed that states with a strong privacy clause cannot defund abortion services without defunding other pregnancy related care. Co-Chair Therriault emphasized that a direct correlation cannot be drawn between states. Representative Kelly pointed out that abortion is an elected procedure. Representative Kohring stated that because the Constitution is interpreted to permit abortion it does not mean that there should be state funding of elective abortions. Ms. Dodd reiterated that funding decisions have to be consistent with the rule of law that stems from the State's Constitution. Co-Chair Hanley observed that the argument is, that because the state of Alaska funds its birthing services through the Medicaid program and the Constitution grants the right to privacy, that abortion services have to be funded one- hundred percent. He pointed out that the federal government does not fund abortion services. He noted Ms. Dodd's argument is that if the State provides any health care services for poor people that abortion services have to be included. Ms. Dodd reiterated that the Court has ruled that one pregnancy related procedure cannot be selectively removed. Co-Chair Hanley emphasized that the concept that the privacy clause gives the right to abortion is hard for him to grasp. He noted his willingness to have the Alaskan Supreme Court deliver an opinion on this issue. In response to a comments by Ms. Dodd, Representative Kelly emphasized that religious beliefs are not the only motivation for his opposition to state funding of elective abortion. KRISTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, HUMAN SERVICES SECTION, DEPARTMENT OF LAW noted that the proposed committee substitute has cleared up a number of legal complications. She stated that one constitutional concern remains. She observed that other states with strong privacy provisions have found that when state government seeks to act for the common benefit, as it does in providing medical care to the poor, it has a obligation to do so in a neutral manner, so as not to infringe on the constitutional rights of its citizens. This was taken from a 1993 decision in the state of West Virginia. She observed that the Alaska Supreme Court has ruled that reproductive rights are fundamental and that there needs to be a compelling state interest in order to influence the exercise of those rights. The Court rejected the test applied under the Federal Constitution as narrower than the state test. She noted that a law would be invalid if its purpose is to place a substantial obstacle in the path of women seeking an abortion, before the fetus obtains viability. An exception that limits the availability of abortion services only to cases where the death of the mother is to be considered would also face a constitutional test. She observed that the legislation would restrict the availability of abortion services to instances where the mother's life is threatened. Representative Kelly asked what would happen if the state of Alaska did not fund the general relief medical program. Ms. Bomengen acknowledged that the State has the right not to administer a general relief medical program. She observed that, should the State not fund a general relief medical program, assistance might revert to mandatory services required under Medicaid. The Court would then review if the election of services only covered under Medicaid would impose an infringement of a constitutional right. Representative Kelly pointed out that Medicaid does not fund abortions. Co-Chair Therriault asked if the Court would be influenced by the fact that it is permissive on whether the service can be provided depending on the level of funding. Ms. Bomengen observed that the issue is whether separating this service out from other pregnancy related services is supportable as something other than an intention to curb the exercise of what is considered a constitutionally protected right. Co-Chair Therriault noted that under the general title of pregnancy services, all other services are intended to facilitate pregnancy to a live birth. He questioned whether this would be a point for differentiation. Ms. Bomengen could not answer how the court would view the issue. In response to a question by, Co-Chair Hanley, Ms. Bomengen observed that, under federal distinctions, states are allowed to regulate after viability in means that can place a number of restrictions on the availability of abortions. Representative Kelly questioned what determines viability. Ms. Bomengen stated that she would provide him with a definition. RUTH EWIG, FAIRBANKS testified via teleconference, in support of HB 234. (Ms. Ewig's full written testimony is on file.) She spoke in support of eliminating state support of abortion. She expressed her support for crisis pregnancy centers to help mothers and their children. She emphasized adoption as an alternative to abortion. SHARON SMITH, FAIRBANKS testified via teleconference in support of HB 234. (Ms. Smith's full written testimony is on file.) She observed that unborn babies cannot speak or defend themselves. She maintained that public financing should not be used for abortions on demand. She emphasized that it is a moral issue. NANCY WELLER, DIVISION OF MEDICAL ASSISTANCE, DEPARTMENT OF HEALTH AND SOCIAL SERVICES stated that the Department supports changes made by the proposed committee substitute. She referred to the Department's fiscal note. She explained that the 80 percent assumption, used in the fiscal note, was an estimation. She assumed that there would have to be an upward adjustment of any national statistics to account for Alaska's younger average population. Co-Chair Hanley stressed that if the national average, of women that stay on the program, is 20 percent than the Department's fiscal note based on an 80 percent assumption would be high. Ms. Weller emphasized the difficulty of making assumptions. Co-Chair Hanley noted that some mothers would put their children up for adoption. In response to a question by Representative Kelly, Ms. Weller clarified that coverage under the general relief medical program is limited to hospital, physician and prescription drugs for certain chronic and terminal conditions. Representative Kelly noted that approximately $500 thousand dollars would be saved by discontinuing coverage of elective abortions. He asked if the additional funding would allow coverage of emergency dental care. Ms. Weller explained that Medicaid recipients receive emergency dental care. Emergency Dental Care is not covered in the general relief medical program. Ms. Weller clarified that Medicaid covers funding for abortions in cases of rape, incest, or danger to the mother's life. Representative Kohring spoke in support of the legislation. He emphasized that elective abortions for the poor should be funded by private dollars. Representative Kohring MOVED to report HB 234 out of Committee. Representative Davies OBJECTED. He stated that the fiscal note should be considered prior to moving the bill. A roll call vote was taken on the motion to move HB 234 from Committee. IN FAVOR: Davis, Foster, Kelly, Kohring, Martin, Therriault, Hanley OPPOSED: Davies, Grussendorf Representatives Mulder and Moses were absent from the vote. The MOTION PASSED (7-2). Co-Chair Therriault MOVED to ADOPT a reduced fiscal note for the Department of Health and Social Services, based on an assumption that 20 percent of the pregnant women eligible for Medicaid would give birth and remain on Medicaid. (Tape Change, HFC 98 -5, Side 1) Representative Davies MOVED to AMEND the motion by increasing the assumption to 40 percent. Co-Chair Therriault OBJECTED. Co-Chair Therriault spoke in support of retaining the 20 percent assumption. A roll call vote was taken on the motion to amend. IN FAVOR: Davies, Grussendorf OPPOSED: Davis, Foster, Kelly, Kohring, Martin, Therriault, Hanley Representatives Mulder and Moses were absent from the vote. The MOTION FAILED (2-7). A roll call vote was taken on the motion to adopt a revised Department of Health and Social Services fiscal note based on a 20 percent assumption. IN FAVOR: Davis, Foster, Kelly, Kohring, Martin, Therriault, Hanley OPPOSED: Davies, Grussendorf Representatives Mulder and Moses were absent from the vote. The MOTION PASSED (7-2). CSHB 234 (FIN) was REPORTED out of Committee with a "do pass" recommendation and with a fiscal impact note by the House Finance Committee for the Department of Health and Social Services.