CS FOR SENATE BILL NO. 30(JUD) am An Act relating to information and services available to pregnant women and other persons; and ensuring informed consent before an abortion may be performed, except in cases of medical emergency. STACEY KRALY, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, explained the differences between the House Judiciary version of the bill and work draft #23-LS0193\Y, Mischel, 4/29/04 version. She noted that when the bill arrived in the House Judiciary Committee, an opinion was requested from the Attorney General's office regarding the constitutionality of the provisions. As a result, recommendations were made to that Committee and some amendments were submitted based on that review, which were all adopted. REPRESENTATIVE FRED DYSON, SPONSOR, did not know if the Y version would meet with the Department of Law's approval. He noted the conditions contained within the committee substitute. The Department of Health & Social Services does not want the State Medical Board to have obstetricians determine the information placed on the website. The Department believes that they can handle that from within. Ms. Kraly commented that the recommendation during the House Judiciary proceedings was that the provisions in the website would be information developed in a medically accurate manner. She stressed that it is important that the information is not politically motivated but rather medically accurate. The State Medical Board is not interested in performing that duty. She reiterated that the information should be medically accurate. Representative Stoltze asked if the Attorney General was interested in being involved in this matter. Ms. Kraly advised that the Attorney General is familiar with the concern. Senator Dyson addressed issue #2: Language inserted in the House Judiciary Committee appears to establish the criteria transmitted to the woman, which is based on a physician's standard. In the Y version, the language is better fit for the patient standard and information. Ms. Kraly responded that the Judiciary version creates two provisions by which informed consent may be imparted. One provides information through the State maintained web site. The second mechanism in the G version would be to create a mechanism by which a physician could choose not to use the website information, but rather impart information, which the doctor "reasonably" believes is necessary for the patient to make an informed choice. That language is on Page 6, Lines 24-27, in the G version. Representative Croft asked if that reference was made in the Y version. Ms. Kraly did not know, as she had just received that copy. She thought that the committee substitute removed the language. Ms. Kraly noted that the State of Alaska has an informed consent provision under Title 9, in which the standard creates a "reasonable patient standard". General case law dealing with informed consent issues in Alaska has been a reasonable patient standard not a reasonable physician standard. That being said, the changes recommended by Senator Dyson, make sense that the body of law is consistent in the sense of not having conflicting provisions in the law. She thought that the Y version section should be amended to make it more clear that the standard is for a reasonable patient standard. Constitutionally, it might not be a problem, but that the language should be consistent. Senator Dyson voiced concern when dealing with a doctor doing the procedure. There is a pattern, where a caring doctor, could have pressure to minimize the issues regarding termination. He thought that more complete information would allow women to make better decisions. He understood that the Y version would leave the doctors the alternatives; however, the intention of the legislation is to use the Department's information, which would be immune from legal action. Senator Dyson added that the real issue was whether or not the 24-hour waiting period would be problematic under the Alaska Constitution. Ms. Kraly responded that the issue of the 24-hour waiting period with respect to the informed consent provision would be a difficult question. The Alaska Constitution provides greater protections under the right to privacy and equal protection than the federal constitution. The Alaska Supreme Court has interpreted provisions relating to the restrictions of reproductive rights and consistently upheld that it is a fundamental right and in order to restrict it, there must be a fundamental constricting State interest. It is the opinion of the Department of Law that the 24-hour waiting period would be viewed as an undue burden under the right to choose. It makes the bill less constitutionally sound than if the provision was not in it. She reiterated that in the opinion of the Department of Law, the 24-hour provision would be problematic. Senator Dyson pointed out that many states have fought this battle. He understood that the Department of Law might get challenged. Co-Chair Williams asked the anticipated cost of such a challenge. Ms. Kraly agreed that there would be a challenge and that the bill would be more defensible without the 24- hour waiting period. She warned that litigation is expensive and time consuming and that it could cost hundreds of thousands of dollars to litigate these issues. The appeal process could take a few years to get through. It will be a timely and costly venture if it should pass. Co-Chair Williams asked clarification that if the 24-hour rule were left in, the legislation would most likely be challenged. Ms. Kraly predicted that no matter what version passes, it will be challenged on some level. If the 24-hour provision was removed, there would be one less issue to litigate. Senator Dyson pointed out that presently, in law, there exists a "severability concept", which does not negate the entire idea. Representative Croft pointed out how verbally careful the attorney general's office was being. If the bill passes, the Department of Law will be defending it and if they truly believe that it is not constitutional, it would be used in that case. He pointed out that Ms. Kraly was very careful not to mention things during the Committee meeting that could be used in defending the lawsuit later. He added that the testimony sounded conditional because of the public nature of the situation. Senator Dyson maintained that the Y version does not raise constitutional issues except for the 24-hour rule. Vice Chair Meyer MOVED to ADOPT version #23-LS0193\Y, Mischel, 4/29/04. There being NO OBJECTION, it was adopted. Representative Croft MOVED a conceptual amendment removing "at least 24 hours" on Page 5, Line 16 and on Page 6, Lines 11 & 12. Vice Chair Meyer OBJECTED for the purpose of discussion. He invited the sponsor's opinion. Senator Dyson stated that the bill is of great value even without the 24-hour rule. He stated that he would prefer to keep the language in the bill but would hold no grudges, as he wanted to see the bill pass from Committee. He added that he thought that it could survive a court challenge. A roll call vote was taken on the motion. IN FAVOR: Croft, Moses OPPOSED: Stoltze, Chenault, Fate, Foster, Hawker, Meyer, Williams Representative Joule and Co-Chair Harris were not present for the vote. The MOTION FAILED (2-7). Representative Foster MOVED to report HCS CS SB 30 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. HCS CS SB 30(FIN) was reported out of Committee with "no recommendation" and with fiscal notes #3 and #4 by the Department of Health & Social Services. TAPE HFC 04 - 108, Side B