MINUTES SENATE FINANCE COMMITTEE MARCH, 11 1997 10:17 A.M. [Note: Due to poor audio recording, some material was undecipherable.] CALL TO ORDER Senator Sharp called the Senate Finance Committee meeting to order at 10:17 a.m. MEMBERS PRESENT Co-Chair: Senator Pearce Co-Chair: Senator Sharp Senator Donley Senator Parnell Senator Phillips Senator Torgerson Senator Adams ALSO PRESENT Rupe Andrews, Alaska League of Women Voters; Dr. Peter Nakamura, Director, Division of Public Health; David Rogers, Alaska Women's Lobby; Mike Pauley, Staff, Senator Leman. PRESENT VIA TELECONFERENCE Pauline Utter, Anchorage, Abortion Rights Project; Virginia Phillips, Sitka, National Right to Life; Pete Halgran, Sitka, Chairman, Republican Party of Alaska; Ms. Zachary, Petersburg; Ruth Ewig, Fairbanks, Interior Right to Life; Bob Lynn, Anchorage; Undecipherable Pittman; Undecipherable, Delta Junction; Debbie Undecipherable, Delta Junction, Republican Party of Alaska; Lori Undecipherable, Mat-Su, Alaska Right to Life. SUMMARY SB 24 PARENTAL CONSENT BEFORE MINOR'S ABORTION SB 24 was HEARD and HELD in committee for further consideration. SB 41 ENVIRONMENTAL & HEALTH/SAFETY AUDITS SB 41 was SCHEDULED but not HEARD. SENATE BILL NO. 24 "An Act relating to a requirement that a parent, guardian, or custodian consent before certain minors receive an abortion; establishing a judicial bypass procedure by which a minor may petition a court for authorization to consent to an abortion without consent of a parent, guardian, or custodian; amending the definition of `abortion'; and amending Rules 40 and 79, Alaska Rules of Civil Procedure; Rules 204, 210, 212, 213, 508, and 512.5, Alaska Rules of Appellate Procedure; and Rule 9, Alaska Administrative Rules." Senator Sharp introduced the bill and requested testimony from Senator Leman. SENATOR LOREN LEMAN, SPONSOR SB 24, established his reasons for introducing the legislation. He voiced that a similar bill (SB 105) was debated in the prior session on the Senate Floor. He explained that SB 24 did not address the morality portion of the abortion debate, but instead highlighted the issue of parental consent. He stated that the proposed legislation allowed Alaska's existing statutes regarding abortion for minors to be enforced. He noted that Alaska adopted a statute stating that a minor must have consent from a parent to terminate a pregnancy. He declared that the law was not enforced and had not been enforced for more than 20 years. Senator Leman continued that the legislation required a judicial bypass to make the law enforceable. He believed that the enforcement of Alaska's parental consent law would provide good public policy. The concept of judicial bypass was tested at the Supreme Court of the United States level and found to be constitutional. He added that President Clinton and his wife stressed that they would like to see abortions as "safe, legal and rare." He believed that very little was being done to ensure less frequent abortions. He opined that SB 24 would accomplish the goal by getting parents involved in their minor's decisions. He hoped to succeed in lessening the frequency of abortion. Senator Leman advocated for the protection of parental rights. He stated that SB 24 would protect the rights of parents to raise their own children. He shared a story about a requirement for his parental signature when his daughter had her ears pierced. He opined that the procedure of abortion was more significant than the piercing of ears. He commissioned a poll of Alaskans, which found that 78 percent of respondents supported parental consent for abortion. He noted the strong public support for parental involvement in the significant decision making process. Senator Leman stated that another major area was that of the protection of minors. He noted that minors were often immature. He quoted a legislative finding: "the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of abortion were not necessarily related." He believed that teenagers would benefit from parental consultation during the very difficult time in the young person's life when abortion was in question. He admitted awareness of dysfunctional families, which was probably how the concept of the judicial bypass evolved. He contended that most parents loved their children and wanted to help them through life's most difficult challenges. The bill allowed parents to be parents when they were needed most. Senator Leman revealed another goal of the legislation, which was reducing teen pregnancies, births and abortions. He pointed out other states that enacted similar legislation and saw rates of decline in teen pregnancies, births and abortions. He noted that the Supreme Court of the United States reviewed the Minnesota parental consent law. The review included a brief included in members' packets. The effect of the laws appeared to be a reduction in the teen pregnancy rate, which was a public policy goal that was easily endorsed. Senator Leman offered comment on the fiscal notes attached to the bill. He noted that the Office of Public Advocacy (OPA) projected costs of $168 thousand annually. He suggested that the costs were excessive. He stated that the estimates were based on flawed assumptions. The first assumption of OPA was that 61 percent of children already involved their parents in decisions regarding abortions. The suggestion was that the other 39 percent of teenagers who did not talk with their parents would automatically seek a judicial bypass. He opined that the reasoning of OPA was counter intuitive. He hoped that the result of the law would be more children seeking counsel from their parents. He objected to the fiscal note on the basis of OPA's estimates of $1500 per case for the costs of a judicial bypass. Senator Leman addressed the proposed amendment introduced by Senator Phillips. The amendment lowered the age of consent from 18 to 16. He expressed opposition to the amendment. He believed that the amendment undermined the purpose of the legislation as it limited the population affected. Senator Leman reminded the committee that the existing law in Alaska required consent for children under the age of 18. He stated that SB 24 did not alter the existing requirement. He stated that virtually every state with parental involvement laws listed the age of consent as 18. He opined that a vote to lower the age to 16 would result in a weaker parental consent law for Alaska. He stated that the majority of pregnancies occurred at ages 16 and 17. He stressed that lowering the age to 16 severely undermined the reach of the legislation. He believed that if the age of consent was lowered to age 16, parental authority would be compromised. He strongly advised holding the age of 18 rather than changing it to 16. Senator Leman concluded that the bill provided a common sense approach that enjoyed broad public support. He expected some criticism from the public testimony. He requested that committee members remember that the statutes were viewed as sound public policy when first passed and they continued to enjoy the same public support. He noted that other state's parental involvement laws were passed with broad bipartisan support. Senator Phillips understood that the amendment lowered the age of consent to age 16. He pointed out a copy of an article from the Juneau Empire supporting the bill. The article stated that a minor under the age of 16 could not use firearms, get married or receive minor or major medical procedures without parental consent. He deduced that since abortion was a medical procedure, it required parental consent. Senator Leman responded that juvenile laws in Alaska were well established and distinctions were made for varying ages for varying issues. He stressed that the real issue was that of parental involvement versus pro-life or pro-choice. Senator Adams stated that the sponsor was "off-base" regarding the proposed legislation. He found the bill to be unconstitutional as written. He asked about the difference between the original bill and the Committee Substitute (CS). Senator Leman responded that the difference included a provision from the court on the judicial bypass that would be available from each magistrate. The provision was made to alleviate Senator Hoffman's concern in the prior year. He stated that the Alaska Court System would conduct an expedited procedure for access to the judicial bypass procedure. Senator Leman pointed out page 7, line 22 where the judiciary committee inserted the portion regarding the forms for judicial bypass provided at magistrate's offices. Senator Sharp asked about section 6, the repealer. Senator Leman replied that he would access the information and then respond. Senator Adams asked about the planned course of action for the legislation if sufficient votes were not available. Senator Leman responded that the rule change, in all cases provided for an expedited process without charge to the minor. He added that the procedures listed in the legislation were promoted and he could not imagine why a person might vote against the court rule changes. The changes would simplify the process for the minor. The court would continue to have the ability to make the rule changes itself. Senator Adams maintained that the bill was unconstitutional. Senator Leman voiced that Senator Adam's statement could not go unchallenged. He assumed that the claim was based on the Alaska state constitution. He noted that the same question was litigated in other states, such as Florida who ruled that the privacy clause in their constitution would cause this type of statute to be deemed unconstitutional, but in California the court ruled opposite. He mentioned that legal scholars understood the section of law and argued forcefully that the privacy clause did not cover minors to the extent that parents could not be in charge of their children's lives. He believed that a reasonable meeting of the law would conclude that there was a distinction between minors and adults and that the law, as crafted would be constitutional. Senator Pearce expressed a concern about the bill, which was found on page 5, lines 24-31 addressing the test that the court must meet for judicial bypass. She requested a study in the early 1990s regarding teen birth rates in Alaska. The study showed that three teenagers per day gave birth in Alaska, with one mother per month under the age of fifteen. She continued that more than 1200 Alaskan babies were born to teenage mothers in 1991 and 1992. The research was updated on a semi-annual basis and the findings indicated that the numbers continued to grow. She added that 33 percent of teenage births in Alaska in 1991 were to mothers under the age of 19. She agreed that many teenagers were at risk. The risk factors for teen pregnancy included poor family attachment, inattentive parenting and family management problems. She opined that the risk factors were problems of the family, not necessarily of the child. Senator Pearce continued that one of the major risk factors was a history of physical, sexual or emotional abuse. Poverty was another risk factor. The environment that the child was raised in led the child to make poor decisions. She believed that the discussion ought to focus on the root of the problem, as children with high self-esteem would say no to sex. She respected Senator Leman's personal feelings about abortion. She admitted that hers were different, but she expected the same level of respect. She expressed concern for the young mothers and fathers affected by the law. Senator Pearce continued that families in rural and urban Alaska often approved of young women's pregnancies. Teen pregnancies kept young women at home. She queried how the young mothers would find jobs to support their children with cuts in childcare assistance. She asked what would happen to the baby that was born. She noted that many of the young mothers were welfare children. The dependency cycle continued. Senator Pearce revisited page 5, lines 24-31 which addressed the pregnant teen's access to a judicial bypass. The Committee Substitute (CS) stated that the judge could allow the judicial bypass with a court finding of clear and convincing evidence of a pattern of physical, sexual or emotional abuse by one or both of the minor's parents or by the guardian or custodian, or when the consent of the parent or guardian was not in the best interest of the plaintiff. She interpreted that the abuse must be dealt by the parent. If a grandparent or uncle was the abuser, the judge could not grant the judicial bypass. She stated that she wished for every Alaskan child to have an environment that invited sharing all important information with parents, but she admitted that was not the case. She advocated for a bill with a judicial bypass for young women whose abuse was caused by someone outside of the family as well. She believed that the legislation might accidentally place teenagers at even greater risk. Senator Sharp opened public testimony. Senator Donley interrupted with a question about the intention of page 5, lines 24-31. Senator Leman agreed that the community ought to provide greater support for girls facing the challenge of crisis pregnancy. He pointed out line 27, which stated that if the court found that consent of the parent or guardian was inappropriate then the bypass would be granted. He opined that the language addressed Senator Pearce's concerns. He noted that the language was consistent with that found in the Ohio statute, which was deemed constitutional by the Supreme Court of the United States. He believed that the definition section of the bill was more complete than the one written in 1970. PAULINE UTTER, ANCHORAGE, ABORTION RIGHTS PROJECT (via teleconference), testified that abortion was legal and should remain so. She stated that the bill's purpose was to reduce a woman's right to choose. VIRGINIA PHILLIPS, SITKA, NATIONAL RIGHT TO LIFE (via teleconference), testified in support of SB 24. She advocated for support of pregnant women. She stated that the risk of breast cancer increased when a woman aborted her first pregnancy. She noted that most male relatives who were responsible for the teen pregnancy advocated for abortion. She stated that parents should be responsible for their children. PETE HALGRAN, SITKA, CHAIRMAN, REPUBLICAN PARTY OF ALASKA (via teleconference), testified in support of SB 24. He believed that the legislation provided a necessary and protective tool for Alaska's children. He pointed out that America had the highest teen pregnancy rate of industrialized countries. He stated that families had true compassion for their children. He noted that the bill was in compliance with the efforts of the Republican Party of Alaska. MS. ZACHARY, PETERSBURG (via teleconference), testified in agreement with Senator Pearce's statements regarding focus on the root of the problem. She stated that the bill focused on girl children versus women. She agreed with parental rights to protect, counsel, guide and support the minor children. A vast majority of families no longer understood how to work through the crisis of life because the government had taken the responsibility out of the family home. RUTH EWIG, FAIRBANKS, INTERIOR RIGHT TO LIFE (via teleconference), testified in support of the legislation. She stated that parental rights must be reestablished. She believed that parents were responsible for their minors. If minors were injured the parents were contacted. If a parent was approached after a minor died under anesthesia, they would be devastated. She stated that it was not the responsibility of the legislature to guess whether parents would behave responsibly. RUPE ANDREWS, ALASKA LEAGUE OF WOMEN VOTERS, testified in opposition to SB 24. He expressed concern that the judicial bypass was a "stretch of the imagination," since it assumed that teenage girls could readily access the legal system in the state. He pointed out page 4, line 9, which contained ambiguous language. He stated that a young girl who was traumatized by a pregnancy could access the legal system for the judicial bypass. He stated that the League of Women Voters surmised that the bill presented bad social and public policy because it added additional trauma to the teenager's already difficult situation. He opined that the policy would not reduce teenage pregnancies. He stated that the bill would not improve familial communication. DR. PETER NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH, testified that parents should be involved in their children's health care. He mentioned Senator Leman's quoted statistic that 61 percent of the pregnant minors accessed parental consent prior to seeking abortion. Another 20 percent accessed a member of the clergy, teacher, or adult family friend. Of the remaining children, one-third lived in abusive families with situations that created the possibility of violence and coercion if the child was forced to return to the environment. He did not believe that a law forcing a child back into an abusive situation was a healthy law. He added that acquiring a judicial bypass in the state was difficult to obtain. He mentioned the question regarding parental consent for ear piercing. He noted that the consequence of bypassing the consent procedure was more significant in the case of abortion than in the case of an ear piercing. He stated that it would be bad medical practice to limit the availability of the abortion in a safe facility by a trained professional. While a friend could pierce a person's ears, having a friend induce an abortion was dangerous. Dr. Nakamura responded to the statement that abortions were expensive. He agreed, but noted that carrying an unwanted pregnancy to term was more expensive. He responded to the statement that the incidence of breast cancer increased following termination of pregnancy. He cited a study from the New England Journal of Medicine including one and one-half million women in Denmark that demonstrated no increase in breast cancer. He stated that the editorial comments demonstrated why some of the previous studies were wrong. He stated that there was no increase in breast cancer following abortion procedures. He commented on the safety of the abortion procedure, which he opined was safer than carrying a pregnancy to term. DAVID ROGERS, ALASKA WOMEN'S LOBBY, testified in opposition to the legislation. He agreed that minors should talk with their parents prior to making a decision about a teenage pregnancy. He stated that some teenagers will not talk with their parents likely because they live in a home with emotional and physical violence or because the pregnancy was the result of sexual abuse of a family member. He agreed that the courtroom was intimidating for young women in the situation. He stated that there was likelihood that the children would seek abortions in other states or in an unsafe environment. According to the American Medical Association, a law such as SB 24 does not increase the likelihood that a minor would talk with their parents about teen pregnancy. The potential and unintended harm that might result from the legislation clearly outweighed the good facets such as encouraging parental communication and lowering birth and abortion rates. A comprehensive pregnancy prevention program was necessary. He believed that the legislation violated a teen's constitutional right to choose. Senator Phillips asked a question of Pauline Utter. He asked what age a girl becomes a woman. Ms. Utter stated that she could not determine a specific age. Senator Phillips asked Pete Halgran about the Republican Platform and its age limit. Mr. Halgran responded that the age that a girl becomes a woman was 18. Senator Phillips asked Dr. Nakamura about the percentage of women under the age of 18 who elect for abortion in Alaska. He asked how many live in urban versus rural settings. Dr. Nakamura responded that no mandate to report abortions existed in Alaska. He offered to research the Medicaid statistics and provide further information to the committee. Senator Pearce stated that statistics were not available. She cited numbers earlier in the hearing regarding abortion projections. Dr. Nakamura agreed that projections were difficult to make and were often calculated on a national level and then transferred to the state. He repeated that he could not provide absolute numbers. Senator Phillips wondered how many abortions occurred under the circumstances cited in the rural areas regarding limited communication or court room access. He wondered whether the percentage would make the information more valuable. Senator Pearce stated that the teen pregnancy rates that she spoke to were calculated using census information from the Alaska Department of Labor and Workforce Development (DLWD) and from the Alaska Bureau of Statistics. She stated that she could collect data on pregnant teens along with statistics regarding the location of the children born in the state. She voiced that abortion statistics were unavailable because they were not recordable. Senator Phillips interjected that abortion statistics were related to his question. If the proposed legislation was perceived as interfering with the current process, then the discussion was valid. Senator Parnell stated that the judiciary committee heard that the rural girls who became pregnant found communities that provided abortions. He stated that the communities that provided abortions also had court houses. Doctors were not performing abortions in communities without access to the court system. Dr. Nakamura agreed that abortions were not conducted in rural areas. He declared that the judicial system was intimidating. He could not imagine kids accessing the judicial system on a voluntary basis. Senator Parnell agreed that the legal process was intimidating. He added that the process of visiting a doctor was also intimidating. He understood that when a pregnant girl flew in from rural Alaska, she was often met by a social worker or member of a non-profit agency that helped walk her through the process. He suggested that if the support was available for the doctor's office, it would also be available for the court process. Dr. Nakamura responded that two intimidations were worse than one. Senator Pearce asked if the members of the welfare reform bill remembered if the grandparental responsibility section was enacted. Senator Parnell replied yes. Senator Pearce asked how the section worked. Senator Parnell replied that the minors would return to live with their parents. Senator Sharp asked Senator Phillips if he wanted to introduce his amendment. Senator Phillips MOVED Amendment 1. [Undecipherable] OBJECTION Senator Phillips stated that the amendment reduced the age in the legislation from 18 to 16 requiring parental consent for abortions. Senator Sharp asked for a role count. A roll call vote was taken on the motion. IN FAVOR: 4 OPPOSED: 3 Amendment 1 was ADOPTED. Senator Donley examined page 5, which was connected to page 4, lines 26-[undecipherable]. He opined that anytime a series of "or" was found in a statute, a question was raised. He wondered about drafting standards regarding interpretation. He asked if the bill drafter was in the room. He stated that it was not easily understood whether the clear and convincing standards of evidence applied to both of the clauses or only to the first. He expressed concern about the appropriateness of the standard. Senator Sharp restated the question about whether clear and convincing evidence applied to the following "ors." MIKE PAULEY, STAFF, SENATOR LEMAN, responded that the question had not been posed to the drafter. He opined that the clear and convincing standard applied to both statements on either side of the "or." He requested a drafter's opinion regarding the language. He stated that the legislation was modeled after a parental consent statute passed in Ohio, which was tested by the Supreme Court of the United States and held to be constitutional. The clear and convincing evidence standard was part of the Ohio law. He was not aware of any difficulties caused for Ohio. The question deals with the method that a court would interpret the evidentiary standard on the two sections located on either side of the "or." He suggested requesting the drafter's opinion. Senator Donley explained that his question did not address the constitutionality issue, but instead the interpretation of the court of the evidentiary standard on the two sections on either side of the "or." He asked Mr. Pauley if he knew about the court's interpretation in Ohio. Mr. Pauley responded that he did not know the answer to the question. He offered to find an answer. Senator Donley suggested that the legislature could make a drafting change to clarify the intention for the court. He was not sure that the clear and convincing standard was the best standard, but he opined that the committee ought to be very specific considering that the statute would be litigated out. Senator Parnell interpreted that clarity was Senator Donley's intention when posing the question. He MOVED that page 5, line 27 following the third "or" the words "by clear and convincing evidence" be inserted. Senator Donley agreed with the solution. He proposed discussion regarding the appropriateness of the statement, "clear and convincing standard." Senator Pearce relayed that she had asked about the definition of "clear and convincing standard" during the judiciary committee's hearings on SB 24. The representative from the Department of Law (DOL) could not provide a description of the standard at the time. As a result, she remained confused about the definition. Senator Sharp restated Amendment 2 by Senator Parnell to add after the third "or" on line 27 "the court finds by clear and convincing evidence that the." Senator Parnell explained that the amendment clarified the language and provided the opportunity for discussion regarding the debate about "preponderance" versus "clear and convincing." Senator Donley supposed that committee proceedings would not prove persuasive to a court of law. Courts tend to look to floor action. He suggested that a court might interpret the action as stating that the committee did not want the clear and convincing standard to apply to the legislation. He opined that courts often reviewed legislative records seeking language to support their intentions. He advocated for clarity of intention in the bill's language. Senator Donley stated that he would probably vote against the amendment because he was not convinced that the clear and convincing standard was appropriate. Senator Sharp stated that he planned to hold the bill in committee because another senator requested time to draft an amendment. Senator Pearce requested testimony from an expert on clear and convincing standards for further explanation to the committee. She wondered how a judge could arrive at clear and convincing evidence and continue to retain confidentiality without a discussion with the abusive parent. Senator Parnell stated that the minor female could stand in court and swear that she came from an abusive home with parents causing the abuse. Without additional adverse witness, the minor's testimony was the only testimony available. He added that a judge must weigh the credibility of the witnesses and if the minor was the only witness, and then clear and convincing became the best standard. Senator Parnell WITHDREW Amendment 2. Senator Sharp stated that the drafter of the legislation would be present during the next hearing on the bill to discuss the meaning of clear and convincing evidence. He noted that two additional people were requesting an opportunity to testify on the legislation via teleconference. BOB LYNN, ANCHORAGE (via teleconference), testified in support of the legislation. [UNDECIPHERABLE] PITTMAN (via teleconference), testified in opposition to the legislation. She disagreed with the spending of state money on legislation without good purpose. [UNDECIPHERABLE], DELTA JUNCTION (via teleconference), testified in support of the legislation. DEBBIE UNDECIPHERABLE, DELTA JUNCTION, REPUBLICAN PARTY OF ALASKA (via teleconference), testified in support of the legislation. She advocated for revisiting the welfare reform issue. LORI UNDECIPHERABLE, MATSU, ALASKA RIGHT TO LIFE (via teleconference), testified in support of the legislation. Senator Donley asked the sponsor about the guarantee of confidentiality in court. Senator Leman responded that the judge was obligated to keep all information confidential. He referred to page 7, lines 9 through 14, which identified the procedure. Senator Donley asked if a violation of confidentiality would constitute a crime. Senator Leman concurred. Senator Donley asked about page 5, lines 24 through 31. He wondered about line 26 where the judiciary version stated evidence of a pattern of physical, sexual and emotional abuse. He wondered about the requirement of a pattern. Senator Leman could not answer the question. He offered to respond at the next hearing. Senator Donley suggested that if clear and convincing evidence of even one incidence of physical abuse might prove appropriate to allow the option of judicial bypass. Senator Sharp stated that he would set the bill aside and revisit questions during the next Senate Finance Committee meeting. He voiced that the drafter would be available for the meeting to answer questions. He stated that he would entertain amendments. SB 24 was HEARD and HELD in committee for further consideration. SENATE BILL NO. 41 "An Act relating to a requirement that a parent, guardian, or custodian consent before certain minors receive an abortion; establishing a judicial bypass procedure by which a minor may petition a court for authorization to consent to an abortion without consent of a parent, guardian, or custodian; amending the definition of `abortion'; and amending Rules 40 and 79, Alaska Rules of Civil Procedure; Rules 204, 210, 212, 213, 508, and 512.5, Alaska Rules of Appellate Procedure; and Rule 9, Alaska Administrative Rules." SB 41 was SCHEDULED but not HEARD. ADJOURNMENT The meeting was adjourned at 11:56 a.m.