SENATE JUDICIARY COMMITTEE April 7, 1997 1:30 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Mike Miller Senator Sean Parnell MEMBERS ABSENT Senator Drue Pearce, Vice-chair Senator Johnny Ellis COMMITTEE CALENDAR HOUSE BILL NO. 65 am "An Act relating to partial-birth abortions." PASSED HB 65am OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS PREVIOUS SENATE COMMITTEE ACTION HB 65 - See Senate State Affairs minutes dated 4/1/97. WITNESS REGISTER Cecilia Kleinkauf 2220 North Star St. #2 Anchorage, AK 99503 POSITION STATEMENT: Opposed to HB 65 Ernie Line 2645 Whispering Woods Dr. Wasilla, AK 99654 POSITION STATEMENT: No position stated on HB 65. Gerry Knasiak 119 Austin #611 Ketchikan, AK 99901 POSITION STATEMENT: Opposed to HB 65. Lisa Krebs 801 Lincoln St. Sitka, AK 99835 POSITION STATEMENT: Opposed to HB 65. Karen Burger P.O. Box 1194 Soldotna, AK 99669 POSITION STATEMENT: Supports HB 65. Lisa Penalver P.O. Box 74264 Fairbanks, AK 99707 POSITION STATEMENT: Opposed to HB 65. Theda Pittman Alaskans for Pro Choice 4720 Eagle #1 Anchorage, AK 99503 POSITION STATEMENT: Opposed to HB 65. Alice Johnstone 213 Shotgun Alley Sitka, AK 99835 POSITION STATEMENT: Opposed to HB 65. Jean Gerstner P.O. Box 1245 Soldotna, AK 99669 POSITION STATEMENT: Supports HB 65. Virginia Phillips 404 Lake St., Apt. 2D Sitka, AK 99835 POSITION STATEMENT: Supports HB 65. Kathleen Hoffman HC 1 Box 131E Soldotna, AK 99669 POSITION STATEMENT: Opposed to HB 65. Cindy Irmen P.O. Box 4191 Soldotna, AK 99669 POSITION STATEMENT: Supports HB 65. James Jenckes 616 Maple Dr. Kenai, AK 99661 POSITION STATEMENT: Supports HB 65. Joanne Jenckes 616 Maple Dr. Kenai, AK 99661 POSITION STATEMENT: Supports HB 65. Dr. Peter Nakamura Director, Division of Public Health Department of Health & Social Services P.O. Box 110610 Juneau, AK 99811-0610 POSITION STATEMENT: Opposed to HB 65. Pat Stringer P.O. Box 34657 Juneau, AK 99803 POSITION STATEMENT: Supports HB 65. Tom Gordy P.O. Box 34832 Juneau, AK 99803 POSITION STATEMENT: Supports HB 65. Sid Heidersdorf P.O. Box 658 Juneau, Alaska 99801 POSITION STATEMENT: Supports HB 65. Carla Timpone Alaska Womens' Lobby 211 Fourth St. #108 Juneau, AK 99801 POSITION STATEMENT: Opposed to HB 65. ACTION NARRATIVE TAPE 97-26, SIDE A Number 000 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:30 p.m. Present were Senators Miller, Parnell, and Chair Taylor. HB 65 was before the committee. Chair Taylor announced he would take testimony from teleconference sites in a rotating fashion. HB 65 PARTIAL-BIRTH ABORTIONS  CECELIA KLEINKAUF testified from Anchorage in opposition to HB 65 because the decision regarding a partial-birth abortion is one best left between a woman and her physician. She read a brief summary of testimony before Congress on this matter by a woman who underwent a partial birth abortion after discovering the fetus had severe abnormalities and would not survive delivery. The pregnancy was terminated using a different procedure. HB 65 takes the choice away from women and doctors when they have to make a decision in extremely devastating circumstances. She urged the committee to vote against HB 65. Number 086 ERNIE LINE , testifying from Mat-Su, stated no position on HB 65. During the last teleconference on HB 65, he suggested HB 65, if passed, should provide for the relief of women forced to deal with anomalies, such as a building in which care would be provided by the State or money sufficient for the parent/s to provide the necessary care for these children who would be forced to live in the most atrocious of circumstances. GERRY KNASIAK testified from Ketchikan on behalf of the Pro-Choice Coalition, and herself, in opposition to HB 65. She discussed testimony in June of 1995 before the Congressional House Judiciary Committee by a woman who underwent a partial-birth abortion. At 36 weeks during the woman's pregnancy an ultrasound determined severe fetal abnormalities that would prevent the fetus from surviving outside of the womb. After multiple conferences with specialists, genetic counselors, and family members, the couple decided to terminate the pregnancy. The emotional turmoil of continuing the pregnancy, knowing the fetus was having seizures, was too difficult. The congenital abnormalities were lethal to the fetus, and could have been to the mother. A compassionate specialist explained the procedure and the family felt confident they made the right decision. She believes this decision should be left within the intimacy of the family unit as they are the ones that have to live with the decision. Number 177 LISA KREPS testified from Sitka in opposition to HB 65 and read the following letter she sent to committee members about her experience with a partial birth abortion. "Please take the time to consider my case and others like it when you vote on Bill No. 65. At age 26, I was married teaching high school, and looking forward to the birth of my first child. I was twenty-seven weeks pregnant when I went to have a routine ultra-sound, the one that often can tell the gender of the child. My husband and I went to that appointment filled with excitement and anticipation. Instead of the sex of our child, we were told that the baby had a rare syndrome called "prune belly syndrome" which meant that it had no anus or urethra. The baby could take in amniotic fluid, but none could then get out. As a result, the baby's bladder was filling up like a water balloon. Alreday it had expanded into most of the stomach cavity, the heart was still beating, but there would be no place for the lungs to develop. We were told by our doctor, a second OB/GYN, and a specialist, that although the baby could continue to live through the ninth month, once it was born, it would die immediately because of the undeveloped lungs. We were given two options: carry the baby another thirteen weeks, deliver it, and it would die. Or, I could have labor induced, deliver the baby, and it would die. Due to much pressure from many "anti-choice" friends and relatives, and my own reluctance to make a decision, I carried the baby for another three weeks, knowing that it was dying inside of me. As the kicking became stronger, I began to worry that the stretching of this tiny baby's stomach area was causing it pain. The stress of the whole situation was also beginning to take its toll on me. Nobody could assure me that the baby was not feeling pain. They simply couldn't say. I could no longer eat or go to work. At the end of my thirtieth week, I was induced at a hospital and delivered a baby girl. She did not survive the delivery. Her abdomen was swollen to at least twice the size of her head. She had my husband's cleft chin. Please amend Bill No. 65 to make allowances for cases where the mother's health is endangered, the baby is severly malformed, or the baby has no chance of surviving. Please allow women to make these very difficult decisions. No woman wants to have a third trimester abortion. There are times when it is the best decision in a very sad situation. Thank you for your consideration. Please feel free to contact me if you have any comment or questions." Ms. Kreb asked the committee to also consider the case of a close friend who learned from an ultrasound at her seventh month of pregnancy that the baby had one-fourth of a brain. Ms. Kreb does not believe a woman should be forced to abort a malformed baby, but she does not believe a woman should be denied that choice. No one plans to have a severely malformed child. Number 211 KAREN BURGER testified from Kenai in support of HB 65. She opposes any type of abortion and believes anyone who makes this decision will have God to answer to. LISA PENALVER , President of the Fairbanks Coalition for Choice, testified in opposition to HB 65. She read the following story of a family faced with the decision to undergo a partial birth abortion. `Mary Dorothy Lyons is a registered Republican and a practicing Catholic and in April of 1996 she found out she was pregnant with her first child and was very happy. Nineteen weeks into her pregnancy the ultrasound indicated that there was a problem that the head was much too big, but the physician recommended that they wait a few weeks and have another ultrasound. The problem was called hydrocephalus [ph] where the baby's head was filled with fluid and the brain could not develop. "As practicing Catholics, when we have problems and worries, we turn to prayer. We believe that God would not give us a problem if we couldn't handle it. This is our baby, everything would be fine. We never thought about abortion. A few weeks later they did a couple more ultrasounds and the problem was still there. We asked about in-utero operations and removing the fluid but were again told that there was nothing we could do. We were devastated. I can't express the pain we still felt. This was our precious little baby and he was being taken from us before we even had him. My doctors, some of the best in the country, recommended the intact dilation and evacuation procedure (IDX). No scissors were used, and no one sucked out our baby's brains as being depicted in the inflammatory ads supporting this legislation. A simple needle was used to remove the fluid, the same fluid that killed our son, to allow his head to pass through the birth canal undamaged. Our baby never developed a brain. His head was filled with fluid and he had no stomach. This was not our choice, this was God's will. My doctors knew that we would want to have children in the future, even though it was the furthest thing from my mind at the time. They recommended the best procedure for me and my baby. Because the trauma to my body was minimized by this procedure, I was able to become pregnant again. We are expecting another baby in September. I pray everyday that this will never happen to anyone again, but it will, and those of us unfortunate enough to have to live with this nightmare need a procedure that will give us hope for the future. Our elected officials need to hear the truth. The truth does make a difference when people listen. Most people do not understand the real issues. It is women's health, not abortion, and certainly not choice. We must leave decisions about the type of medical procedure to employ with the experts in the medical community and with the families they affect. It is not the place of government."' Ms. Penalver concluded that opponents of abortion have claimed that women have later procedures for "convenience" but there is nothing convenient about the physically grueling experience of the invasive medical procedures involved in late abortions. There is nothing convenient about making the tough decision to have a late abortion when a child is wanted, or travelling across the country to find one of a handful of providers, or paying the substantial cost of care. There is only the hardest decision a woman will likely ever make arising from her own best judgment and her doctor's and the legal system that respects that they, not the government, are the most qualified to make that decision. Number 280 THEDA PITTMAN testified for the Alaska Pro-Choice Alliance in opposition to HB 65. She disagreed with previous testimony in the House that the body of court law which covers the subjects of viability and women's health does not apply to this issue. The U.S. Supreme Court has differentiated between laws affecting pregnancy before and after viability of the fetus. HB 65 does not address viabilty, and presumably applies to the entire term of pregnancy, and consequently will fail to meet a constitutional challenge on those grounds. Second, during a floor debate, the House refused to include an exception for the health of the woman. Again, people were told it does not matter, however it is very clear in the case law that if abortion is banned, exceptions for the life and health of the woman must be provided. In the case of partial-birth abortion, banning intact D&E procedures would require physicians to substitute other procedures which may not, in a given instance, be the best for the particular woman in question. If HB 65 passes, a physician would be in the position of having to offer to perform the second best procedure, yet the second procedure could be confused with the first because of the language used and legal problems could arise. ALICE JOHNSTONE testified on behalf of Sitkans for Choice, and herself, in opposition to HB 65. Decisions regarding such difficult medical procedures and conditions must be made by the client and the physician using his/her trained medical judgment and the knowledge of each individual case. HB 65 abridges the rights and responsibilities of physicians and gives the decision to medically untrained legislators. She asked committee members to vote against HB 65. Number 323 JEANNE GERSHNER testified from Kenai in support of HB 65 because although our society always looks for a quick fix, murder is not an option for anybody. Babies cannot speak for themselves, therefore an adult must stand and speak for them. She said she believes in miracles and that a child can be touched in the womb of a mother and be healed. She spoke of a child who was never supposed to be able to speak or walk, yet the mother proved the medical community wrong and taught the child to walk, speak and even play the piano. VIRGINIA PHILLIPS , Republican District 2 Chair and National Right to Life spokesperson for American Indians and Alaska Natives, testified in support of HB 65 because a partial birth abortion is a barbaric surgical procedure which is never the best, or only, way to perform an abortion on a woman. Women have been victimized enough. A breach birth, which this procedure is, is so hard on a woman's body that every effort is made to turn the baby to a normal birth position and if the baby cannot be turned, a caesarean section is performed. She asked committee members to support HB 65. KATHLEEN HOFFMAN testified from Kenai and read the American Creed, preceded by a short introduction as follows. "What makes the United States different from most other nations? Part of the secret of America's success is revealed in the American's Creed. The year was 1917. The Great War was raging in Europe and a nationwide contest was sponsored for the writing of a brief statement of the political philosophy of the United States. The winner was William Tyler Page of Maryland with his American's Creed. I believe in the United States of America as a government of the people, by the people, for the people whose just powers are derived from the consent of the governed, a democracy in a republic, a sovereign nation of many sovereign states, a perfect union, one and inseparable, established upon those principles of freedom, equality, justice, and humanity for which American patriots sacrificed their lives and fortunes. I therefore believe it is my duty to my country to love it, to support its Constitution, to obey its laws, to respect its flag, and to defend it against all enemies." Ms. Hoffman said she could not help but think how the very foundations of our nation are being eroded away. She said today one of our enemies is abortion, including partial birth abortion and that our country is being destroyed from within. Another enemy is apathy. Many people get very upset about animal rights yet seemingly overlook the murder of their own species in and outside of the womb. Ms. Hoffman stated we should begin to defend our country against all these enemies by banning partial birth abortions in Alaska. Number 385 CINDY IRMIN testified from Kenai in support of HB 65 because our civilized nation is returning to barbarianism. She believes "it is a big cop-out that they can't carry the baby." She stated it would be difficult to carry the pregnancy full term, but questioned why anyone would kill the baby and have that on one's conscience if the baby is going to die anyway. JAMES JENKES testified from Kenai in favor of HB 65 and made the following comments. When the U.S. Senate considered this type of bill last year, it was told that this procedure was rarely used and that only a few hundred were performed to save the mother's reproductive capability. It has since been discovered that a spokesman for the abortion industry, who was quoted in the New York Times, said he lied through his teeth about this and that many of these procedures have been done. One hospital in New York alone had done about 1300 last year. If the abortion advocates lied about this, he questioned whether anything they say can be trusted. He believes this procedure is being used as a convenient way to end a pregnancy. In response to testimony about women who chose this method because of severe abnormalities, he thought those conditions to be rare and that other procedures can be used. JOANNE JENKES testified from Kenai in support of HB 65 because she believes abortion is done more for convenience than for medical reasons and that this diabolical procedure should not continue. She said "politicians, as a whole, seem to want to deny that God has created life and will terminate it when he will. You can deny God all you want but that doesn't mean that he isn't the life giver and life taker. Abortion in any form is murder. We, as a society have, and will, continue to suffer the consequences of this murder." She concluded by asking committee members to support HB 65. Number 429 DR. PETER NAKAMURA , Director of the Division of Public Health, Department of Health and Social Services (DHSS), directed his comments on HB 65 to the medical procedure itself, and not from any philosophical or religious perspective because anyone who makes this choice must do so based on their own sincerity in their beliefs. Medical procedures are designed specifically for the purpose of either protecting an individual's health or their life. Sometimes these procedures are gruesome when described but unless one believes this procedure was designed to meet a physician's sadistic needs, one must assume the procedure is used for a medical reason. In 1995 in Washington State there were three late term abortions reported as required: two were performed because the fetus was malformed; the third was for the health of the mother. It is not a procedure used often, and occurs during the third trimester, past the period of viability. A number of procedures are available for pre- and post-viability abortions, but that decision is made by the physician and patient depending on the individual situation. He, as a physician, could not make that decision for another physician or patient. He emphasized that if HB 65 only addresses a medical procedure, the decision should be left to the physician and patient. Number 463 CHAIRMAN TAYLOR asked Dr. Nakamura if he could provide statistics on the number of children that do not survive birthing. DR. NAKAMURA stated if Chair Taylor was referring to infants who survive a full-term pregnancy but do not survive shortly after delivery, he would have to search for that specific number. CHAIRMAN TAYLOR said it seems to him, except for ultrasound tests, in most instances no one would know whether a fetus is malformed. DR. NAKAMURA said generally not, but sometimes a pregnancy does not progress appropriately or the uterus expands too rapidly which would alert a physician to problems. He added that in a former hearing a legislator described a number of processes; the descriptions were unfair. One process was described as analagous to pulling a Christmas tree out of a closet with the implication that there is only one way it can be removed. That is not true of a delivery; each condition is specific. Number 485 CHAIRMAN TAYLOR noted he has read several articles during the last few months that were provided as follow-up to the debate that occurred in Congress. Many of the articles were written by nationally syndicated columnists who are pro-choice, however they were offended by the quality of testimony given before Congress in that one of the witnesses admitted to a misrepresentation as concerned the number of late term abortions that are occurring in the United States. He asked Dr. Nakamura if, through his research, he could discount or validate the comments made in those articles. DR. NAKAMURA replied the best source of information can be obtained from those states that mandate reporting of abortions: Washington is one of those states, Alaska is not. He offered to compile the data from all states that mandate reporting and provide it to the committee. CHAIRMAN TAYLOR asked if any information is available from states that do not mandate reporting. DR. NAKAMURA answered it would not be available because there is no source of reporting. CHAIRMAN TAYLOR asked if some of those states that mandate reporting have restrictions on late term abortions. DR. NAKAMURA said he was sure they all have some restrictions. CHAIRMAN TAYLOR thought there would be a reticence in reporting such late term abortions. DR. NAKAMURA thought there would not be a reticence because reporting is required by law. Number 485 CHAIRMAN TAYLOR said in the states with mandatory reporting and restrictions, the numbers will not be high; however the comments in the news articles may be accurate if applied to states that do not mandate reporting and have no restrictions. DR. NAKAMURA agreed to supply whatever information he could find. PAT STRINGER directed her testimony toward the argument that late term procedures are performed when it is known the baby has severe birth defects and will die shortly after birth and the mother's well-being and mental health is at issue, and read the following statement. "In 1980, she and her husband had such a child. To say the mother is not at her best emotionally at such a time is an understatement. At the moment of Sarah's birth, I was very much dependent on the counsel I received from the physician in attendance. Birth defects are never easy to deal with for the mother, the father, the siblings, grandparents or the physician. To have such an option as partial birth abortion available at such a time is truly cruel to all parties concerned. Our baby flew to Seattle and lived 25 days in the neo-natal intensive care unit at Children's Hospital paid for by private insurance and donations through the March of Dimes. It was traumatic enough to deal with a sick and dying child. It would have been an entirely separate matter to deal with the guilt incurred had I knowingly had any part in my own child's death. Such thoughts as convenience, or mercy killing, easily come to mind. Grief is one emotion for a mother to work through, guilt is quite another. For this reason, I believe the partial birth abortion of a child who will not live, to protect the mother's psyche, is a misconception that she will live to regret. Many physicians, nurses, flight attendants, as well as specialized equipment and intensive care technology fought to save my child's life. It was assumed her life was precious and worth saving if at all possible. I needed then, and I still need, the comfort and peace of knowing that everything that could be done to save my child's life was done. The ultimate decision of who lives and who dies should remain in the hands of the Creator. Thank you." Number 540 TOM GORDY made the following comments on behalf of the Christian Coalition of Juneau. Even though he is opposed to abortion, passage of HB 65 may not stop a single abortion from occurring. HB 65 is not a referendum on abortion; it is a referendum on a procedure. This procedure has been labelled by Congress as "partial-birth abortion." The doctor who created it called it DNX, an acronym for dilation and extraction. The most troublesome aspect is that the medical community does not recognize the procedure as a legitimate medical procedure. The Christian Coalition of Juneau urges the Legislature to pass HB 65 and ban this procedure from ever becoming a legitimate one in Alaska. He questioned whether this procedure is ever absolutely necessary to save the life or preserve the health of the mother. When President Clinton vetoed the partial birth abortion ban that was passed by Congress, over 300 physicians, mostly obstetricians, united to oppose the partial birth abortion and declared that it is never medically necessary. He questioned whether this procedure is recommended because when this procedure is performed, labor is induced and the child is placed in the breach position. Breach births often result in caesarean section surgery because a breach birth is very dangerous for both the baby and mother. He encouraged the committee to wholeheartedly support HB 65 and to not weaken it by permitting it for reasons of health. Former testimony before Congress disclosed that 80 percent of the procedures performed by the doctor who established the procedure are on healthy women, and another doctor testified that 22 percent were performed because of depression. TAPE 97-26, SIDE B SID HEIDERSDORF testified on behalf of Alaskans for Life and made the following remarks. Opposition to HB 65 is an attempt to defend the indefensible. Although partial birth abortion has been described as gruesome, that is not the reason Alaskans for Life oppose it; the reason for its opposition is that it victimizes a human baby. Regarding the sanctity of the physician-client relationship, when a pregnant woman visits a physician, there are two patients. In every profession there are professionals who operate on the fringes, and it is the state's responsibility to set parameters on behavior. In retrospect, we know that something should have been done to stop the doctors during the Nazi regime. The state will not be hurting medical practice by outlawing partial birth abortions. He encouraged committee members to support HB 65. Regarding the health provision, the Supreme Court defined health in a very broad and liberal way and allowed abortion on demand. The request for a health provision in HB 65 will simply destroy the bill and it will accomplish nothing because psychological reasons, age or marital status, etc. will be taken into account. He questioned how our society has accepted the idea that only killing a few babies is permissible. Alaskans for Life is opposed to killing one. It is unfortunate that HB 65 may not stop abortions from occurring, but it does stop one procedure. The Nazi regime based its killing programs on the logic that certain lives were not worth living therefore should be ended. Once that idea is accepted, a society is on its way to creating a culture of death. Number 520 CARLA TIMPONE testified on behalf of the Alaska Womens' Lobby in strong opposition to HB 65. This bill would set bad precedent and bad public policy by restricting a woman's right to choose this procedure by outlawing what the American College of Obstetrics and Gynecology, and many other medical professionals, consider to be a legitimate medical procedure that may be the safest and most appropriate in some cases. This procedure is associated with severe abnormality incompatible with life after delivery. Many women from all walks of life have used this procedure to terminate wanted pregnancies and have shared their stories in the hope that other women faced with the same difficult and devastating diagnosis will have the same medical option available to them. The Womens' Lobby believes this is a very difficult, very personal, decision that must continue to be made solely by the families involved and their doctors. Number 507 CHAIRMAN TAYLOR noted the focus of the March of Dimes used to be polio; now it is birth defects. He felt society is now placing birth defects on a very delicate set of scales by accepting the idea that by using and depending on current diagnostic procedures, we will make a determination about the extent of birth defects and then after notifying the parents of those defects, try to justify termination. Without the use of current technology, people would not be put in a position to decide. He said he is very troubled about who makes the determination that the birth defects are extensive enough to warrant termination. He noted a cleft palate or clubbed feet are considered defects. He added that national testimony revealed that this procedure was occurring much more frequently, and for more reasons, than we were lead to believe, and for healthy women and babies who failed to exercise other options at an earlier point. MS. TIMPONE replied that she believes that women who have undergone this procedure testified that the baby did not have a birth defect, but a severe abnormality that prohibited it from living outside of the womb, not something as simple as a cleft palate or as serious as loss of a limb. She hoped there are not responsible physicians in this country that would suggest to a woman whose child was determined to have a cleft palate that a viable option was to have a late term abortion. She was not aware of any such cases. There being no further testimony, SENATOR MILLER moved HB 65 am out of committee with individual recommendations. There being no objection, the motion carried. CHAIRMAN TAYLOR adjourned the meeting at 2:54 p.m.