Legislature(2003 - 2004)

04/16/2004 08:08 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
            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                                                               
     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                                                               
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                                                               
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                                                               
     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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                               

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