Dissent to HB 2973 H.D.2 by
Representatives Ed Case, Cynthia Thielen and Marilyn Lee

We respectfully dissent from the recommendation of your Committee on Judiciary favoring passage of House Bill 2973, House Draft 2, relating to "partial-birth abortions", on the grounds that the bill: (1) is unconstitutional under both our federal and state constitutions; (2) unnecessarily interferes in the doctor-patient relationship and precludes the full range of medical options necessary to preserve the life and health of a woman; (3) represents the unwarranted intrusion of religion into public policy; and (4) is ultimately directed at reversing the United States Supreme Court's 1971 decision on Roe v. Wade.

A. The Law

1. Background. Abortion is, of course, one of the most difficult and divisive issues of our time. This is because it combines in a single debate deep societal differences over such basic concepts as life, health, privacy, religion, medicine and government.

This divide is only exacerbated when the issue is what its opponents have denoted as "partial-birth abortion". This is because the phrase refers for the most part to a late-term pregnancy termination procedure which leaves any reasonable person with feelings of great emotion and concern.

Public opinion, which we believe both nationally and locally continues to support a woman's ability to make informed choices about pregnancy in consultation with her doctor, is probably less supportive of later-term abortions. It is therefore no surprise that those who oppose Roe v. Wade and a woman's right of choice generally have focused their opposition in this area.

2. Federal and state constitutions. Each of us, when we undertook our responsibilities as members of the legislative branch, swore to "support and defend the Constitution of the United States, and the Constitution of Hawaii . . . ." It follows that we should know what is required of us as legislators under the federal and state constitutions regardless of public opinion or our own personal beliefs.

On abortion, Roe v. Wade remains the seminal decision of the U.S. Supreme Court setting forth federal constitutional requirements and protections. These have been refined and reiterated in subsequent decisions, most notably Planned Parenthood v. Case (1992), but the basics remain the same.

Essentially (risking oversimplification), the law of our land is that a woman may choose to abort up to the point of fetal "viability," meaning the ability to survive outside the mother's womb. "Viability" is a medical concept to be determined by medical doctors. After viability, a woman's right to an abortion may be restricted by a state "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother . . . ."

These federal constitutional requirements arise from basic due process, including the right of privacy which has been inferred from the U. S. Constitution. In contrast, our State Constitution includes at Article I, Section 6 an express right of privacy, and the history of that provision reflects that it was proposed and ratified in part to assure a woman's right of choice. Thus, while the Supreme Court of Hawaii has not directly addressed the state constitutionality of state abortion laws or regulations, there is every legal reason to expect that it would afford greater constitutional protections to women than already mandated under our federal constitution.

Bills similar to this proposal have been enacted in other states and subsequently challenged on federal and state constitutional grounds. Of the thirteen state statutes thus far challenged, eleven have been ruled unconstitutional. These include Alaska and Montana, whose constitutions include express rights of privacy similar to Hawaii's.

B. The Proposal

"Partial birth abortion" is not a medical term, but section 1 of the current proposal describes the medical procedure of "intact dilation and extraction" ("intact D & X"). That section also proposes legislative findings that there are "no medical conditions" under which intact D & X is appropriate, and that this bill has "no impact on a woman's right to choose an abortion consistent with Roe v. Wade . . . ."

Section 2 of the draft proposes a new chapter with three proposed new statutory sections. The second of these (Definitions) defines "partial-birth abortion" broadly, not intact D & X specifically, and could therefore encompass many other termination procedures.

The first proposed new statutory section (Partial birth abortions prohibited) states that a physician may not knowlingly peform a "partial-birth abortion" "after the nineteenth week of a woman's pregnancy" (although viability is medically recognized as occurring not until several weeks later). An exception is proposed where necessary to "save the life" of the woman (but not to preserve her health).

The third proposed new section (Civil action; relief) gives the "father" the right to bring civil action against the physician performing an unauthorized "partial-birth abortion". The "maternal grandparents" are provided the same right if the "mother" is under the age of eighteen.

C. Dissent

1. Unconstitutionality. We do, on occasion, propose laws as to which there is a reasonable question of constitutionality. But where we support proposals which are clearly unconstitutional, we violate our legislative oath.

This is a case of the latter. First, the bill is unconstitutionally void for vagueness because it does not adequately describe to women, physicians and others what they can and cannot do. Second, in violation of Roe v. Wade, it either provides a legislative (not medical) definition of viability, or precludes a woman's constitutional right of choice between the nineteenth week and viability. And third, in direct violation of Roe v. Wade, it provides no exception for post-viability terminations necessary to preserve the woman's health.

2. Public policy. One of the cornerstones of our public policy in the area of health is the preservation of the doctor-patient relationship. This relationship will assume even greater importance, and will come under increasing attack, as medical advances present increasingly difficult decisions.

Ultimately, these decisions are best left to the personal, moral, ethical and religious convictions of patients and those close to them in consultation with the medical experts they trust. This proposal, of course, runs directly contrary to that sound public policy.

Additionally, the testimony and medical literature clearly demonstrate that intact D & X, while a little-used procedure, may nonetheless be the most appropriate procedure in certain circumstances to preserve a woman's life and health. Its legislative preclusion is not only unconstitutional, but denies to physicians and their patients the full range of medical options to address widely differing circumstances.

3. Religion. The proper role of religion in government is its own divisive current issue. The testimony on this bill made clear that many approach this question from a religious perspective, and that there are diverse religious views.

The right of citizens to support or oppose a legislative proposal based on their religious beliefs is unquestioned, just as is the right of any woman to apply the role of religion in her life to the incredibly difficult decision to terminate a pregnancy. But, given the diversity of religious thought in our state and country as well as our constitutional tradition (and mandate) of religious tolerance, government should avoid taking sides in religious disagreements or imposing specific religious beliefs on others.

4. Roe v. Wade. When the dust clears, this bill must ultimately be recognized as part of a carefully-crafted national effort to overturn Roe v. Wade and restrict if not deny a woman's right of choice. That decision has been as difficult throughout its history as the issue it addresses, but, as the U. S. Supreme Court noted in Planned Parenthood v. Casey, it has not proved "unworkable".

For this and all other reasons discussed above, we cannot and should not participate in this effort. Nor are we alone in this conclusion: among those testifying against this proposal were the Department of Health, Hawaii Medical Association, American College of Obstetricians & Gynecologists, Hawaii Women Lawyers, American Association of University Women, League of Women Voters, First Unitarian Church, and many other organizations and individuals. We therefore cannot recommend passage of H.B. No. 2973, H.D.2 on third reading.

Respectfully submitted by the following members of your Committee on Judiciary

Ed Case, Member

Marilyn B. Lee, Member

Cynthia H. Thielen, Member

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