SENATE BILL REPORT

                   SB 6530

              As Reported By Senate Committee On:

                Law & Justice, February 3, 1998

Title:  An act relating to limiting partial‑birth abortions.

Brief Description:  Prohibiting partial‑birth abortions.

Sponsors:  Senators Swecker, Hargrove, Stevens, Benton, Zarelli, Hochstatter, McCaslin, Oke, Morton, Deccio, Wood, Strannigan, Johnson, Sellar, Roach, Schow and Anderson.

Brief History:

Committee Activity:  Law & Justice:  2/3/98 [DP, DNP].

SENATE COMMITTEE ON LAW & JUSTICE

Majority Report:  Do pass.

  Signed by Senators Roach, Chair; Johnson, Vice Chair; Long, McCaslin, Stevens and Zarelli.

Minority Report:  Do not pass.

  Signed by Senators Fairley, Kline and Thibaudeau.

Staff:  Harry Steinmetz (786-7421)

Background:  Abortion has been the subject of considerable debate, as well as judicial and legislative activity for the past few decades.  Since 1973, the United States and Washington Supreme Courts, the United States Congress, and state Legislature, and the people exercising their initiative powers have acted on the subject.

Particular attention has focused recently on abortions performed by a procedure involving partial delivery of the fetus.

Federal Court Decisions:  The U.S. Supreme held in 1973, in Roe v Wade, that a woman could, in consultation with her doctor, choose whether or not to have an abortion during the first trimester of her pregnancy, and that the states could not interfere with that decision.  During the second trimester, state regulation was permitted, at least to the extent of protecting the health of the woman.  During the third trimester, or after "viability," states could prohibit abortions, except where necessary to protect the health life of the woman.

In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court modified its Roe decision, while reaffirming (by a five to four majority) the constitutional right to an abortion.  In that case, the court significantly expanded the authority of states to regulate abortions prior to viability.  Under Casey, the test to be applied in judging the constitutionality of a state law on abortion is whether or not that law constitutes an "undue burden" on the exercise of the woman's right.

This test prohibits state legislation that has the primary purpose of placing a substantial obstacle in the way of a woman seeking to abort a non-viable fetus.  The undue burden test does not prohibit laws that have incidental effects on the expense or difficulty of obtaining an abortion.

The court has also dealt, to a limited extent, with state legislative attempts to regulate particular abortion procedures.  In Planned Parenthood of Central Missouri v. Danforth, the court struck down a law banning a certain abortion procedure (saline amniocentesis after the 12th week of pregnancy).  The court declared the law arbitrary in light of the fact that the prohibited method was the most commonly used procedure, and its ban would require the use of potentially more dangerous procedures in its place.

Federal Legislation:  Congress last year passed legislation generally banning partial‑birth abortions, but was unable to override a presidential veto.

State Court Decisions:  Following Roe, in State v. Koome, the state Supreme Court declared a parental consent requirement unconstitutional, but expressly relied on federal constitutional analysis in doing so.  The court has not addressed abortion under independent state constitutional provisions or analysis.  Up to now, the state court has not considered a case involving a law regulating or prohibiting a particular method of performing an abortion.

State Legislation:  In 1991 the people approved Initiative 120, which codified the basic holding of Roe v. Wade.  The initiative declares that "every woman has the fundamental right to choose or refuse to have an abortion," except as specifically limited by the terms of the initiative.  It further declares that, except as specifically permitted by that law, "the state shall not deny or interfere with a woman's fundamental right to choose or refuse to have an abortion prior to viability of the fetus, or to protect her life or health."  It is a class C felony to perform an abortion on a viable fetus.  Viability is defined as " the point in the pregnancy when, in the judgment of the physician on the particular facts of the case before such physician, there is a reasonable likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures."

Summary of Bill:  Partial‑birth abortions, defined as partially vaginally delivering a living fetus before killing the fetus and completing the delivery, are prohibited, except where necessary to save the life of the mother and no other medical procedure would suffice.  Unauthorized performance of such an abortion is subject to a fine of not more than $4,000 and not more than four years in prison.  A woman upon whom a partial‑birth abortion has been performed may not be prosecuted.

The accused physician may seek a ruling from the State Medical Board on the necessity of the abortion.  The findings of the board are admissible in a trial of the defendant.

A civil cause of action for damages is created against anyone who illegally performs such an abortion.  The action may be brought by the father if he and the mother were married at the time of the abortion, and/or the maternal grandparents if the mother is a minor at the time of the abortion.  If the pregnancy is the result of criminal conduct of the plaintiff or if the plaintiff consented to the abortion, the cause of action may not be brought.  Damages may be recovered for physical or psychological injury, and statutory damages of three times the cost of the abortion are allowed.

The bill contains a referendum clause.

Appropriation:  None.

Fiscal Note:  Requested on January 29, 1998.

Effective Date:  The bill contains a referendum clause and takes effect upon voter approval at the next general election.

Testimony For:  This procedure involves killing a living human being.  The state regulates medical procedures all the time and this procedure is worthy of regulation.  There is no medical reason for this procedure.  The AMA found it was unnecessary.  Those in favor of the procedure are using junk science.  This bill is not unconstitutional and in no way conflicts with the Roe v. Wade decision.

Testimony Against:  This bill hinders the ability of physicians to make the best medical decisions for their individual patients.  It is unclear because it doesn't use medical terminology to identify the outlawed procedure.  It forces the physician to focus on whether or not they will be prosecuted rather than the welfare of their patient.  It requires to physicians to make their patient's health something less than their primary priority.  The bill is unconstitutional and has been struck down in every other state that has tried to enact a similar measure.

Testified: PRO: Senator Swecker, prime sponsor; Jim Golbract, Facts for Freedom; Shavena Schilling, Washington State Grange; Camile De Blasi, Ed. Dir., Human Life of Washington; Dr. John Strong, Human Life of Washington; Fred Gustafson, CON: Dr. Suzanne Poppema, Med. Dir., Aurora Medical Services; Dr. Joe Mancuso, Incoming President, American College of Obstetricans and Gynecologists; Lisa Stone, Northwest Women's Law Center; Fred Janson.