04/16/1996 03:07 PM House HES

 HJR 50 - FREEDOM OF CONSCIENCE - BILL OF RIGHTS                             
                                                                               
 Number 828                                                                    
                                                                               
 REPRESENTATIVE ROKEBERG commented this bill had more referrals than           
 a hooker in Subic Bay.                                                        
                                                                               
 REPRESENTATIVE TERRY MARTIN, Sponsor of HJR 50, said people may be            
 wondering why there was a need to address the constitutional right            
 of freedom of conscience.  Ironically, Alaska is one of the few               
 state constitutions that does not guarantee freedom of conscience.            
 Most constitutions from the very beginning of the revolution                  
 (indisc.) England, especially the Mayflower Compact was very clear            
 that freedom of conscience was a higher inalienable right than                
 freedom of religion.  The freedom of conscience, the freedom of               
 religion and the exercise thereof can be found in most                        
 constitutions.  Even though Alaska is one of the newer states, the            
 element of the freedom of conscience was not included in the state            
 constitution.   Members of the Constitutional Convention in 1955-             
 1956 have said they just did not think of it because they thought             
 it was a basic right and thought freedom of religion was the                  
 priority.  He commented that Russia under Stalin, guaranteed                  
 freedom of conscience and freedom of religion, but people were not            
 free to exercise either one.                                                  
                                                                               
 REPRESENTATIVE MARTIN said it is important today because of a                 
 couple of things that have happened in Alaska.  About five years              
 ago, a bill was introduced which basically stated that freedom of             
 conscience would not be used as a way of not providing services to            
 people that want medical help in different aspects of life.  More             
 recently, there have been two judges who would not force a                    
 physician or a pharmacist to give drugs to individuals who wanted             
 to terminate their life.  The drugs had to be prescribed by a                 
 doctor or a hospital.  There were individuals who felt their                  
 conscience would not allow this, especially since an individual               
 could probably take their life any time they wished.  He noted that           
 for a long time in America we have allowed freedom of conscience as           
 a reason for not participating in wars, but an individual could do            
 something else to help their Nation such as public health service.            
 He noted there were a number of medics who were conscientious                 
 objectors in the Marine Corps that went to the front line and                 
 worked strictly in medical care.                                              
                                                                               
 REPRESENTATIVE MARTIN said he did not believe this was a light                
 matter; he felt it was superior to freedom of religion and a                  
 person's conscience allows them to choose a religion or no                    
 religion.  He noted there were a lot of people with no religious              
 affiliation but are very moral in their behavior and it is their              
 conscience that guides them.  He believes it is important to insert           
 this in the state constitution as an inalienable right.                       
                                                                               
 Number 1054                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG said he thought that medics in the Marine             
 Corps were Navy corpsmen.                                                     
                                                                               
 REPRESENTATIVE MARTIN said most of them were Navy/Marine Corps, but           
 there were also Marines that were medics.                                     
                                                                               
 REPRESENTATIVE ROKEBERG asked what the effect of this would be if             
 there was a reinstitution of the national draft?                              
                                                                               
 REPRESENTATIVE MARTIN said, "You can have your national draft, but            
 they honor the freedom of conscience of the individuals who then              
 had the choice.  A lot of people had the choice of the peace corps            
 rather than the VietNam War or the Korean War.  So, there are many            
 options in serving your country if society said that this was                 
 important that everyone serves their country some way, we're not              
 going to force you on the front lines where you kill someone as a             
 conscientious objector, but you can help your country in many other           
 ways."                                                                        
                                                                               
 REPRESENTATIVE ROKEBERG asked if the catalyst of this happened to             
 be a case that came out of the Palmer District Court regarding                
 physicians in the Matanuska Valley hospital?                                  
                                                                               
 REPRESENTATIVE MARTIN said that was something that has come up                
 twice and it is currently in the courts.  The judge ruled about a             
 year and a half ago that providers of medical services cannot use             
 conscientious objection as a reason for refusing abortion services.           
 He said there is an Alaskan law, but if a judge rules that the law            
 is unconstitutional, the next step is to make this an unalienable             
 right.  There are a lot of nurses in the Palmer hospital who do not           
 want to be forced into providing or participating in abortion                 
 services.                                                                     
                                                                               
 REPRESENTATIVE ROKEBERG asked if the decision was based on                    
 constitutional grounds?                                                       
                                                                               
 REPRESENTATIVE MARTIN said he didn't know for sure, but he knew the           
 attorneys were fighting it based on constitutional inalienable                
 rights.   He said they bring up the law, but laws can be made one             
 day and changed later by another legislature.  However, once an               
 inalienable right is put in the constitution it is a lot harder to            
 change.  He added it's a higher level that the courts will                    
 recognize rather than state statute.                                          
                                                                               
 CO-CHAIR BUNDE asked what other states have this in their state               
 constitution.                                                                 
                                                                               
 REPRESENTATIVE MARTIN said Massachusetts, Minnesota, plus others.             
                                                                               
 REPRESENTATIVE DAVIS noted the Alaska Constitution speaks to                  
 freedom of religion and many of the examples provided for the                 
 committee are under freedom of religion and explain in more detail            
 what that is; that's where their freedom of conscience comes in.              
 He said it would appear that if there was a dissertation on the               
 shaping of the Alaska Constitution, freedom of conscience could               
 very well possibly fit in under the freedom of religion section.              
                                                                               
 REPRESENTATIVE MARTIN said yes, and that's a long drawn out                   
 process.  He said that one of the first freedoms that individuals             
 were fighting for once they began thinking of democracy was the               
 freedom of conscience.  The Revolution writings in the age of                 
 enlightment mostly talk about freedom of conscience first.  He                
 noted that part of the reason England busted up was because they              
 had only one religion and there were segments of the population               
 that did not believe that way.  Consequently, they left and went to           
 Holland or other countries, and from Holland they came to America.            
                                                                               
 Number 1354                                                                   
                                                                               
 CO-CHAIR BUNDE asked if there was any other state that had freedom            
 of conscience as a separate item in their constitution.                       
                                                                               
 REPRESENTATIVE MARTIN said there were a number states.                        
                                                                               
 REPRESENTATIVE DAVIS asked if Representative Martin agreed that it            
 could already be a part of our constitution, but just not expressly           
 indicated.                                                                    
                                                                               
 REPRESENTATIVE MARTIN said it could be.  He said as it is now, it             
 is in law and it has been upheld at least three different times               
 that freedom on conscience in the law would be recognized.  Now we            
 see that being challenged by the courts and by the legislators,               
 themselves in the past.  Mostly, as Judge Fabe (indisc.) said that            
 because medical people (doctors and hospitals) accept federal and             
 state monies, they must provide services for the individuals.  He             
 said, "Palmer was the first one that everyone seemed to be picking            
 on, although the bigger hospitals don't provide it either; that's             
 where the challenge was and it was the nurses more than anything              
 else.  It's not that they cannot get nurses; they have been able to           
 get nurses from other areas when in this case, abortion services              
 were required.  Then the judge changed her opinion and said that we           
 did not mean the person directly responsible, but anyone who                  
 assists and it's the nurses who have to assist and they don't want            
 to.  They are fighting this on freedom of conscience."  He                    
 commented he had introduced this bill before that incident.                   
                                                                               
 REPRESENTATIVE VEZEY was curious as to why Representative Martin              
 thought the problem couldn't be addressed by statute rather than              
 constitutional amendment.                                                     
                                                                               
 REPRESENTATIVE MARTIN said because right now it is being challenged           
 by the judge, herself.                                                        
                                                                               
 Number 1522                                                                   
                                                                               
 CO-CHAIR TOOHEY said any hospital that accepts federal funds must             
 perform what is deemed legal.  Speaking as a nurse, she said there            
 has never been a time when a nurse has been asked to perform a                
 duty, such as an abortion or be part of an abortion clinic unless             
 the nurse wants to be.  That decision is respected by the                     
 hospitals, doctors and nurses.  The Palmer Hospital will respect              
 the nurses' wishes not to participate in abortions if that is their           
 choice.  The hospital will have to get other nurses, but there are            
 many nurses who believe it is a woman's right to have an abortion.            
                                                                               
 REPRESENTATIVE MARTIN said, "We did bring in the case that did go             
 (indisc.) the attorneys at law who are defending the nurse and                
 hospital on that abortion case by Judge Fabe, and they do talk                
 about that the law evidently used to be upheld and most judges in             
 the past did not go beyond that; that the law protected the nurses            
 rights of freedom of conscience.  Now, we see that because of                 
 federal and state monies as Judge Fabe says, they cannot use that             
 as a reason for refusing to provide service."   He commented the              
 latest development in the Lower 48 is that judges are refusing to             
 tell a doctor or a even pharmacist in a couple of cases that they             
 will provide the prescription to terminate someone's life.                    
                                                                               
 Number 1686                                                                   
                                                                               
 REPRESENTATIVE BRICE said, "Given that there's a high level of                
 sensitivity, I guess, towards the ideas that you're talking about             
 with a conscientious objection, and given that what we've seen in             
 Montana with the Freemen Movement and that type of stuff, where               
 people feel that their objections to rule under a sovereign state             
 is basically saying that they're not party to those laws, I would             
 see this as basically validating their actions and allowing them to           
 ...Well, let's put it in very basic terms, BP, Exxon and ARCO say,            
 you know, I conscientiously object to paying taxes any longer.                
 According to this, although you do say individual and they might be           
 considered something else, how is that going to work into this?               
 How do we deal with the idea of society, and being a member of that           
 society and being required to act within certain parameters, if               
 we're going to participate in that society versus, you know just              
 basically willy nilly going off spinning out into some type of void           
 claiming conscientious objection."                                            
                                                                               
 REPRESENTATIVE MARTIN said this is the thing that is always the               
 challenge through an open society like ours that you will                     
 constantly come into one person's feeling that his/her conscience             
 allows them to terminate the life of their child.  He said the next           
 step is when you come into conflict with another individual's                 
 rights.  He said, "Your right to freedom to swing your hands and              
 your arms ends at my nose."                                                   
                                                                               
 REPRESENTATIVE BRICE said that is not the issue he was raising.               
 The issue being raised is as a member of society, there are certain           
 rules that we all have to follow.  There are only two things                  
 guaranteed in this life:  Taxes and death.  He questioned as a                
 property taxpayer of a municipal ordinance, could he be granted               
 immunity from prosecution under the passage of this resolution if             
 he did not pay property taxes.  In other words, he conscientiously            
 objects to the concept of property taxes and refuses to pay them.             
 He noted that's what this legislation says.                                   
                                                                               
 REPRESENTATIVE MARTIN noted there have been many people throughout            
 the history of America that have refused to pay taxes or                      
 participate in government.  There are society limitations on what             
 one's individual conscience can be, especially in relation to                 
 depriving another individual of their rights and freedom to talk              
 and sing, among other things; also, of how an individual                      
 participates within society itself.  That is why we have courts.              
 The courts say it is evenly applied to all citizens to pay for                
 services that government offers.  You have a right to argue with              
 local government that the tax is too high or too low, etc.                    
                                                                               
 REPRESENTATIVE BRICE interjected that Section 25 of HJR 25                    
 specifically grants him the right not to pay those taxes.                     
                                                                               
 REPRESENTATIVE ROBINSON noted that much of the discussion had                 
 centered on medical procedures and she was curious about a                    
 situation where there could be one doctor and one nurse in a rural            
 area, and someone's life is dependent upon those two individuals,             
 yet one of those individuals does not believe in that procedure.              
 She asked if it was Representative Martin's belief that one of                
 those people could make the decision not to perform a lifesaving              
 procedure because they don't agree with the procedure?                        
                                                                               
 REPRESENTATIVE MARTIN said this is what every doctor and nurse goes           
 through all the time.  He noted that as time goes on more and more            
 hospitals will choose to specialize in certain areas such as death            
 with dignity and there will be doctors, nurses and other providers            
 who will be allowed to give those prescriptions.   That is a                  
 conscience decision.  Most individuals in Juneau go to Tacoma for             
 abortion services.  He didn't know if it was the choice of the                
 hospital or the doctors in Juneau not to perform that procedure.              
 He didn't know how it was worked out with the individuals in the              
 smaller communities.                                                          
                                                                               
 TAPE 96-42, SIDE A                                                            
 Number 001                                                                    
                                                                               
 CO-CHAIR BUNDE said he was not anxious to address constitutional              
 amendments without a lot of study and discussion, but noted there             
 were a number of committee referrals.                                         
                                                                               
 REPRESENTATIVE DAVIS believed the comments about the Freemen were             
 good as they relate to this issue and he personally felt this could           
 open up pandora's box.  In his opinion, the founders of the state             
 Constitution were right in phrasing it like they did.                         
                                                                               
 REPRESENTATIVE MARTIN thanked the committee for hearing this bill.            
 He commented this was the first time in six or eight years that a             
 committee even had courage enough to bring it up for discussion.              
                                                                               
 Number 119                                                                    
                                                                               
 CO-CHAIR BUNDE closed public testimony.  He asked for the wish of             
 the committee.                                                                
                                                                               
 Number 127                                                                    
                                                                               
 REPRESENTATIVE VEZEY made a motion to move HJR 50 from committee              
 with individual recommendations.  Co-Chair Toohey objected.                   
                                                                               
 REPRESENTATIVE DAVIS noted that he would vote to move HJR 50 out of           
 committee only because it generates a lot of interesting and                  
 important discussion.                                                         
                                                                               
 CO-CHAIR BUNDE asked for a roll call vote.  Voting in favor of the            
 motion were Representatives Davis, Vezey and Bunde.  Voting against           
 the motion were Representatives Brice, Robinson and Toohey.                   
                                                                               
 REPRESENTATIVE MARTIN asked if the committee would reconsider the             
 motion when Representative Rokeberg returned.                                 
                                                                               
 CO-CHAIR BUNDE said Representative Martin could discuss it with               
 Representative Rokeberg and if he cared to bring it up for                    
 reconsideration, Co-chair Bunde would entertain the motion.