Legislature(1997 - 1998)
04/28/1998 08:25 AM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
APRIL 28, 1998
8:25 A.M.
TAPE HFC 98 - 129, Side 1
TAPE HFC 98 - 129, Side 2
TAPE HFC 98 - 130, Side 1
TAPE HFC 98 - 130, Side 2
TAPE HFC 98 - 131, Side 1
CALL TO ORDER
Co-Chair Gene Therriault called the House Finance Committee
meeting to order at 8:25 a.m.
PRESENT
Co-Chair Therriault Representative Kohring
Representative Davies Representative Martin
Representative Davis Representative Moses
Representative Foster Representative Mulder
Representative Grussendorf
Representative Kelly
Co-Chair Hanley was absent from the meeting.
ALSO PRESENT
Representative Mark Hodgins; Senator Mike Miller; Sandy
Perry-Provost, Special Assistant, Department of Public
Safety; Pete Nakamura, Director, Division of Public Health,
Department of Health and Social Services; Amy Skilbred,
Juneau; Lisa Blacker, Juneau Coalition for Pro-Choice,
Juneau; Caren Robinson, Alaska Women's Lobby, Juneau; Janet
Oates, Providence Hospital, Anchorage; Laraine Derr, Alaska
State Hospital and Nursing Home Association, Juneau; Kirsten
Bomengen, Assistant Attorney General, Department of Law;
Beth Kerttula, Juneau.
The following testified via the teleconference network: Sue
Mason, Attorney Representing Hospitals, Anchorage; Cathy
Girard, Anchorage; Steve Williams, Attorney for the
Plaintiffs, Anchorage; Robin Smith, League of Women Voters,
Anchorage; Pauline Utter, Anchorage; Beth Carlson, Eagle
River; Richard Kenmitz, Unitarian University, Fairbanks;
James White, Battalion Chief, Anchorage Fire Department,
Anchorage; Craig Goodrich, Director, Fire Prevention,
Department of Public Safety; Michael McGowan, President
Alaska Fire Chiefs, Anchorage; John Shover, Chief, Steese
Volunteer Fire Department Fairbanks; John Williams, Former
Mayor, City of Kenai; Len Malmquist, Fire Chief, Central
Emergency Service, Kenai; Jason Elson, Fire Chief, City of
Kenai; Dave Burnnet, Kenai; Kevin Koechlin, Director, Public
Safety, Mat-Su Borough; David Tyler, Alaska Fire Chief
Association; Dave Baumgartner, North Slope Borough Fire
Department, Barrow; Cliff Orme, Executive Director, Valley
Hospital Association, Mat-Su.
SUMMARY
HB 473 "An Act relating to training and certification of
fire fighters, fire instructors, and certain
emergency responders; and providing for an
effective date."
CSHB 473 (FIN) was REPORTED out of Committee with
"no recommendation" and with a fiscal impact note
for the Department of Public Safety.
SJR 35 Proposing an amendment to the Constitution of the
State of Alaska relating to participation in an
abortion.
SJR 35 was HELD in Committee for further
consideration.
SENATE JOINT RESOLUTION NO. 35
Proposing an amendment to the Constitution of the State
of Alaska relating to participation in an abortion.
SUE MASON, ATTORNEY REPRESENTING HOSPITALS, ANCHORAGE
explained that she filed a brief on behalf of the Alaska
State Hospital and Nursing Home Association to support the
position of Valley Hospital. She expressed concern for the
legal rights of hospital clients, which are both religious
and nonreligious hospitals. She maintained that under the
Valley Hospital case every hospital in Alaska would be
considered a quasi-public hospital regardless of whether or
not the hospital is a religious facility or owned by a
private organization. She expressed concern that the Court
does not recognize exceptions for religious hospitals. She
read from the Valley Hospital decision regarding monopoly
privileges. The Court concluded that monopoly privileges
cannot be used by the Valley Hospital Association to limit
access to lawful medical procedures for moral or religious
reasons. She noted that the Court concluded that the right
to abortion is a fundamental right under the Alaska
Constitution. The Court noted that since the right is
fundamental it cannot be interfered with unless the
interference is justified by a compelling state interest. A
footnote indicates that religious views can never be found
to be a compelling state interest. The Court states in its
footnote: "Nothing said in this opinion should be taken to
suggest that a quasi-public hospital could have a policy
based on the religious tenets of its sponsors which could be
a compelling state interest." She stressed that the Courts
decisions raises serious concerns on the part of religious
hospitals. She maintained that the constitutional amendment
was necessary to extend protections to religious
organizations and others that object to abortion on ethical
or moral grounds, to clarify the law, and to grant a right
of choice to those opposed to abortion. She maintained that
the legislation would restore the law to the status quo
established in 1970 with the Conscience Clause.
CATHY GIRARD, ANCHORAGE spoke against SJR 35. She
maintained that women should not be limited by the moral
values of others.
STEVE WILLIAMS, ATTORNEY FOR THE PLAINTIFFS, ANCHORAGE
stressed that the question is whether those with views
against abortion can be allowed to impose their views on
women. He maintained that the Valley Hospital ruling
protects individual conscience in respect to abortion. No
one would be required to participate in an abortion.
Individual rights of conscience would be respected. All
that is required of those at the hospital is to respect each
woman's constitutional right to make her own decision. He
asserted that the ruling would not require Providence
Hospital to participate in abortions.
Mr. Williams suggested that the legislation should be
narrowed to apply to hospitals owned by religious
organizations that have a religious belief that opposes
abortion. He expressed concern that the legislation would
turn assembly and hospital board elections into political
debates concerning abortion. He maintained that the
legislation would require Alaskan women to go out of the
State to obtain legal medical care.
ROBIN SMITH, LEAGUE OF WOMEN VOTERS, ANCHORAGE spoke in
opposition of the legislation. She stressed that the Alaska
Constitution is considered a model constitution. She
maintained that the legislation would effectively eliminate
second trimester abortions in Alaska. She emphasized that
rape victims may have trouble coming forth in the first
trimester of a pregnancy. She maintained that the
legislation would prevent women from obtaining needed
medical care. She questioned if women should be forced to
bear children with major birth defects. She estimated that
the legislation would result in litigation.
PAULINE UTTER, ANCHORAGE spoke in opposition to the
legislation. She related a telephone conversation with a
woman who was pregnant with a fetus that had no limbs or
stomach lining. The woman did not have any money and
already had three children. She also received a phone call
for assistance from a woman that had three children and
stated that she could not afford another child. She
emphasized that it is a legal medical procedure.
BETH CARLSON, EAGLE RIVER spoke in opposition of SJR 35.
She maintained that the legislation is an inappropriate
response to a Court case. She maintained that the Court
decision does not require that an individual opposed to
abortion participate in an abortion. The Court ruled that a
publicly funded hospital cannot as a policy matter, restrict
acceptable and appropriate medical care. No hospitals would
be required to hire additional staff. She emphasized that
the decision is the right of the parents.
RICHARD KENMITZ, UNITARIAN UNIVERSITY, FAIRBANKS spoke in
opposition to SJR 35. He noted that the Unitarian General
Assembly believes that abortion is a private and religious
choice. The Unitarian General Assembly supports the right
to abortion and birth control. He emphasized that the
debate on abortion should not be held in hospital
boardrooms.
Representative Grussendorf observed that a person cannot be
forced to participate in an abortion.
Representative Grussendorf questioned if the Court indicated
that a hospital board could hire based on an individual's
willingness to perform an abortion.
Mr. Williams stated that the issue was not raised in the
case. He observed that it would discriminatory to hire
based on an individual's stance on abortion.
SJR 35 was HELD in Committee for further consideration.
HOUSE BILL NO. 473
"An Act relating to training and certification of fire
fighters, fire instructors, and certain emergency
responders; and providing for an effective date."
REPRESENTATIVE MARC HODGINS, SPONSOR spoke in support of the
legislation. He noted that the legislation creates the
Alaska Fire Standards Council in the Department of Public
Safety. It provides for the selection of officers, meeting
schedules, compensation and expenses of the Council and
provides that the Council adopt minimum standards for
employment and curriculum requirements for fire fighters and
fire instructors and their certification. The Council would
establish and maintain fire fighter and fire instructor-
training programs. He emphasized that certification is
optional. The legislation would set goals for fire service
areas and fire fighting personnel. The legislation would
take affect in the year 2000. The legislation was
introduced at the request of the Fire Chiefs Association.
He noted that the legislation is tailored after the Police
Standard Councils.
Representative Grussendorf observed that the Fire Fighter's
Association has concerns regarding the legislation. He
questioned the impact on volunteer fire fighters.
Representative Hodgins stressed that concerns by volunteer
fire fighters were addressed in CSHB 473 (JUD). He
reiterated that certification would be optional.
JAMES WHITE, BATALION CHIEF, ANCHORAGE FIRE DEPARTMENT,
ANCHORAGE noted that he is in charge of fire training. He
spoke in support of the legislation. He emphasized that the
legislation would provide consistent training standards for
volunteer and nonvolunteer departments.
CRAIG GOODRICH, DIRECTOR, FIRE PREVENTION, DEPARTMENT OF
PUBLIC SAFETY spoke in support of the legislation. He
expressed concern with the fiscal impact to the Department,
but noted that the Department is working with the sponsor to
transfer the general fund obligation to designated program
receipts.
Co-Chair Therriault stated that the program would not fit
under the definition of statutory designated program
receipt.
MICHEAL MCGOWAN, PRESIDENT ALASKA FIRE CHIEFS, ANCHORAGE
spoke in support of the legislation. He pointed out that
the state of Alaska has a daily fire loss of $85 thousand
dollars and a fire fatality about every other week. He
emphasized that the legislation would help reduce this
record. The legislation would establish a Council that
would adopt standards. National standards exist. Local
departments need to be in compliance with state and federal
Occupational Safety and Health Administration (OSHA) laws.
He observed that the Department of Public Safety is
concerned that the legislation would put a burden on their
general fund dollars. He stressed that the Fire Chiefs
Association is not advocating that troopers be reduced to
fund the Council. He pointed out that the state of Alaska
collects $3 million dollars a year in fire insurance premium
packages. Fire prevention and training is funded at
approximately $1.8 million dollars. He acknowledged that
there is opposition among volunteer fire fighters, but
maintained that it is a vocal minority. He stated that the
President and the Second Vice President of the Fire Fighters
Association have indicated that they support the
legislation.
Co-Chair Therriault asked if there were discussions
regarding a private association to oversee the training. He
asked if the Council has to be in state law. He observed
that there are differences between the Police Standards
Council and the proposed Council.
Mr. McGowan stated that there is a national organization
that oversees fire-training standards. He pointed out that
approximately 225 rural fire departments in Alaska would not
be able to meet some of the standards that the National Fire
Protection Association would adopt.
Representative Grussendorf reiterated that there are
concerns by other volunteer departments. He noted that
Anchorage and Fairbanks are the only communities where all
fire fighters are paid.
(Tape Change, HFC 98 - 129, Side 2)
Co-Chair Therriault noted that the majority of fire fighters
outside of Fairbanks are volunteers. Mr. McGowan stated
that he was not aware of any opposition to the current
version from volunteer departments near Fairbanks.
JOHN SHOVER, CHIEF, STEESE VOLUNTEER FIRE DEPARTMENT
FAIRBANKS spoke in support of HB 473. He stated that state
standards are long overdue. He stressed that unified
standards would met the needs of small rural and large urban
fire departments. Training would provide the flexibility
for fire fighters to move from one department to another.
In response to a question by Co-Chair Therriault, Mr. Shover
explained that new persons are provided with Fire Fighting I
training. Further advance training is subsequently offered.
He stressed that OSHA standards must be met.
Representative Davies questioned the difference between
standards that would be proposed through the legislation and
current standards. Mr. Shover noted that not all
departments could certify to the Fire Fighter I and II
level. Rural fire departments are not in a position to meet
Fire Fighter I and II standards. New standards would
accommodate rural departments.
JOHN WILLIAMS, FORMER MAYOR, CITY OF KENAI spoke in support
of HB 473. He referred to page 3, line 15 and 27. He
stressed that these sections alleviate concerns that
training would be mandatory.
Representative Grussendorf expressed concern that small fire
departments would have to travel for training.
Mayor Williams observed that the city of Kenai obtained
federal, state and private funds for a fire training
academy. He noted that scholarships would be available.
Educational materials can be sent to rural areas
electronically. By the year 2000, every village in the
state of Alaska should be able to receive information
electronically.
LEN MALMQUIST, FIRE CHIEF, CENTRAL EMERGENCY SERVICE, KENAI
spoke in support of HB 473. He maintained that the new
standards would help volunteer departments to comply with
OSHA and national standards. He maintained that the
legislation would save lives and reduce property loss.
Liability would be reduced.
Co-Chair Therriault observed that many departments would not
meet national standards. He asked if the legislation would
require that all departments be brought up to national
standards. Mr. Malmquist emphasized that lacking a state
standard that the court would use national standards. He
stressed that state standards can take into account Alaskan
needs.
Co-Chair Therriault referred to page 2, lines 20 - 22. He
observed that Council meetings could be held telephonically.
JASON ELSON, FIRE CHIEF, CITY OF KENAI spoke in support of
the legislation. He observed that Alaska is a large state
with different conditions. He observed that fire fighters
are one of the last professional entities not required,
through certification, to comply with standards.
Hairdressers must comply with standards.
DAVE BURNNET, KENAI spoke in support of the legislation. He
observed that he represents the fire fighters training
academy that is being built in Kenai. He maintained that
training for fire fighters was better in 1971 then it is
today, in Alaska. He stressed that the Council would
provide organization.
Representative Grussendorf expressed concern that the Fire
Fighter's Association has not voiced support for the
legislation.
Co-Chair Therriault referred to page 2, lines 6 - 8.
Representative Hodgins noted that the language was added in
the House Judiciary Committee. This provision would provide
that two representatives of fire fighters, including at
least one fire fighter administrative officer from the
Alaska State Fire Fighters Association be included on the
Council.
KEVIN KOECHLIN, DIRECTOR, PUBLIC SAFETY, MAT-SU BOROUGH
spoke in support of the legislation, but noted concerns with
the cost of implementation. He observed that recent changes
in emergency medical service (EMS) regulations resulted in a
50 percent rise in the cost of EMS classes. No additional
money was provided for the additional cost. He stated that
once standards are adopted, whether or not they are
voluntary, that courts will go to the state adopted
standard. Those that do not comply with state standards
would have the burden of proving their standard. He
emphasized the need to utilize the tax on fire insurance to
improve the delivery of fire fighting training in the state
of Alaska.
DAVID TYLER, FIRE ASSISTANT CHIEF, HOMER VOLUNTEER FIRE
DEPARTMENT, ALASKA FIRE CHIEF ASSOCIATION spoke in support
of the legislation. He referred to page 2, lines 29 - 31,
"establishing minimum training and performance standards for
certification of fire services personnel that are consistent
with the standards of the National Fire Protection
Association or other applicable standards." He emphasized
that the purpose of this language is to allow rural
departments to be flexible. He observed that it does not
make sense to train fire fighters for tall multi-floor
buildings if there are no tall multi-floor buildings in the
vicinity. He maintained that insurance ratings would not be
adversely affected. The intent is to get the Council in
place. Standards would not be put in place immediately. He
stressed that the President of the Fire Fighter's
Association testified in favor of the legislation in the
House Judiciary Committee.
Representative Davies noted concerns that optional
requirements for certification would become de facto
requirements.
Mr. Tyler stressed that federal requirements exist. Federal
standards are not being met. He envisioned the Council as
the compliance arm of OSHA. The Council would help
departments meet national standards.
DAVE BAUMGARTNER, NORTH SLOPE BOROUGH FIRE DEPARTMENT,
BARROW spoke in support of the legislation, but expressed
concern with the lack of volunteer representation on the
Council. He stressed that fire departments vary greatly in
their ability to implement standards. He suggested that a
significant number of the Council's members should be
volunteers or from volunteer fire departments. He also
suggested that the State Fire Marshal replace the
commissioner of the Department of Public Safety as a member
of the Council. Most municipal fire departments are not
under police departments. He recounted bitter experiences
with the EMS regulations that were passed in recent years.
He suggested that 3 or 4 members be volunteers or
representatives of volunteer fire departments.
Representative Foster noted that all of his 30 villages have
volunteer fire departments. He observed that many of his
villages lack the means to penetrate ice in order to obtain
water for fire fighting.
Mayor Willams expressed support of the addition of two
volunteer fire fighters on the Council. He suggested that
two of the at-large members could be replaced with
volunteers.
Mr. Malmquist clarified that the Council would develop
training packages that would be delivered to local
communities for training in the community. There persons
would not have to be sent to the academy.
Co-Chair Therriault pointed out that the fiscal note is
self-funding. No general fund monies would be used.
(Tape Change, HFC 98 - 130, Side 1)
Members were provided with Amendments 1 - 5 (copies on
file). Representative Hodgins spoke in support of
Amendments 1, 3, 4 and 5. He expressed concern with
Amendment 2. Amendment 2 would replace the commissioner of
the Department of Public Safety with the state fire marshal.
He stressed that as long as the Council is in the Department
of Public Safety and there is a possibility of funding from
the department that the commissioner should be on the
Council.
Representative Davies and Co-Chair Therriault stated that
they would offer additional amendments when the Committee
reconvened. Representative Davies expressed support for two
of the public members to be volunteer fire fighters; one
from a small community and one from a large community. Co-
Chair Therriault stated that he would suggest the addition
of language encouraging the Council to meet telephonically
to reduce costs.
RECESSED/RECONVENED
The House Finance Committee recessed at 10:00 a.m. and
reconvened at 2:05 p.m.
The Committee continued work on HB 473.
Representative Grussendorf MOVED to ADOPT Amendment 1 for HB
473. Amendment 1 would amend section 1 on page 2, line 3
and page 2, lines 6 - 9:
(1) two [four] chief administrative officers or
fire chiefs of local government;
(3) four [two] representatives of fire fighters,
including at least one fire fighter administrative
officer from the Alaska State Fire Fighters
Association; a person appointed under this paragraph
may not, while serving on
the council, be a fire chief; and
There being NO OBJECTION, it was so ordered.
Representative Grussendorf MOVED to ADOPT Amendment 2 (copy
on file). Amendment 2 would replace "commissioner of public
safety" with "state fire marshal." He spoke in support of
the amendment. He emphasized that all the fire departments
are registered with the fire marshal's office. He
emphasized that the state fire marshal understands fire
fighting programs and training.
Representative Hodgins spoke against the amendment. He
observed that the commissioner of the Department of Public
Safety could appoint the state fire marshal as his designee.
He reiterated that possible funding would come through the
Department of Public Safety.
Representative Martin spoke in support of the amendment. He
noted that the state fire marshal has more to do with the
handling of emergency services.
A roll call vote was taken on the motion.
IN FAVOR: Martin, Moses, Davies, Grussendorf, Foster
OPPOSED: Kohring, Kelly, and Therriault
Co-Chair Hanley and Representative Mulder were absent from
the vote.
The MOTION PASSED (5-3).
Representative Grussendorf MOVED to ADOPT Amendment 3 (copy
on file). The amendment would provide that only one person
could be appointed from a department that consists entirely
of paid employees. Representative Hodgins noted that the
amendment would only apply to Kenai and Fairbanks. There
being NO OBJECTION, it was so ordered.
Amendment 4 was WITHDRAWN.
Representative Grussendorf MOVED to ADOPT Amendment 5 (copy
on file). Amendment 5 would delete on page 3, lines 20 -
25: "investigate when there is reason to believe that a
person or fire services training program that is certified
or claiming to be certified under this section does not meet
the minimum training or performance standards adopted by the
council; in connection with an investigation under this
paragraph, the council may subpoena persons, books, records,
or documents related to the investigation and require
answers in writing under oath to questions asked by the
council or the administrator."
Representative Grussendorf noted that fire chiefs feel that
this is their purview. Representative Hodgins stated that
if there is a need for investigation powers that the
statutes could be amended at a later date. Co-Chair
Therriault anticipated that additional statutory authority
would be needed in the future. Representative Grussendorf
pointed out that the amendment would alleviate concerns by
volunteer organizations. There being NO OBJECTION,
Amendment 5 was adopted.
Representative Davies amended Amendment 6 to amend:
Page 2, line 3:
(1) three [FOUR] representatives of fire
fighters;
Page 2, following line 5, insert and renumber sections
accordingly:
(3) the commissioner of the Department of Public
Safety or his designee;
(4) two volunteer fire fighters, one from a
community with a population of 2,500 or less and
one from a community which a population greater
than 2,500;
Page 2, line 10 is amended to read as follows:
(6) [(4)] two [FOUR] members of the public at
large with at least one
[TWO] member from a community [COMMUNITY] with a
population of 2,500 or less.
Representative Davies explained that the amendment would
result in one additional volunteer then had been previously
adopted through amendments. In addition, the commissioner
of the Department of Public Safety would be added. The
state fire marshal was previously added by Amendment 2.
Representative Davies spoke in support of having both the
commissioner of Department of Public Safety and the state
fire marshal on the Council.
Co-Chair Therriault questioned if it is necessary to have
both the commissioners of the Department of Public Safety
and the state fire marshal on the Council.
Representative Davies MOVED to divide the question between
subsection (3) and subsection (4). There being NO
OBJECTION, it was so ordered.
Representative Davies MOVED to ADOPT Amendment 6A:
Page 2, line 3:
(1) three [FOUR] representatives of fire fighters;
Page 2, following line 5, insert and renumber sections
accordingly:
(3) the commissioner of the Department of Public
Safety or his designee;
A roll call vote was taken on the motion.
IN FAVOR: Moses, Davies, Grussendorf
OPPOSED: Martin, Mulder, Davis, Foster, Kelly, Kohring,
Therriault
Co-Chair Hanley was absent from the vote.
The MOTION FAILED (3-7).
Representative Davies MOVED to ADOPT Amendment 6B:
(4) two volunteer fire fighters, one from a community with a
population of 2,500 or less and one from a community which a
population greater than 2,500;
(6) [(4)] two [FOUR] members of the public at large with
at least one
[TWO] member from a community [COMMUNITY] with a population
of 2,500 or less.
There being NO OBJECTION, it was so ordered.
Co-Chair Therriault MOVED to ADOPT Amendment 7. The
amendment would add, "the Council is encouraged to meet
electronically." He explained that the amendment would
allow the use of whatever electronic media is available.
There being NO OBJECTION, it was so ordered.
Co-Chair Therriault observed that the fiscal note needs to
be amended to reflect that the program does not meet the
definition of statutory designated program receipts.
In response to a question by Representative Martin, Co-Chair
Therriault explained that the commission is able to charge a
fee for certification. Representative Hodgins stressed that
the intent is that there will be no fiscal impact until the
year 2001.
Representative Martin expressed concern that the Council
would interfere with operations of the training program in
Anchorage. Representative Hodgins assured him that training
would always be needed. Representative Davis added that
there would be an additional cost for training at any
facility due to the cost of certification. He spoke in
support of the statutory designated program receipt fund
source. He observed that the definition of statutory
designated program receipt is narrow and expressed a desire
to see it expanded. He pointed out that the Department of
Public Safety's budget would be impacted by the legislation.
Co-Chair Therriault summarized that the problem is that the
program does not fit under the current definition.
Co-Chair Therriault MOVED to ADOPT a House Finance Committee
fiscal noted with a fund source change to general fund
program receipts. There being NO OBJECTION, it was so
ordered.
Representative Mulder MOVED to report CSHB 473 (FIN) out of
Committee with the accompanying fiscal note.
Representative Davies questioned if the effective date
should be changed. Representative Hodgins stated that the
delayed effective date was included to allow time to
consider standards and notify departments.
Co-Chair Therriault observed that moving the effective date
up a year would change the fiscal note. He pointed out that
the program was not budgeted.
SANDY PERRY-PROVOST, SPECIAL ASSISTANT, DEPARTMENT OF PUBLIC
SAFETY stated that the fiscal note would be zero in the
years 1999 and 2000. She observed that an earlier effective
date would require funding for the year 2000. Further
discussion occurred regarding the effective date.
Representative Davies stressed that the majority of fire
fighters are not aware of the legislation. He spoke in
support of delayed implementation of the standards. He
suggested a staggered effective date. Co-Chair Therriault
pointed out that there is no mechanism to pay for the
Council at an earlier date. Representative Hodgins stated
that the intent is that the Council be set up by statute so
that they can begin working for the best solution.
Representative Mulder reiterated the motion to report CSHB
473 (FIN) out of Committee with the accompanying fiscal
note. There being NO OBJECTION, it was so ordered.
CSHB 473 (FIN) was REPORTED out of Committee with "no
recommendation" and with a House Finance Committee for the
Department of Public Safety.
SENATE JOINT RESOLUTION NO. 35
Proposing an amendment to the Constitution of the State
of Alaska relating to participation in an abortion.
SENATOR MIKE MILLER, SPONSOR spoke in support of SJR 35. He
reviewed AS 18.16.010(b): "Nothing in this section requires
a hospital or person to participate in an abortion, nor is a
hospital or person liable for refusing to participate in an
abortion under this section." He noted that this statute
was the "law of the land" for 27 years. He maintained that
the Alaska Supreme Court's Valley Hospital Association
decision essentially struck down that law. He noted that
the Court used a three-prong test in determining that Valley
Hospital is a quasi-public institution. All hospitals with
over $1 million dollars in expenditures must have a
certificate of need. Secondly, a hospital would be a quasi-
public institution if public funds or lands were used in its
construction. All hospitals in Alaska utilized some public
funding. The third test was that 25 percent of their
funding had to come from public dollars, Medicaid or
Medicare. All hospitals in Alaska meet the three
requirements and are therefore quasi-public institutions. A
quasi-public institution can only limit elective abortions
for a compelling state interest. He observed that the Court
stated in its footnote that a religious affiliation is not a
compelling state interest. He emphasized that the
legislation would return the status quo. He maintained that
the debate on abortion has occurred in hospital boardrooms
for the past 27 years. He observed that 97 percent of
abortions are performed in clinics. He noted that all
Alaskan hospitals offer abortions to save the life of the
mother and all but Providence Hospital offer abortions in
the case of rape and incest.
Representative Davies disagreed that the legislation would
only apply to elective abortions. Senator Miller
acknowledged that the constitutional amendment would not
distinguish between elective and other abortions. He
emphasized that the amendment does not prevent abortions.
(Tape Change, HFC 98 - 130, Side 2)
Senator Miller argued that the amendment would not change
current medical practices regarding abortions for the
welfare of the mother.
Representative Davies questioned why a facility that
receives public funds should be allowed to refuse a legal
medical practice. Senator Miller stressed that all Alaskan
hospitals would be quasi-public institutions. He countered
that the Congress of the United States prohibits the use of
public funds for abortions.
Representative Martin expressed support for the legislation.
Representative Davies maintained that the purpose of the
Court's footnote is to clarify that public institutions
cannot use a religious rationale for choosing to offer one
procedure or another.
CLIFF ORME, EXECUTIVE DIRECTOR, VALLEY HOSPITAL
ASSOCITATION, MAT-SU testified in support of the
legislation. He maintained that the Association's Board is
representative of the community's composition and belief.
PETE NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES testified in
opposition to SJR 35. He noted that most discussions
concerning abortion have been based on individual or
religious convictions. Most discussions have not centered
on the public health impact of proposed actions. He
observed that few abortions are performed in hospitals.
First trimester abortions performed in hospitals generally
occur to protect the health of the mother. There are few
second trimester abortions in Alaska. He observed that
second trimester abortions generally occur due to
significant genetic abnormalities. He was unaware of any
third trimester abortions. He noted that the outcome of SJR
35 could be that these abortions are not done in the state
of Alaska. He emphasized that many women do not have the
means to leave the state to obtain an abortion. Those that
are less able would be hurt the most. Access to abortion
services of all types could be significantly affected. He
noted that there could be one managed care organization in
the state of Alaska. He expressed concern that abortions
could be eliminated by the policy of a managed care
provider.
Representative Davies questioned if the legislation differs
between elective and non-elective abortions. Mr. Nakamura
acknowledged that the lack of a definition could lead to
problems. Theoretically, an individual could be denied
necessary medical care under the definition.
AMY SKILBRED, JUNEAU spoke in opposition to SJR 35. She
asserted that a constitutional amendment is not needed.
Under the Court's decision no one who opposes abortions is
forced to participate in an abortion. No hospital is forced
to hire additional staff or medical personnel to provide
abortions. No public hospital can enforce a policy of
prohibiting legal abortions if there are doctors, staff or
medical personnel willing to perform them. She emphasized
that the Constitution should not be amended without a
compelling state interest. She asserted that the proposed
amendment is a matter of conscience, belief and religion.
She stressed that it is not a matter of public policy,
medical expertise, safety, economic policy or public
welfare. She stressed that the focus should be on
preventing unwanted pregnancies.
LISA BLACKER, JUNEAU COALITION FOR PRO-CHOICE, JUNEAU spoke
in opposition to SJR 35. She observed that a woman's right
to make reproductive choices is protected under the Alaska
Constitution. A hospital board, charged with overseeing the
financial health of the hospital cannot restrict a woman's
constitutional right for reasons that have nothing to do
with medical practices. She maintained that a quasi-public
hospital belongs to the whole community. She agreed that
individual hospital staff should not be made to participate
in abortion procedures against their will. She asserted
that the sponsors of SJR 35 are attempting to get around a
Supreme Court decision that they do not like. She
emphasized that the Alaskan Constitution was carefully
crafted to protect the rights and freedoms of all Alaskans.
CAREN ROBINSON, ALASKA WOMEN'S LOBBY, JUNEAU spoke in
opposition to SJR 35. She stressed that medical decisions
between a woman and her physician are sacred and should not
be subject to a veto by the physician's employer. She
emphasized that hospital board appointments are already
difficult without bringing in the issue of abortion.
JANET OATES, DIRECTOR, GOVERNEMNT RELATIONS, PROVIDENCE
HOSPITAL, ANCHORAGE spoke in support of SJR 35. She
maintained that the legislation provides the right to choose
not to do elective abortions in their facility. She
observed that the legislation places the language and the
intent of the 1970 abortion statute into the Constitution.
She observed that the hospital is a quasi-public facility.
She expressed concern with the Court's footnote indicating
that religious tenets may not be accepted as a compelling
reason for choosing not to perform abortions. She
maintained that the legislation would not change the status
quo. Hospitals would be allowed not to do abortions due to
religious beliefs or reasons of conscience. Women would be
allowed to receive elective abortions in clinics. Medically
necessary and emergency abortions would continue when a
woman's life is at risk.
Representative Grussendorf noted that no hospital personnel
would be forced to participate in an abortion. He
questioned if personnel could be sanctioned for performing
an abortion.
Ms. Oates explained that, if personnel felt that an abortion
was necessary, the Ethics Committee, which is on 24-hour
call, would provide advise. Representative Grussendorf
questioned what would happen if an employee performed an
abortion prior to action by the Ethics Committee. Ms. Oates
stated that there would be a problem. She did not know of
anyone who had been terminated for performing an abortion.
In response to a question by Representative Davis, Ms. Oates
clarified that supporters of the amendment are talking about
elective abortions.
In response to a question by Representative Davies, Ms.
Oates noted that Providence Hospital does perform abortions
in life threatening situations. She stated that she would
not object to clarifying that the legislation pertains to
elective abortions.
Representative Grussendorf questioned if the Ethics
Committee would refer a patient who wished to obtain an
abortion to another physician or facility. Ms. Oates noted
that there are a number of health care services that are not
available in the state of Alaska. She clarified that the
Ethics Committee would also be concerned with the viability
of the fetus.
Representative Davies questioned if a receptionist could
refuse to check in a person that is obtaining a therapeutic
abortion. Ms. Oates interpreted "accommodating" to include
direct and indirect personnel. Representative Davies
questioned if the bookkeeper could refuse to participate.
Ms. Oates thought that it would stretch to include the
bookkeeper under indirect personnel, but acknowledged that
it was possible.
LARAINE DERR, ALASKA STATE HOSPITAL AND NURSING HOME
ASSOCIATION, JUNEAU spoke in support of SJR 35. The Board
voted to support the amendment by a majority of the members.
She stated that the Board primarily discussed direct
involvement of personnel. She did not recall discussion
regarding public versus private facilities. She observed
that all hospitals in the State are public with the
exception of Providence Hospital. She noted that the
Association favors limitations to abortion.
(Tape Change, HFC 98 -131, Side 1)
Representative Davies observed that the Fairbanks Memorial
Hospital's Executive Committee unanimously opposes the
legislation. He emphasized that there is a lack of
unanimity on the issue. Ms. Oates noted that the vote to
support the legislation was not close.
KIRSTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF
LAW discussed legal issues relating to the legislation. She
observed that the legislation could eliminate the
possibility for women to have safe abortions in the state of
Alaska. She noted that it would be difficult to narrow the
constitutional language without the addition of limiting
language. She stressed that it would not be possible to add
an outright ban on abortions in the Constitution. She
stressed that if the amendment results in a virtual ban on
abortions in portions of the State, it could be found to
violate the right to privacy, because of its application and
effect. Under the Planned Parenthood versus Casey decision,
a substantial obstacle cannot be placed in the way of a
woman who seeks abortion. She noted that her comments refer
only to public facilities. There is no principle in law
that would require a private facility to offer abortion
services. The Emergency Medical Treatment and Labor Act
requires that when an individual seeks treatment in an
emergency room a hospital must provide appropriate medical
screening and stabilize the patient. A patient cannot be
transferred until their medical condition is stabilized.
There are civil penalties for physicians and hospitals that
fail to meet emergency requirements. She observed that the
amendment could cause a dilemma with the need for emergency
care. She pointed out that a liability could occur in
hospitals if staff walks off the job or a patient is turned
away. She expressed concern with the use of
"accommodation". She noted that the amendment includes
indirect medical care. She referred to testimony by Ms.
Mason and questioned if the intent of the legislation is to
allow a religious facility to limit access to procedures for
moral or religious reasons. She emphasized that such intent
would run afoul of constitutional clauses. She stated that
government entities are not allowed to premise their
delivery of services on religious reasons. She asserted
that the amendment would thrust hospital boards into the
arena of deciding by a simple majority whether individuals
will be able to receive lawful medical services and allow
decisions to be made for non-medical reasons. She observed
that proponents have claimed that the amendment would
restore the status quo established by the 1970 statute. She
pointed out that the 1970 statute predated Roe vs. Wade,
which was established in 1973 and elaborated on in 1992. A
1978 Attorney General's opinion established that the law
could apply to public institutions. Facilities were advised
not to rely on the statute to refuse to perform abortions.
She maintained that the amendment would create an elevated
constitutional right as opposed to the statutory right. She
stressed that the amendment could be improved by removing
the reference to public facility and accommodation, and by
adding language to allow a response to an emergency to be
based on medical premises. She noted that the question is
how far the legislation will reach. She questioned if
someone admitting a patient would sufficiently involved to
be "making that kind of decision." She observed that there
would be legal arguments regarding the interpretation of
accommodation. She clarified that the legislation would
fall beneath federally guaranteed constitutional rights.
Representative Grussendorf observed that the hospital board
would make the choice. Ms. Bomengen agreed that the
decisions would be made on a non-medical basis.
Representative Kelly pointed out that the Undue Burden test
applies if there is not a specific right to privacy. Ms.
Bomengen noted that there is recognition of a privacy right.
The federal test is applied under the Planned Parenthood
versus Casey test. The state of Alaska has an exclusive
privacy clause in its constitution.
In response to a question by Representative Martin, Ms.
Bomengen reiterated that there was an attorney general's
opinion in the early 1970's that stated that the 1970
statute could not be constitutional as applied to public
institutions. Public institutions did not "push" on the
statute and were therefore not challenged. She stated that
the fact that the statute has been on the books has been
misleading. There has never been an opinion as applied to
individuals. The Valley Hospital decision stated that it
did not in anyway mean that individuals would be forced to
participate in abortion procedures. Representative Martin
noted that the key word is "directly".
Ms. Bomengen stressed that there are enough issues that are
subject to interpretation to anticipate that there would be
legal challenges.
Representative Grussendorf questioned what would happen if a
person was in an emergency situation due to a botched
abortion attempt. Mr. Bomengen stated that there could be
some confusion, but that the federal law clearly requires
that a patient be stabilized. If a person is in labor the
hospital must care for both the mother and child. Any
discussion of transfer must make sure that any emergency
situation has been resolved. She stressed that the response
of a facility under the amendment would be uncertain without
additional clarifying language. Representative Grussendorf
observed that federal funds would be jeopardized if a person
were not cared for in an emergency situation.
Representative Kelly expressed his desire to clarify that
the legislation addresses "elective" abortion.
Representative Davies questioned if clarifying language
would reduce litigation. Ms. Bomengen noted that further
language clarifying that the amendment does not apply to the
broad spectrum of medically indicated abortions would reduce
litigation.
BETH KERTTULA, JUNEAU spoke in opposition to SJR 35. She
stated that it is hard to understand why a publicly funded
institution would not be required to meet constitutional
requirements, especially when no individual would be
required to perform abortions. She maintained that the
amendment is broad. She noted that it covers private and
public facilities. She supported additional language to
limit the legislation to elective abortions. She stressed
that the legislation would require women to talk about
painful situations, such as rape. She requested that the
issue not be "driven down to local boards."
SJR 35 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting adjourned at 4:10 p.m.
House Finance Committee 19 4/28/98
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