Legislature(1997 - 1998)
03/26/1998 01:45 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JOINT RESOLUTION NO. 5
Proposing an amendment to the Constitution of the
State of Alaska relating to freedom of conscience.
JOHN MANLEY, STAFF, REPRESENTATIVE TERRY MARTIN, opened by
asking, "What is meant when we say 'Freedom of
conscience'?" The United States is a nation founded on the
freedom of religion; it is fundamental to the many
institutions we have grown up with and take for granted.
Mr. Manley pointed out that freedom of religion is not for
any specific sect, but for all religions, and recognizes
those basic tenets of many religions as a foundation to our
society.
He continued, what is it to claim freedom of religion if
one is not able to act upon their conscience when religious
beliefs collide with the secular world? He suggested that
the freedom to act in accordance with one's religious and
moral beliefs is a fundamental precept of freedom of
religion.
(Tape Change HFC 98- 78, Side 2).
Mr. Manley continued, in Alaska, we have been careful to
articulate the rights of the individual, through both the
Alaska and the US Constitutions. In 1972, we added to the
State Constitution, the right to privacy. Perhaps the
right to freedom of conscience has simply been taken for
granted, as implied by the protection of the freedom of
religion, or as codified in Alaska Statutes.
Mr. Manley noted that having the freedom of conscience in
statute has not been sufficient and court challenges have
sought to compromise individual Alaskans to perform actions
which they personally object to as a matter of conscience.
Specifically, providers of medical services, such as
doctors and nurses, have been forced to perform or
participate in certain medical procedures such as
abortions, even though they are morally opposed. Mr.
Manley feared that today's new emphasis on assisted suicide
could well become public policy, mandated by the courts or
the legislature.
He added that any convoluted rationalization of a social
policy which forces a person to participate in what he or
she considers to be murder puts Alaska at the doorstep of
Nazi Germany of the 1930's or of the several despotism's
from the 1930's through the 1990's.
Mr. Manley summarized that by adding the protection
proposed in HJR 5 to the Alaska Constitution, would make it
clear that Alaskans enjoy complete freedom of conscience as
well as freedom of religion. He urged the Committee
support of the resolution.
Representative Kelly inquired if the freedom of conscience
clause in other state constitutions had caused any
significant challenges.
TED DEATS, STAFF, REPRESENTATIVE TERRY MARTIN, replied that
those situations appear to have been stopped at the lower
court level. There are seventeen other states which have
the freedom of conscience option. Courts and lawmakers are
competent to separate actions protected by freedom of
conscience.
Mr. Deats stated that the legislation had resulted from a
situation that occurred at Valley Hospital in Matsu last
year. Resulting from a court decision, that hospital was
forced to perform medical practices which were against its
policy. Nurses and other health care professionals are
particularly vulnerable because they hold subordinate
positions.
Representative Kelly agreed that freedom of conscience
could be included in freedom of religion. Representative
Grussendorf pointed out that the constitution is required
to protect the public from acts of government or their
agents.
DR. GERALD PHILLIPS, (TESTIFIED VIA TELECONFERENCE),
RADIOLOGIST, VALLEY HOSPITAL, MATSU, testified in support
of the proposed legislation. He provided graphic examples
which hospital staff had found themselves involved and in
which they had no recourse to exercise freedom of
conscience. Dr. Phillips noted that the hospital had lost
technical staff because of involvement in abortive
situations.
Co-Chair Therriault asked how the hospital staff would
exercise the rights as proposed in HJR 5. Dr. Phillips
suggested that the pre-abortion patient could be sent to
another clinic that supports abortions for ultra sound.
Dr. Phillips noted that the hospital should rely on the
referring physician to indicate if the work to be performed
would be for a pre-abortive circumstance.
Representative Martin advised that most often it is known
who the abortionists are. He asserted that a doctor's
license should not be threatened when that doctor is not
willing to participate in abortion preparation.
Representative J. Davies asked Dr. Phillips if he knew any
doctor who the State had threatened to revoke their license
for unwillingness to participate in this practice. Dr.
Phillips acknowledged that he was not aware of any threats
to any doctors as a result of this.
Representative Grussendorf commented that it should not be
assumed that physicians, who do perform abortion services,
perform only that service and that all their patients be
"blanketed" for any hospital service they may need. Dr.
Phillips indicated that to his knowledge, there had only
been three situations at Valley Hospital in which the staff
considered opting for the right to exercise the freedom of
conscience.
DR. WILLIAM RESINGER, (TESTIFIED VIA TELECONFERENCE),
RADIOLOGIST, VALLEY HOSPITAL, MATSU, spoke in support of
the proposed resolution. He noted that he had taken the
Hypnocratic Oath in 1969, which forbids abortions and
euthanasia. He added, that he strongly supports a
constitutional amendment because of his fear that an
activist judge could eventually mandate doctors and staff
to perform actions against their conscience.
JANET OATES, (TESTIFIED VIA TELECONFERENCE), DIRECTOR,
MARKETING AND GOVERNMENT RELATIONS, PROVIDENCE HOSPITAL,
ANCHORAGE, stated that Providence Hospital supports HJR 5.
She believed that it should be an issue of choice to
perform procedures which do not conform to one's ethical
values.
JENNIFER RUDINGER, (TESTIFIED VIA TELECONFERENCE),
EXECUTIVE DIRECTOR, ALASKA CIVIL LIBERITIES UNION (ACLU),
ANCHORAGE, spoke in opposition to HJR 5. She pointed out
that HJR 5 is very vague and voiced concern on how it could
be construed by a judge or court. She stated that it was
an "anarchy" amendment, which could cover any assumption
made by anyone, which they claimed would be against their
conscience.
Ms. Rudinger exposed some of the myths which have
surrounded the Valley Hospital case. She denied that any
of the hospital staff had been requested to participate in
an abortion procedure. She quoted a specific judgement
handed down by the courts expressing that any person at
that hospital would not be required to participate in such
activity.
The Supreme Court decision stated that hospital could not
have a policy banning abortions if there was a doctor on
staff willing to perform them. The court based it decision
on the fact that a woman's right to make that choice is a
fundamental right.
She added that Valley Hospital was a non-sectarian hospital
built with State funds. The hospital does not have the
right to assert a religious base for enforcing the abortion
policy, whereas, privately funded hospitals are not covered
by that provision.
Ms. Rudinger recommended that the Legislature should
instead pass a safe Religious Freedom Restoration Act
(RIFRA) exemption to State law so as to protect the
religious right. She noted that the ACLU had supported the
federal RIFRA, although, it was struck down in the Supreme
Court. Ms. Rudinger reiterated that the proposed amendment
was too broad to be presented to the Alaskan voters.
Representative Martin recommended that Ms. Rudinger read
Justice Sandra Day O'Connor's writing on the freedom of
conscience. He asked why should religious institution have
a higher voice of freedom than a public institution. He
disagreed to the fact that if a person was not attached to
a religious group, in current law, they can not exercise
freedom of conscience. Ms. Rudinger reiterated that the
proposal is very vague. She urged that a more narrow
definition be drafted.
(Tape Change HFC 98- 79, Side 1).
Representative Kelly asked if a RIFRA would be able to
address the concern proposed by Representative Martin. Ms.
Rudinger replied that the only reason that the RIFRA had
been struck down in Court was because it exceeded its
enforcement power.
She noted that the ACLU supports religious freedom as long
as it is specifically defined. Representative Kelly asked
if there was proposed language submitted by the ACLU, which
could narrow the legislation. Ms. Rudinger replied not at
this time. Representative J. Davies commented that the
difference between proposed HJR 5 and the various RIFRA, is
that within the RIFRA, there exists an explicate direction
as to how the individual, the state and the government
would be balanced.
SIDNEY HEIDERSDORF, PRESIDENT, ALASKANS FOR LIFE, INC.,
JUNEAU, noted that his organization supports HJR 5 which he
felt was of fundamental importance to the protection of
Alaskan's rights.
He stated that the legislation would not open the gates to
unlawful acts based on conscience because:
1. A freedom of conscience amendment to the
constitution does not break new ground or unknown
territory. It is too late to claim that a
freedom of conscience clause in our constitution
will cause chaos.
2. The proposed amendment does not give license for
just any kind of behavior. The purpose of the
freedom of conscience clause is to protect
individuals from the tyranny of government
requiring them to act in a manner they consider
to be in violation of their conscience.
Mr. Heidersdorf stated that his immediate concern was in
regard to abortion and physician assisted
suicide/euthanasia. The amendment would pre-empt such
events from occurring. He stated that Alaskans should be
given the opportunity to decide this issue as submitted in
the proposed resolution.
Mr. Heidersdorf noted that there is concern for future
situations in which court pressure could build to provide
more access to abortion. Representative J. Davies
countered that the intent of the law is that the State not
place barriers on a person exercising a legal right. The
State is attempting to protect the existing rights of the
individual. He emphasized that there is nothing in the law
requiring the individual to participate against their
conscience. Representative J. Davies reiterated that there
is no trend occurring contrary at this time.
Co-Chair Therriault questioned if there was a problem in
tempering the right to privacy. He noted that some concern
has been expressed preventing any further expansion of the
right to privacy.
Representative Kelly remarked that there exists problems in
the Alaska State Courts regarding the right to privacy and
delineating between actions in law which are prohibitive,
and actions in law that are preferred. He stated that with
this legislation, "tolerated" would be removed and the
right to privacy would be preferred. He feared that the
courts are vastly expanding the right to privacy.
Representative J. Davies disagreed with Representative
Kelly in respect to abortion funding as the establishment
of preference. He suggested that it is the other way
around and that if medical services are being provided to
pregnant women, those services can not be discriminated
against based on religion. It will be protected, as it is
a service provided by the State. He emphasized that
everyone must be treated equally.
E. BETTY HALL, BLACK AMERICANS FOR LIFE, JUNEAU, testified
in support of the legislation. She stated that she is not
a Christian and is not affiliated to any organized
religion, but that she opposes abortion for moral reasons.
LORAINE DERR, ALASKA STATE HOSPITAL AND NURSING HOME
ASSOCIATION (ASHNHA), JUNEAU, spoke in opposition to the
proposed legislation. She pointed out that her membership
was directly involved in the Valley Hospital situation and
that the whole abortion issue is extremely pertinent to
ASHNHA. ASHNHA members believe that the freedom of
conscience issue is too broad, therefore, members oppose
the proposed language of the legislation. She noted that
opposing the language does not suggest that ASHNHA is
against any new language regarding a constitutional
amendment and that the Association would like to see
language more narrowly defined regarding the right to
privacy.
Discussion followed between Ms. Derr and Representative
Martin regarding the possible wording of the amendment.
SARAH FELIX, ASSISTANT ATTORNEY GENERAL, GOVERNMENTAL
AFFAIRS DIVISION, DEPARTMENT OF LAW, spoke to the
Department's concern with the proposed legislation. She
stated that the legislation would allow a person to act
according to his or her own conscience without regard to
the collective will of the people as expressed in the law.
Ms. Felix added that the Department is concerned that HJR 5
would open up a "Pandora's Box" in epic portion which could
lead to anarchy. Civil and criminal laws could be violated
and the person breaking the law could claim justification
based upon the individual's conscience belief that they had
the right to break the law.
The freedom of conscience in the context of religion,
already established in the federal constitution, has been
recognized that the State may impose limits on a person's
action resulting from a person's religious belief while the
protection of a person's right to believe is absolute.
However, HJR 5 specifically protects a person's actions
which could impact the State's ability to enforce important
laws. The Department is concerned that HJR 5 is wide and
over-broad and could be construed as granting broader
rights than currently are recognized under the 1st
amendment to the US Constitution, Freedom of Religion.
Neither the terms nor the legislative record have been
significantly developed to allow for enforcement or
interpretation of what this provision means. She
summarized that the Department foresees a flood of
litigation resulting from enacting HJR 5.
Representative Martin asked if the Courts could narrow the
people's choice only to freedom of religion. Ms. Felix
replied that the reference to religion was made only to set
the proposal in context. She stated that freedom of
religion generally does include freedom of conscience.
Without that context, there is no indication how a court
would interpret it.
Representative Kelly pointed out that there are other
states which do have a freedom of conscience provision. He
asked how they had addressed the circumstance. Ms. Felix
responded that in the U.S. Digest, which she used for
reference, places freedom of religion and freedom of
conscience together. Most of the other states, which have
a freedom of conscience provision, have it under the
freedom of religion clause in their constitution. Ms.
Felix advised that HJR 5 appears to go beyond that,
offering a broader protection.
Representative Martin spoke to the need to broaden the
terms of constitutional freedom in State legislation and
the constitution. Ms. Felix advised that legislation
addressing this matter would be preferable and more
workable than a constitutional amendment.
HJR 5 was HELD in Committee for further consideration.
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