Legislature(1997 - 1998)
03/31/1998 02:25 PM 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 JOINT RESOLUTION NO. 5
Proposing an amendment to the Constitution of the State
of Alaska relating to freedom of conscience.
DR. ARTHUR E. HIPPLER, (TESTIFIED VIA TELECONFERENCE),
EXECUTIVE DIRECTOR, ALASKA RIGHT TO LIFE, MAT-SU, spoke in
support to HJR 5. He noted that the concern of his
organization was direct, in that any person should not be
forced to perform or assist at abortions if they have a
moral objection to it. He advised that this is not an
unrealistic fear and stressed that there appears to be an
assurance by the Court by implication in the Valley Hospital
case, that the court could impose judicial tyranny over
people.
Mr. Hippler continued, at the core of civil liberties is the
respect for conscience. If conscience can be compelled,
then any other assumed liberty would be a joke and
meaningless. If one can only act on other's beliefs, one
would be continually compelled to act against their
conscience; then we would no longer live in a society with a
pretense of freedom. He claimed that the current judicial
system, as it is now implemented would impose it's own
liberal, anti-religious and pro-death ideas regardless of
what elected State officials do, unless, there exists a
patent constitutional provision limiting this arbitrary
power.
Mr. Hippler ascertained that constitutional "chains" not
infringe upon the conscience of the citizens as mandated by
the Courts. He strongly urged passage of HJR 5.
SARAH FELIX, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,
advised that both the Civil and Criminal Division of the
Department of Law continue to have significant concerns with
HJR 5. She noted that the Department has had the
opportunity to review materials from HJR 5, specifically,
the article Protecting the Rights of Conscience of Health
Care Providers published in 1993.
Ms. Felix advised that a Westlaw search revealed that the
article had not been cited in any legal cases. The article
did list numerous cases which resulted from litigation over
"rights of conscience" laws. Examples of those include
lawsuits challenging state laws mandating autopsies, blood
transfusions, lawsuits claimed by hospital staff claiming
wrongful termination of conscientious objection to abortion,
patient lawsuits against hospitals for failure to advise
regarding the availability of "morning after" pills and
multiple other lawsuits between patients and hospitals.
Ms. Felix pointed out that the Department had reviewed other
state's charters which have "freedom of conscience"
provisions. It appears that the only state in which
"freedom of conscience" is a stand-alone provision is in New
Hampshire (NH). The New Hampshire Bill of Rights, Article
their very nature unalienable, because no equivalent can be
given or received from them. Of this kind are the Rights of
Conscience". She continued, however, the NH constitution
also contains a provision which limits the freedom of
conscience. The Bill or Rights, Article #3 states that
"When men enter into a state of society, they surrender up
some of their natural rights to that society, in order to
ensure the protection of others; and without such an
equivalent, the surrender is void".
Ms. Felix stated that caselaw in the NH interpretation, the
freedom of conscience provision has limited the exercise of
the right by reference to Article #3. At this time, there
is no provision in the Alaska Constitution to limit the
exercise of freedom of conscience. She suggested that
anarchy would result with the insertion of that language
into the Constitution.
Ms. Felix spoke to Amendment #2. [Copy on File]. The
Department maintains the concern of limiting an existing
constitutional right. Limiting the right to privacy could
have unintended consequences. Under the proposed amendment,
a business owner could not exercise the right of privacy so
as to prohibit a disgruntled employee from disclosing
business records. The proposed amendment has no limitations
on actions and reliance on a person's freedom of conscience.
Ms. Felix emphasized that the Department has no idea what
"freedom of conscience" would cover. She asked if it would
cover any individual opinion or belief. The proposed
language is very broad and vague and it is unknown how it
could limit the other's persons' right to privacy.
Representative Kelly understood that the right to privacy
would not cover "personal business records". He understood
that concern had been covered in the U.S. Constitution under
the 1st Amendment. Ms. Felix replied that this was covered
by both, although, the Alaska Constitution gives broader
rights to protection. Representative Kelly observed that
the right to privacy has been taken out of bounds.
Representative Martin noted that the right of democracy
should be the right of freedom of conscience. He took
offense that the Department of Law would indicate that the
proposed legislation could create anarchy. He pointed out
that the courts ruled against the freedom of conscience in
the Valley Hospital case. They stated that the freedom of
conscience was only a statutory right, not a constitutional
right. Ms. Felix cited the NH case, which stated that if
there were not a check on the freedom of conscience, such as
the check contained in the NH Constitution, Article #3,
there would result anarchy. She advised that the NH case
must be referenced because it is the only state which has
the freedom of conscience in the Bill of Rights. All other
states have it tied to the freedom of religion.
Representative Martin stated that Amendment #1 would provide
language, which Justice Sandra Day O'Connor suggests would
curtail the "freedom of conscience". He wanted to see the
freedom of conscience and the freedom of religion in the
same constitutional amendment. Representative Martin
stressed that the freedom of conscience is the most
important right that a person could have and that freedom of
religion is dependent on freedom of conscience.
Representative Grussendorf indicated that the proposed
language is complicated. The right to privacy is implied in
the first amendment by the "search and seizure" aspects of
what a government can do to a person under their
jurisdiction. He pointed out that the proposed amendment
only addresses one aspect of privacy, the reproductive
right. Privacy goes beyond that issue. Representative
Grussendorf stressed that the right to privacy can only go
as far and as long as it can without interfering with the
rights of others. The right of privacy is a very broad
situation. He pointed out that the right to conscience
provision in the New Hampshire charter resulted during the
times of witch-hunts, and then establishing the right of
religious freedom.
(Tape Change HFC 98- 83, Side 2).
Co-Chair Therriault advised that the issue at hand is
broader than the issue addressed by the Valley Hospital
court case. Representative Grussendorf pointed out that
language contained in Amendment #2 was basically the same
language ruled by the court. That decision was made from
statute and other provisions of the constitution without
attaching it to privacy.
Co-Chair Therriault asked if the Department thought that the
language of Amendment #1 was covered in the wording of
Amendment #2. Ms. Felix stated that the amendments were
similar. Co-Chair Therriault believed that Amendment #2 was
language which tempered an individual's right to freedom of
conscience with their right to privacy. He commented that
he tried to create language in which the right to privacy
would check the freedom of conscience. Ms. Felix replied
that Amendment #1 was narrowly focused and was a "stand
alone" freedom of conscience amendment which focused on
health care facilities. She agreed that the language of
Amendment #2 was broader and could cover most things in
regard to the right to privacy.
Representative J. Davies understood that a "right" created a
situation which prevents a person from doing wrongful things
to other people. He recommended that the way to balance
would be in providing two affirmative "rights"; then the
Courts would determine the decision. He believed that the
right to privacy should protect a person.
Representative Martin commented that the right of conscience
at this time is so narrow that it only pertains to
abortions. He stressed that the freedom of conscience is
the most important aspect to the freedom of liberty. The
Courts have indicated that only the direct participants
(i.e. doctors) could make the choice not to be present at a
hospital procedure. Consequently, the subordinate positions
at the hospital would be required to be present at any
procedure as long as the doctor authorized it.
Representative Martin felt that the Court's have forced a
division between people with relationship to their freedom
of conscience.
Representative Kelly remarked that the right to privacy was
not language used in the original constitution and that it
has since become problematic when used to confer benefits.
Representative Kelly referenced various case laws.
Representative Grussendorf pointed out that such cases
resulted because there had been "no compelling" evidences or
interests to differ. Representative Kelly argued that the
right to privacy was taking the State in very broad "leaps"
across the legal "landscape". He suggested that currently,
the Courts are using the right to privacy in an
inappropriate manner and that it should be more narrowly
focused.
Representative Foster questioned how the legislation might
affect "conscientious objectors" during a national
emergency. Ms. Felix replied that currently, there exists a
body of law addressing conscientious objection to the draft.
In the event of a national crisis, it would be addressed in
conjunction with that law. Representative Foster referenced
Amendment #1, Section (a)2. He asked if that language would
allow for a person or facility, if they conscientiously
objected, from participating in a national disaster. Ms.
Felix stated that would be wide open. Representative
Foster voiced concern where the line of an objection would
"end". He acknowledged the complicated subject of the
legislation.
Co-Chair Therriault asked if under the language of Amendment
job linked to the privilege of another person's right to
privacy, would they be exempt from performing their job
under the right of conscience. Ms. Felix acknowledged that
was correct, which created a huge concern for the Department
of Law. Co-Chair Therriault questioned if that could be
linked to another individual's right to privacy. He
understood that if a person were employed to do a job, they
would have to do carry out that job or leave the employment.
Ms. Felix emphasized that could continue to occur when the
freedom of conscience laws exists. Co-Chair Therriault
believed that would be true if the language for freedom of
conscience were wide open, although, he believed that
Amendment #2 was not that broad. Discussion followed
regarding the difference between the right to privacy and
the responsibilities within an employment contract.
Representative Grussendorf agreed that Amendment #2 was
dangerously broad. Representative Martin noted that
Amendment #1 had been offered in consideration of member's
concerns expressed during a previous meeting.
Representative J. Davies spoke to the right to privacy. He
pointed out that a right protects individuals. The
motivation for the right to privacy began with a concern of
"big brother" in the development of telecommunications. The
concern resulted from the fear of abuse of computer data
base information and/or unreasonable search and seizure.
Representative J. Davies cautioned that it is important to
be careful when adjusting language which could affect those
types of situations. He advised that the right to privacy
predominately protects an individual whose right to be free
in their own pursuit of happiness and undisturbed by the
government. Representative J. Davies noted that the Courts
continue to provide a balancing act between the individual's
rights and the State's interest in regulating those rights.
(Tape Change HFC 98- 84, Side 1).
Representative Martin MOVED to adopt Amendment #1 for the
purpose of discussion. He reiterated that Amendment #1 was
being offered, although, he preferred for the Committee to
pass the bill as it moved from the House Judiciary Committee
(JUD). He stressed that he wanted to place the freedom of
conscience above or equal to the right to privacy.
Representative Foster applauded the work of Representative
Martin, although, questioned who would protect the right of
the minority group. Co-Chair Therriault pointed out that
the individual would be protected in Section (a)1 of the
amendment and an institution would be protected under
Section (a)2.
Representative J. Davies OBJECTED to adoption of Amendment
provide limitations to employment contracts. Representative
Martin replied that there exist many cases in which the
employee has been forced to do something against their
conscious. Representative J. Davies ascertained that the
discussion is not debating the "doing" of something
unlawful, but rather something against a person's
conscience. He asked how this legislation would apply to
that circumstance.
Representative J. Davies WITHDREW his OBJECTION to adopting
Amendment #1. He commented that the amendment as well as
the entire bill was misdirected. Amendment #1 was adopted.
Co-Chair Therriault WITHDREW Amendment #2. There being NO
OBJECTION, it was withdrawn.
Representative Mulder MOVED to report CS HJR 5 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal note. Representative J. Davies
OBJECTED. He stated that he understood that since
Amendment #1 had just been offered, the Committee would be
given time to consider the impact of it. He requested that
an opportunity to amend the legislation be provided.
Representative Mulder WITHDREW the MOTION to move the bill
from Committee.
Representative J. Davies MOVED to AMEND Amendment #1 by
deleting "a public or" to Section #a(2). Representative
Martin OBJECTED. Representative J. Davies advised that if
"public" was not deleted, restriction of a lawful service
would create an unconstitutional situation. Representative
Martin emphasized that language was the heart of the entire
act and had been added as a protection for public
hospitals.
A roll call vote was taken on the motion.
IN FAVOR: J. Davies, Grussendorf, Foster
OPPOSED: Kohring, Martin, Mulder, G. Davis,
Therriault
Representatives Kelly, Moses, and Hanley were not present
for the vote.
The MOTION FAILED (3-5).
Representative Mulder MOVED to report CS HJR 5 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS HJR 5 (FIN) was reported out of Committee with a "do
pass" recommendation and with a fiscal note by the Office
of the Governor dated 1/30/98.
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