Legislature(1997 - 1998)
04/29/1998 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 348 - RIGHTS OF CONSCIENCE PROTECTION
CHAIRMAN TAYLOR announced the next item on the calendar was SB 348,
"An Act relating to rights of conscience protection for persons who
directly or indirectly provide or perform health care services."
He asked Senator Ward to come forward to present SB 348.
Number 0343
SENATOR JERRY WARD, Alaska State Legislature, sponsor of SB 348,
directed the committee's attention to the proposed committee
substitute, Version H, Cook, dated 4/28/98.
SENATOR MILLER made a motion to adopt proposed committee
substitute, Version H, Cook, dated 4/28/98. There being no
objection, that version was before the committee.
CHAIRMAN TAYLOR asked Senator Ward to explain the difference
between the versions.
SENATOR WARD responded the proposed committee substitute "further
clarifies the rights of citizens not to have to do anything that
would be against their conscience." He said when Roe v. Wade was
enacted in 1970 giving women the right to have an abortion in the
state of Alaska, a clause was inserted that no individual would be
forced to perform these procedures. However, the "privacy law"
introduced by Senator Terry Miller in 1972, has been interpreted by
some misguided appointed people who believe that right no longer
exists. He reiterated that it clearly was never the intent of the
legislature or the citizens of the state of Alaska to cause an
individual to perform an act that is against their conscience -
their moral conscience, not their religious conscience. He noted
there was a proposed amendment for consideration by the committee.
CHAIRMAN TAYLOR verified the difference between the original
version and the proposed committee substitute is the insertion of
the word "elective".
Number 0363
SENATOR MILLER pointed out this legislation actually tracks Senate
Joint Resolution 35, which is currently in the House Rules
Committee. He noted an amendment had been made the prior evening
in the House Finance Committee which basically inserted the word
"elective". Essentially, this legislation helps define "elective"
abortion. He further stated if SJR 35 passes, goes before the
voters and becomes part of the constitution, there needs to be an
enabling statute that defines terms such as "elective."
CHAIRMAN TAYLOR inquired about the proposed amendment.
SENATOR WARD said the amendment would delete "a reported act of
forcible rape" and insert "an act of sexual assault that has been
reported to a peace officer" on page 5, line 15.
Number 0380
SENATOR MILLER made a motion to adopt Amendment 1. There being no
objection, Amendment 1 was adopted.
SENATOR ELLIS asked if that means with nonelective abortions, a
person's right to conscience will be over-ridden for performance of
that procedure in medical facilities? In other words, the House is
proposing a distinction in this resolution between elective and
nonelective abortions.
SENATOR WARD explained that currently every hospital in the state
performs abortions when the life of the mother is in jeopardy and
every hospital, except Providence Hospital, performs abortions for
rape and incest. This bill clarifies that a hospital not wishing
to perform elective abortions is not required to perform elective
abortions, which has been the law for the part 27 years. It is his
belief that even if "elective abortions" was not added into the
constitutional amendment, every hospital would continue their
current practice; however, he wants to make sure that every
hospital provides the current practice of abortions for life of
mother, rape and incest.
SENATOR ELLIS inquired if nonelective abortions are performed at
Providence Hospital.
SENATOR WARD said that was correct, when the life of the mother is
in jeopardy and every other hospital for rape and incest, also.
SENATOR ELLIS asked Senator Ward to address the issue of immunity
from liability on page 2, line 17.
SENATOR WARD said it states that "an individual is not civilly,
criminally, or administratively liable to a person for refusing
...."
Number 0425
SENATOR ELLIS said his intent is to bring this up so the committee
could give serious consideration to the ramifications of granting
immunity.
CHAIRMAN TAYLOR agreed it is an important issue and said he is
somewhat surprised at some of the issues the committee has granted
immunity for recently. This bill seems to fit with the pattern.
He stated this legislation certainly provides for an elective
process and not to provide for an immunity would not leave the
process elective. He added, "If you could elect to refuse -- you
can't have that election without some level of coercion if in fact
there's a litigation that may be pending or threatened should you
fail to participate, so I don't think you could have a piece of
legislation like this without some sort of immunity for the
decision that is made."
RENEE HOWELL, Legislative Administrative Assistant to Senator Lydia
Green, Alaska State Legislature, stated the legislation does grant
immunity, but it is subject to the provisions of the Emergency
Medical Treatment and Active Labor Act (EMTALA). For example, if
a person has been admitted to a hospital and a hospital has a
policy against the process, the hospital is then required to
transfer the person to another hospital. Similarly, if a patient
is under the care of a particular physician at the hospital and
that physician decides not to do an elective abortion, that
physician is required to find another physician.
SENATOR ELLIS asked if the hospital refusing to perform the service
is financially obligated to transport the patient to another
hospital?
MS. HOWELL responded only if the patient has been admitted to the
hospital for another reason.
SENATOR ELLIS said the federal government has laws relating to
"anti-dumping" whereby doctors, hospitals and various health
facilities are not able to refuse service to people. He inquired
if any of the rights being granted in this legislation are in
opposition to the federal "anti-dumping" law.
MS. HOWELL said this legislation has been carefully drafted to
include all the EMTALA regulations. She directed the committee's
attention to the section "Federal requirements not affected" on
page 4 which specifically lists those related to EMTALA as well as
the Medicare and Medicaid requirements. Those requirements are
that a patient is to be given advance directive information, living
will information and other information up front when being admitted
to the hospital. The hospital is not required to participate, but
the patient must be given all the information up front.
SENATOR ELLIS reiterated that nothing in SB 348 is intended to
violate federal law.
MS. HOWELL confirmed that.
CHAIRMAN TAYLOR thanked Ms. Howell for her comments and requested
Dr. Nakamura to come before the committee at this time.
PETER NAKAMURA, MD, MPH, Director, Division of Public Health,
Department of Health and Social Services, said his testimony on
these issues is based on the medical and health impacts of some of
the proposed actions. Because facilities are very much a part of
this legislation, he had looked into the reason for abortions being
done in a hospital. Very often second trimester abortions are
performed for a genetic reason and while it may not be a life-
threatening issue, but it is a significant issue to the patient.
He said those types of issues don't seem to be addressed in SB 348.
DR. NAKAMURA further stated he had a problem with some of the
wording in this legislation; specifically as it relates to health
services. He referred to the language on page 5, line 8, "if done
with the intent to deliver the unborn child prematurely to preserve
the health of both the pregnant woman and the woman's child." He
said there are times when perhaps the child or the mother might be
involved, but not both. Dr. Nakamura next directed the committee's
attention to the language on line 6, "if done with the intent to
save the life of a pregnant woman whose life is endangered by a
physical disorder, illness or injury when no other medical
procedure would save the life of the mother." He pointed out there
are not only physical disorders, but mental disorders which
significantly pose a threat to the life of the mother, but those
issues would not be covered. With respect to the language "no
other medical procedure would save the life of the woman", he said
very often there are medical procedures available which are not
familiar to all physicians.
Number 0515
DR. NAKAMURA said another issue relates to the health care
institution which he had commented on when testifying on SJR 35
which was proposed because of a requirement that a public hospital,
a hospital that is built with public funds or a hospital supported
by public funds must make a service available. He said in this
case, it would exclude again all health care institutions.
Inasmuch as that is a legal issue, he deferred that issue to the
representative from the Department of Law.
DR. NAKAMURA expressed concern with the definition provided of
"health care institution" in which "entity" includes a hospital,
clinic, physician's office, medical school, nursing school, other
health care training institution, insurance organization, or
financing organization. He said this could potentially eliminate
access to abortions totally in the state. As he mentioned when he
testified in SJR 35, as health care systems are changing and
managed care organizations are assuming the responsibility of
health care, there is a potential that not only all hospitals, but
other health facilities such as clinics, physician's offices, or
other institutions would come under the umbrella of one health care
organization. He said he does have great respect for many of the
sectarian hospitals, especially Providence Hospital, but if all
these institutions happen to come under the purview of one health
delivery system and held accountable to their policies, it's very
likely that access to abortion services will no longer be available
in this state. The individuals harmed would be those who are the
most vulnerable and those are individuals who cannot afford to find
an option.
DR. NAKAMURA referred to line 24 which states, "'service' includes
testing, diagnosis, prognosis, research, counseling, therapy,
treatment, family planning, referral, prescription, medication,
surgery, ...." and said often a testing process is necessary before
the type of service is determined. It may be a chemical test, a
blood test or an x-ray test. A diagnosis has to take place -
prognosis has to be determined before the type of service is
decided - before it is concluded that an abortion is the required
intervention. He expressed concern with the inclusion of all these
services.
DR. NAKAMURA concluded, "Ultimately, the end result of an unwanted
pregnancy is an unwanted birth and unwanted birth results in a lot
of the health and social problems we're dealing with, whether they
be the issues of child abuse, whether they be the issues of
domestic violence, or the issues of children who grow up with an
inability to deal with society stresses. So somewhere along the
way, I guess from a health professional and someone responsible for
public health, my concern is that we're in danger of losing access
to these services."
SENATOR MILLER commented that Dr. Nakamura had brought up a lot of
interesting points. He asked Dr. Nakamura to clarify the concern
expressed with the language on page 5, line 8; specifically "if
done with the intent to deliver the unborn child prematurely to
preserve the health of both the pregnant woman and the woman's
child."
DR. NAKAMURA responded that the health of the child may be in
danger, but perhaps not the mother or visa versa. The mother may
have a condition, such as a bleeding disorder, and her life may be
significantly threatened, but the child could very well survive.
So by requiring both the pregnant mother and the child to be
affected before interceding with a procedure, could put one or the
other at risk.
SENATOR MILLER reminded Dr. Nakamura this wasn't new language; it's
current law.
Number 0571
CHAIRMAN TAYLOR asked Dr. Nakamura how he would characterize the
medical obligation or medical ethic differentiating between
prenatal care and abortion; in other words, could he explain how he
equated abortion as medical care.
DR. NAKAMURA replied as an individual in public health, he views
health care and the outcomes of health care as a significant issue
separate from medical care. For example, the adverse outcomes of
an abused child or mother is public health. It may not be medical
care, but it's definitely public health.
CHAIRMAN TAYLOR thanked Dr. Nakamura for his comments and asked
Kristen Bomengen to present her testimony at this time.
KRISTEN BOMENGEN, Assistant Attorney General, Human Services
Section, Department of Law, stated she hadn't had sufficient time
to review the draft being discussed by the committee, but
TAPE 98-44, SIDE B
Number 0001
MS. BOMENGEN continued she would direct her comments as much as
possible to the current draft. She said basically, this bill does
still pose many legal problems and may present some legal
challenges, only some of which would have to be defended by the
state in due course; many would fall upon private or other
facilities and individuals to pursue legal remedies under these
provisions. She said that "health care institution" is defined to
include a public institution. As most everyone is aware, the
current state of the law is articulated in Valley Hospital which
specifically stated that a statutory right for an institution to
refuse to participate in an abortion can't outweigh the
constitutional right to choose whether to bear a child. There is
no change in that status, so this would be unconstitutional in that
regard. She further stated public entities are not allowed, under
constitutional principles, to limit access to their services based
on religious criteria in such a way as to frustrate the exercise of
a constitutionally-protected right.
MS. BOMENGEN said the liability provisions that appear both in the
individual rights and in the institutional rights of conscience
appear to provide a certain liability, but are misleading as
worded. She had discussed some of the problems that arise with
other federal laws at a previous hearing, and it doesn't appear the
revisions in the current draft sufficiently address those problems.
The wording implies the liability exists to a greater extent than
actually exists. She said Sec. 18.17.030(b) states that a person
is not liable if they properly object to being required to perform
a service; 18.17.040(b) states the institution is shielded from
liability for the injuries that may occur because of the policies;
and 18.17.060 provides remedies for those who are injured by a
violation of the act - which means if required to perform that
service or discriminated against in employment perhaps by being
asked to - but provides no remedy for individuals injured by the
operation of the act if they fall into injury because of refusal to
provide health care. She added the federal law provides for civil
fines that can be imposed on physicians and on facilities, and tort
claims can be made against facilities under the Emergency Medical
Treatment Act. She recommended the language in SB 348 be cross-
referenced with the federal statutes.
CHAIRMAN TAYLOR interjected the state has no authority to immunize
from the remedies provided for in federal law.
MS. BOMENGEN pointed out the federal Medicare law in the Emergency
Medical Treatment Act intends to pre-empt the state law to some
extent.
SENATOR MILLER expressed amazement that no other Administration had
found a problem with a law that's been in effect for the past
several years. He agreed that under the decision of the Alaska
Supreme Court, this particular statute probably would be found
unconstitutional, which is the reason for its conjunction with
SJR 35. He asked if Ms. Bomengen agreed that if SJR 35 went on the
ballot and was passed, this would be constitutional?
MS. BOMENGEN replied she wasn't certain of the answer, but
understands that it is intended to be, as indicated by testimony
presented. For clarification, she pointed out that problems with
that law had been identified 20 years ago when the Attorney General
issued an opinion which stated that a law exempting public
institutions probably would not withstand a constitutional
challenge and public institutions were advised not to rely upon
that law in determining what services to offer.
SENATOR MILLER commented the broadness of the Supreme Court
decision picks up every facility in the state, public or not. He
asked if Ms. Bomengen had any comments on at what point does one
person's constitutional right supersede another person's?
MS. BOMENGEN responded she believes there are mechanisms for
balancing religious interests or morally asserted objections. The
statute as it current stands, still allows individuals to make
objections and there is nothing about the Valley Hospital case or
any other case that would lead anyone to believe that that would be
overturned. There would be a far more detailed constitutional
discussion about how religious objections and moral objections are
analyzed. That option is still available; however, to assert
religious objections to carrying out a practice as it relates to
the area of public institutions and public facilities is somewhat
tricky. The Pioneers' Homes run by the state are public
institutions and with this legislation directly affecting end-of-
life care, it would be improper for the state to adopt a policy
that might object to complying with some end-of-life directives.
Number 0502
CHAIRMAN TAYLOR asked Ms. Bomengen to point out the provisions in
the bill that provide for end-of-life care.
MS. BOMENGEN replied the two areas of procedures that are of
concern are those that are intended to end the life of an
individual or that involve an elective abortion. At a previous
hearing, she had raised the issue of federal requirements regarding
dvanced directives imposed on all Medicare certified facilities and
Medicaid participating facilities relating to living wills, among
other things, at the time of admission. She noted that Sec.
18.17.070 would address that issue, but as mentioned previously,
she encouraged this be cross-referenced more so the obligations are
very clear.
CHAIRMAN TAYLOR inquired if that wasn't already covered by existing
law.
MS. BOMENGEN said one change was reflected in Sec. 18.17.050 which
is the requirement that a patient be transferred; however, she was
of the opinion there were other places where the entire chapter
should be referenced so the layperson would know there is an
applicable federal law to help in decision making as well as
potential liabilities.
Number 0465
MS. BOMENGEN reiterated the state will be confronting this with
respect to the Pioneers' Homes. In addition, because this
prohibits discrimination in employment, there are employer/employee
issues that need to be addressed. She noted there is some language
that provides exceptions when a specific type of care is being
provided, but she questioned the adequacy of the language. The
exception to the prohibition against employment discrimination is
in terms that aren't the usual legal terms applied to religious
objections or disability related discrimination cases. She
suggested the language should be changed. Also, the issue of
employment also creates problems in relation to the current
parameters in interviewing new employees. Generally, it would not
be a practice to inquire into religious beliefs and moral
objections, but when a health care facility provides specific
services, such as a Pioneer Home, it might be necessary to
incorporate that into the interview process which could become
tricky.
CHAIRMAN TAYLOR illustrated the following scenario for
clarification as it relates to end of life procedures or directives
under a living will: A resident at one of the state's Pioneer
Homes fills out an advance directive instructing that at a certain
point the application of various extraordinary techniques is no
longer desired; i.e., no life support systems, and personnel at the
Pioneers' Home could refuse to abide by the request and insist on
the life support systems.
MS. BOMENGEN said she was fairly certain there was state law that
protects against that, but there could be circumstances in which an
employee of the Pioneers' Home would not be willing to participate
in that part of the process. Current state law allows individuals
to exempt themselves from complying with the terms of a living
will; it requires them instead to assure that appropriate transfer
of the patient can be achieved either to another facility or to
another physician. She stated it would create, at least in the
employer/employee arena, the circumstance in which individuals
would be invoking their wish to not participate in that step. She
believed the state would not issue a policy at a public facility
against compliance, but rather ensure there were enough employees
on staff willing to comply with the terms.
CHAIRMAN TAYLOR said he was concerned that another individual might
need to be present to ensure the terms of his living will are
enforced at the facility to which the ambulance has taken him.
Information he received at a medical association dinner last year
indicated that 95 percent of individuals with living wills have
those living wills disregarded by the medical facility they are at
and spend the last 14 days of their life at a special care center
to the tune of $10,000 - $20,000 per day. He said if in fact 95
percent of the living wills are being disregarded, he will not do
anything to further enhance that. He further stated Ms. Bomengen's
comments indicate that through the passage of this legislation,
some additional transfer facility will need to be available to
carry out the wishes of individuals with living wills.
MS. BOMENGEN replied that it could be an outcome of this
legislation; it depends on what principles are invoked by
individuals based on their moral or religious objections when it
reaches the point of "pulling the plug." She couldn't say with
certainty that this legislation has been drafted to allow employers
to address adequate staffing to meet the care decisions.
SENATOR MILLER shared Chairman Taylor's frustration in terms of
living wills not being carried out; however, under this
legislation, if an individual having a religious or moral
conviction isn't required to carry out or participate in that
function, a transfer has to take place or the institution has to
find someone who will carry it out. He expressed concern about
violating a person's true moral or religious conviction.
MS. BOMENGEN agreed that living wills are not always carried out in
the desired manner. As this legislation applies to individuals, it
does address some of the concerns expressed; however, as it applies
to entire facilities, it could certainly create some urgent and
inconvenient situations. She further stated, as the legislation is
currently written imposing certain obligations on facilities as
employers, it may impose a problem in securing adequate staff and
it needs to be more clearly articulated to ensure protections for
employers who have to assure adequate staff.
MS. BOMENGEN further stated there are a couple of other legal
problems. She referred to page 2, line 7, and said the inclusion
of "pay for" is an anomaly and can be subject to abuse and misuse.
She asked the committee to give some serious consideration to the
inclusion of this language. If the purpose is to address things
like requiring people to deliver services they object to, she
advised the phrase "pay for" really creates a collections problem
for the facilities apart from the other intent.
CHAIRMAN TAYLOR asked, "If the collection issue would be that if a
procedure was carried out that violated their moral concerns, they
would not have to pay for that procedure or the cost of it being
provided? Is that what the 'pay for' is referring to?"
MS. BOMENGEN said it's used in the original policy and in the civil
rights of conscience that any individual may refuse to pay for the
performance of a health care service if it includes a procedure
that violates the person's moral or religious conviction; e.g.,
pain relief medication in end-of-life care. She said she wasn't
exactly certain, but the appearance of the words "pay for" are very
different and don't appear to be consistent with the provisions of
those services listed.
SENATOR MILLER cited a hypothetical situation in which a wife
decides to get an abortion against the wishes and conviction of her
catholic husband, but if financial responsibility is shared by
husband and wife, he is required to pay.
MS. BOMENGEN pointed out that those moral convictions can arise out
of nowhere when a bill is received, so there's a potential for
abuse. However, it may be worked out between husband and wife.
SENATOR ELLIS asked if SJR 35 addresses the end-of-life, living
will issue?
SENATOR MILLER replied that it did not.
SENATOR ELLIS reflected the statute change being discussed seemed
premature until voters are able to vote on SJR 35. If the voters
approve SJR 35 and it were to become part of the constitution, this
legislation would go beyond that of the constitutional amendment.
SENATOR MILLER pointed out there is a living will statute in
existence.
SENATOR ELLIS observed that part of the right of conscience
relating to performance of abortions would be elevated to a
constitutional protection; the portion about the end-of-life and
living will issues are two matters of conscience to some people
that are on different levels.
SENATOR MILLER said that asking a person to participate in an end-
of-life decision or moral convictions are some of the deepest held
convictions that a person has and sometimes the state or society in
trying to protect the constitutional rights of one group of people
trod over the constitutional rights of another group.
Number 0233
SENATOR ELLIS commented that he doesn't look forward to the day
when a Pioneers' Home resident with advanced directives or a very
specific living will has to be transferred someplace else where
their living will can be administered in the way in which it was
intended. He commented the constitutional amendment introduced by
Senator Miller doesn't address that issue while this legislation
does, which is a concern.
SENATOR MILLER said he understands the concerns expressed by
Senator Ellis. He stated part of it is the screening of hiring
process; however, what about the doctor who because of religious
beliefs cannot participate.
SENATOR ELLIS observed that was interesting and asked if it would
be appropriate for the state of Alaska to screen potential
employees of a Pioneers' Home based on their religious conviction?
CHAIRMAN TAYLOR thanked Ms. Bomengen for her comments and asked
Janet Oates to come forward to present her remarks.
Number 0200
JANET OATES, Director, Marketing and Government Relations,
Providence Health Systems, testified that Providence had supported
this legislation because it seemed to provide the "how to" of the
constitutional amendments and as Senator Miller pointed out, there
may be some remnants left over from one of the other versions of
the conscience amendments. She said Ms. Bomengen had pointed out
some of the issues regarding the definition of a public facility
and the reasons for the concern even at Providence, because under
the definitions presented in the Valley Hospital ruling, Providence
fits all the definitions. Providence receives public funds under
Medicare and Medicaid, falls under the certificate of need, has
been granted certificates of need by the state, and the land on
which the Alaska Medical Center is built was originally provided by
the federal government.
MS. OATES referred to the liability question and said some of
issues raised by Chairman Taylor are dealt with on page 2;
specifically, the institution must notify people of their position
and post it publicly; an employee must notify the employer when
they feel their conscience will be violated in providing a service.
MS. OATES referred to Dr. Nakamura's comments regarding genetic
issues in which the situations may not be a life-threatening
emergency and said there are some services that are not provided in
any hospitals in Alaska, but Providence does provide the service is
when the life of the mother is at risk. Those occasions have been
so rare that it hasn't been an issue with their employees. She
referenced the previous comments on "botched" abortions and said if
the fetus is still viable, then the Emergency Medical Treatment and
Active Labor Act would go into effect; the patient would be
stabilized and then sent to a facility where that service is
provided. She pointed out that she didn't know where that service
is provided in the state; no Native Indian Health Service hospital
or any of the Indian Health Service funded Native health
corporations provide this service. In fact, by law they're
mandated not to. If the fetus is not viable, she would say it is
the life of the mother at risk and the service would be performed.
Number 0128
MS. OATES said many of the end-of-life issues deal with the issue
of intent. She read from the ethical directives of the Catholic
Church: "There are two extremes. On the one hand, an insistence
on useless or burdensome technology even when a patient may
legitimately wish to forego it and on the other hand, the
withdrawal of technology with the intention of causing death." She
said for the Providence Health System, it's the word "intent"
that's particularly troublesome. There may be a situation when
withdrawing from life support is not intended to be death, but
rather comfort for the individual.
MS. OATES concluded that she does support this legislation as a
work in progress.
CHAIRMAN TAYLOR asked if there was anyone else wishing to testify
on SB 348.
SENATOR ELLIS noted a misspelled word on the amendment, which could
be corrected by the staff and considered a technical amendment.
SENATOR MILLER made a motion to move CSSB 348(JUD) as amended out
of the Senate Judiciary Committee with individual recommendations.
SENATOR ELLIS objected.
CHAIRMAN TAYLOR asked for a roll call vote. Senators Parnell,
Pearce, Miller and Taylor voted in favor of moving the bill.
Senator Ellis voted against it. Therefore, SB 348 moved from the
Senate Judiciary Committee by a vote of 4-1.
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