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
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.
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.
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