Legislature(1997 - 1998)

03/26/1998 01:45 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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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