Legislature(1995 - 1996)
04/16/1996 03:07 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HJR 50 - FREEDOM OF CONSCIENCE - BILL OF RIGHTS Number 828 REPRESENTATIVE ROKEBERG commented this bill had more referrals than a hooker in Subic Bay. REPRESENTATIVE TERRY MARTIN, Sponsor of HJR 50, said people may be wondering why there was a need to address the constitutional right of freedom of conscience. Ironically, Alaska is one of the few state constitutions that does not guarantee freedom of conscience. Most constitutions from the very beginning of the revolution (indisc.) England, especially the Mayflower Compact was very clear that freedom of conscience was a higher inalienable right than freedom of religion. The freedom of conscience, the freedom of religion and the exercise thereof can be found in most constitutions. Even though Alaska is one of the newer states, the element of the freedom of conscience was not included in the state constitution. Members of the Constitutional Convention in 1955- 1956 have said they just did not think of it because they thought it was a basic right and thought freedom of religion was the priority. He commented that Russia under Stalin, guaranteed freedom of conscience and freedom of religion, but people were not free to exercise either one. REPRESENTATIVE MARTIN said it is important today because of a couple of things that have happened in Alaska. About five years ago, a bill was introduced which basically stated that freedom of conscience would not be used as a way of not providing services to people that want medical help in different aspects of life. More recently, there have been two judges who would not force a physician or a pharmacist to give drugs to individuals who wanted to terminate their life. The drugs had to be prescribed by a doctor or a hospital. There were individuals who felt their conscience would not allow this, especially since an individual could probably take their life any time they wished. He noted that for a long time in America we have allowed freedom of conscience as a reason for not participating in wars, but an individual could do something else to help their Nation such as public health service. He noted there were a number of medics who were conscientious objectors in the Marine Corps that went to the front line and worked strictly in medical care. REPRESENTATIVE MARTIN said he did not believe this was a light matter; he felt it was superior to freedom of religion and a person's conscience allows them to choose a religion or no religion. He noted there were a lot of people with no religious affiliation but are very moral in their behavior and it is their conscience that guides them. He believes it is important to insert this in the state constitution as an inalienable right. Number 1054 REPRESENTATIVE ROKEBERG said he thought that medics in the Marine Corps were Navy corpsmen. REPRESENTATIVE MARTIN said most of them were Navy/Marine Corps, but there were also Marines that were medics. REPRESENTATIVE ROKEBERG asked what the effect of this would be if there was a reinstitution of the national draft? REPRESENTATIVE MARTIN said, "You can have your national draft, but they honor the freedom of conscience of the individuals who then had the choice. A lot of people had the choice of the peace corps rather than the VietNam War or the Korean War. So, there are many options in serving your country if society said that this was important that everyone serves their country some way, we're not going to force you on the front lines where you kill someone as a conscientious objector, but you can help your country in many other ways." REPRESENTATIVE ROKEBERG asked if the catalyst of this happened to be a case that came out of the Palmer District Court regarding physicians in the Matanuska Valley hospital? REPRESENTATIVE MARTIN said that was something that has come up twice and it is currently in the courts. The judge ruled about a year and a half ago that providers of medical services cannot use conscientious objection as a reason for refusing abortion services. He said there is an Alaskan law, but if a judge rules that the law is unconstitutional, the next step is to make this an unalienable right. There are a lot of nurses in the Palmer hospital who do not want to be forced into providing or participating in abortion services. REPRESENTATIVE ROKEBERG asked if the decision was based on constitutional grounds? REPRESENTATIVE MARTIN said he didn't know for sure, but he knew the attorneys were fighting it based on constitutional inalienable rights. He said they bring up the law, but laws can be made one day and changed later by another legislature. However, once an inalienable right is put in the constitution it is a lot harder to change. He added it's a higher level that the courts will recognize rather than state statute. CO-CHAIR BUNDE asked what other states have this in their state constitution. REPRESENTATIVE MARTIN said Massachusetts, Minnesota, plus others. REPRESENTATIVE DAVIS noted the Alaska Constitution speaks to freedom of religion and many of the examples provided for the committee are under freedom of religion and explain in more detail what that is; that's where their freedom of conscience comes in. He said it would appear that if there was a dissertation on the shaping of the Alaska Constitution, freedom of conscience could very well possibly fit in under the freedom of religion section. REPRESENTATIVE MARTIN said yes, and that's a long drawn out process. He said that one of the first freedoms that individuals were fighting for once they began thinking of democracy was the freedom of conscience. The Revolution writings in the age of enlightment mostly talk about freedom of conscience first. He noted that part of the reason England busted up was because they had only one religion and there were segments of the population that did not believe that way. Consequently, they left and went to Holland or other countries, and from Holland they came to America. Number 1354 CO-CHAIR BUNDE asked if there was any other state that had freedom of conscience as a separate item in their constitution. REPRESENTATIVE MARTIN said there were a number states. REPRESENTATIVE DAVIS asked if Representative Martin agreed that it could already be a part of our constitution, but just not expressly indicated. REPRESENTATIVE MARTIN said it could be. He said as it is now, it is in law and it has been upheld at least three different times that freedom on conscience in the law would be recognized. Now we see that being challenged by the courts and by the legislators, themselves in the past. Mostly, as Judge Fabe (indisc.) said that because medical people (doctors and hospitals) accept federal and state monies, they must provide services for the individuals. He said, "Palmer was the first one that everyone seemed to be picking on, although the bigger hospitals don't provide it either; that's where the challenge was and it was the nurses more than anything else. It's not that they cannot get nurses; they have been able to get nurses from other areas when in this case, abortion services were required. Then the judge changed her opinion and said that we did not mean the person directly responsible, but anyone who assists and it's the nurses who have to assist and they don't want to. They are fighting this on freedom of conscience." He commented he had introduced this bill before that incident. REPRESENTATIVE VEZEY was curious as to why Representative Martin thought the problem couldn't be addressed by statute rather than constitutional amendment. REPRESENTATIVE MARTIN said because right now it is being challenged by the judge, herself. Number 1522 CO-CHAIR TOOHEY said any hospital that accepts federal funds must perform what is deemed legal. Speaking as a nurse, she said there has never been a time when a nurse has been asked to perform a duty, such as an abortion or be part of an abortion clinic unless the nurse wants to be. That decision is respected by the hospitals, doctors and nurses. The Palmer Hospital will respect the nurses' wishes not to participate in abortions if that is their choice. The hospital will have to get other nurses, but there are many nurses who believe it is a woman's right to have an abortion. REPRESENTATIVE MARTIN said, "We did bring in the case that did go (indisc.) the attorneys at law who are defending the nurse and hospital on that abortion case by Judge Fabe, and they do talk about that the law evidently used to be upheld and most judges in the past did not go beyond that; that the law protected the nurses rights of freedom of conscience. Now, we see that because of federal and state monies as Judge Fabe says, they cannot use that as a reason for refusing to provide service." He commented the latest development in the Lower 48 is that judges are refusing to tell a doctor or a even pharmacist in a couple of cases that they will provide the prescription to terminate someone's life. Number 1686 REPRESENTATIVE BRICE said, "Given that there's a high level of sensitivity, I guess, towards the ideas that you're talking about with a conscientious objection, and given that what we've seen in Montana with the Freemen Movement and that type of stuff, where people feel that their objections to rule under a sovereign state is basically saying that they're not party to those laws, I would see this as basically validating their actions and allowing them to ...Well, let's put it in very basic terms, BP, Exxon and ARCO say, you know, I conscientiously object to paying taxes any longer. According to this, although you do say individual and they might be considered something else, how is that going to work into this? How do we deal with the idea of society, and being a member of that society and being required to act within certain parameters, if we're going to participate in that society versus, you know just basically willy nilly going off spinning out into some type of void claiming conscientious objection." REPRESENTATIVE MARTIN said this is the thing that is always the challenge through an open society like ours that you will constantly come into one person's feeling that his/her conscience allows them to terminate the life of their child. He said the next step is when you come into conflict with another individual's rights. He said, "Your right to freedom to swing your hands and your arms ends at my nose." REPRESENTATIVE BRICE said that is not the issue he was raising. The issue being raised is as a member of society, there are certain rules that we all have to follow. There are only two things guaranteed in this life: Taxes and death. He questioned as a property taxpayer of a municipal ordinance, could he be granted immunity from prosecution under the passage of this resolution if he did not pay property taxes. In other words, he conscientiously objects to the concept of property taxes and refuses to pay them. He noted that's what this legislation says. REPRESENTATIVE MARTIN noted there have been many people throughout the history of America that have refused to pay taxes or participate in government. There are society limitations on what one's individual conscience can be, especially in relation to depriving another individual of their rights and freedom to talk and sing, among other things; also, of how an individual participates within society itself. That is why we have courts. The courts say it is evenly applied to all citizens to pay for services that government offers. You have a right to argue with local government that the tax is too high or too low, etc. REPRESENTATIVE BRICE interjected that Section 25 of HJR 25 specifically grants him the right not to pay those taxes. REPRESENTATIVE ROBINSON noted that much of the discussion had centered on medical procedures and she was curious about a situation where there could be one doctor and one nurse in a rural area, and someone's life is dependent upon those two individuals, yet one of those individuals does not believe in that procedure. She asked if it was Representative Martin's belief that one of those people could make the decision not to perform a lifesaving procedure because they don't agree with the procedure? REPRESENTATIVE MARTIN said this is what every doctor and nurse goes through all the time. He noted that as time goes on more and more hospitals will choose to specialize in certain areas such as death with dignity and there will be doctors, nurses and other providers who will be allowed to give those prescriptions. That is a conscience decision. Most individuals in Juneau go to Tacoma for abortion services. He didn't know if it was the choice of the hospital or the doctors in Juneau not to perform that procedure. He didn't know how it was worked out with the individuals in the smaller communities. TAPE 96-42, SIDE A Number 001 CO-CHAIR BUNDE said he was not anxious to address constitutional amendments without a lot of study and discussion, but noted there were a number of committee referrals. REPRESENTATIVE DAVIS believed the comments about the Freemen were good as they relate to this issue and he personally felt this could open up pandora's box. In his opinion, the founders of the state Constitution were right in phrasing it like they did. REPRESENTATIVE MARTIN thanked the committee for hearing this bill. He commented this was the first time in six or eight years that a committee even had courage enough to bring it up for discussion. Number 119 CO-CHAIR BUNDE closed public testimony. He asked for the wish of the committee. Number 127 REPRESENTATIVE VEZEY made a motion to move HJR 50 from committee with individual recommendations. Co-Chair Toohey objected. REPRESENTATIVE DAVIS noted that he would vote to move HJR 50 out of committee only because it generates a lot of interesting and important discussion. CO-CHAIR BUNDE asked for a roll call vote. Voting in favor of the motion were Representatives Davis, Vezey and Bunde. Voting against the motion were Representatives Brice, Robinson and Toohey. REPRESENTATIVE MARTIN asked if the committee would reconsider the motion when Representative Rokeberg returned. CO-CHAIR BUNDE said Representative Martin could discuss it with Representative Rokeberg and if he cared to bring it up for reconsideration, Co-chair Bunde would entertain the motion.