Legislature(1997 - 1998)
02/11/1998 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HJR 5 - SHORT TITLE: CONSTIT AMNDMNT: FREEDOM OF CONSCIENCE Number 1132 CHAIRMAN GREEN announced the next item of business would be HJR 5, proposing an amendment to the Constitution of the State of Alaska relating to freedom of conscience. Number 1138 REPRESENTATIVE TERRY MARTIN, sponsor, advised members he had been interested in the issue of freedom of conscience for at least ten years, since finding out it is not in our constitution. He noted that in Oklahoma, they had to take at least two government classes on the importance of freedom of conscience. In addition, he became aware of it while in the U.S. Marine Corps, where the commander set aside a day to talk to the troops about the military code of justice, emphasizing the importance of freedom of conscience in that they did not need to obey the order of a commander who was way out of line, such as telling someone to kill the women and children in a battle. REPRESENTATIVE MARTIN said throughout history, freedom of conscience has been a higher level of inalienable right than freedom of religion. He cited examples, including Socrates, who chose death rather than denying the truth, and Martin Luther King. Number 1338 REPRESENTATIVE MARTIN referred to a recent writing by U.S. Supreme Court Justice Sandra Day O'Connor, included in committee packets. He said she had written a dissenting opinion on the separation of church and religion, citing the history of how early freedom of conscience was a part of our liberties, that there cannot be a basic right to liberty, nor religion or lack thereof, without freedom of conscience. REPRESENTATIVE MARTIN told members he is absolutely shocked that the state didn't even consider this during the constitutional convention. He noted that he had inquired of some people who were there at the time, and he was told it was never discussed or brought up. He suggested that as a new group, the framers had accepted the model given to them, which provided for freedom of religion, not freedom of conscience. REPRESENTATIVE MARTIN referred to questions raised by Representative Berkowitz, apparently in the House State Affairs Standing Committee. He then advised members that his staff had done a good job of providing examples of wording relating to freedom of conscience in various constitutions. He said freedom of conscience has been taken for granted for many centuries and decades. He said Stalin, in his constitution, gave the people freedom of conscience and religion, but not free exercise thereof, which is why so many people ended up in concentration camps. Number 1469 REPRESENTATIVE MARTIN next referred to a document in packets containing quotations from Thomas Jefferson, which he said clearly describe the importance of freedom of conscience, even over freedom of religion, as a basic inalienable right. Representative Martin indicated Alaskans are faced with this very issue. Do doctors, nurses and others have to obey the order of a higher authority, even if it is the court system, regardless of their conscience? REPRESENTATIVE MARTIN told members, "There's only one section in the state law that says you have freedom of conscience, and it had to do with abortion. Well, what about all the other aspects of freedom of conscience in our daily lives?" He emphasized the importance of making people aware that we don't have freedom of conscience in the constitution. "And we can no longer take it for granted that no one would ever question our freedom of conscience," he said. "And it's been very successful in most state constitutions, and in the colonial days, over 300 years. And so, we shouldn't be afraid of it today in Alaska, to allow people to have freedom of conscience." Number 1556 REPRESENTATIVE BUNDE commented that he always enjoys the issues that Representative Martin brings forward, because they create interesting debate and are well-thought-out and heartfelt issues. He noted that there have been cases in the past where some religious tenets conflicted with public health, such as parents' refusal of treatment for their children, even at the peril of the children's lives, or their refusal of immunizations for contagious diseases, even at the peril of other people's lives. Representative Bunde asked whether freedom of conscience would remove the state's right to interfere for the greater good in that religious area. REPRESENTATIVE BUNDE next pointed out that there is seldom discussion of freedom from - he emphasized that word - religion. For example, with assisted suicide, there are those who, in good conscience, might believe in euthanasia. He asked: If this resolution passed, and even though euthanasia is not a law of the state of Alaska, if someone's conscience says it is the right thing to do, should that person be allowed to do it? Number 1667 REPRESENTATIVE MARTIN responded that it is very important that we don't consider it as wide-open, that someone can run through a school yard with an automobile at 85 miles per hour, for example. He referred members to the original wording of the U.S. Constitution relating to licentiousness and public health and safety. He indicated he had provided the chairman with a related amendment, and that licentiousness and public safety are things that Justice O'Connor had discussed. For example, he said, one cannot go into a theater and kill a multitude of people because they are watching the wrong kind of films. Representative Martin indicated this is a buffer and the courts have answered this before, in relationship to the Mormon Church and to Indian tribes smoking peyote; within their compound and groups and religious ritual, they could do it, he said, "but don't go smoking around the place and saying its religious rites." REPRESENTATIVE MARTIN informed members that all the states, and the Supreme Court, had balanced freedom of conscience with the safety of the majority of the people, and with the health of the people. For example, he said, if people believe the Internal Revenue Service (IRS) is misusing their money, they cannot just refuse to pay taxes. "Those questions have been addressed a number of times," he added. "But the most important thing is that in this state here, even those are minor if you don't even have freedom of conscience in the first place." Number 1784 REPRESENTATIVE MARTIN referred to the Valley Hospital case. He stated, "Right now, the only thing we see in the constitution is that you have a statutory right not to participate in abortions, much less assisted suicide act or anything else." He indicated there was a case in Australia involving legal assisted suicide. A doctor there felt bad about participating in a death controlled by computer, and the parliament immediately reversed their decision, Representative Martin said. He said there are many cases where people don't want to participate in assisted suicide or abortion. Number 1915 REPRESENTATIVE CROFT asked, "Representative Martin, does this constitutional amendment give me the right to disobey state law if I feel it conflicts with my conscientiously held beliefs?" REPRESENTATIVE MARTIN expressed surprise at the question, saying he was sure it had been brought up in constitutional classes. He then said, "You can disobey but you may pay the price, just like Socrates did. 'I am a teacher; I will always tell the truth.' And we in the Department of Education [say], 'Oh, no, you won't; you won't say anything about this and that particular subject.' And so, therefore, he or she loses their license, because they insisted on telling the truth of what they thought about this particular point of history. And so, they can go to court, you know." Number 1986 REPRESENTATIVE CROFT said he himself didn't know the full extent of this right, although he is familiar with a lot of case law surrounding the free exercise and establishment clauses. He said he understands that freedom of conscience is a related subject, but he doesn't understand whether this is meant to broaden it. He again asked what would happen if he found a law to be morally repugnant and chose to violate it. REPRESENTATIVE MARTIN answered that he may pay the price and then would have to go to court. He mentioned some unspecified cases about people participating in abortions, indicating the second case said a doctor didn't have to participate but that nurses and janitors could be told to do so. He indicated it applies to education and to how parents raise their children. Number 2091 REPRESENTATIVE PORTER said he was confused also, and that he would ask Representative Croft's question another way. He asked, "If it is not the intent of this legislation to provide an opportunity for someone to violate the law against their conscience, or violate existing case law against their conscience, what is the function of this proposal?" REPRESENTATIVE MARTIN replied, "The function of this thing is to make sure that authority - whether it be legislative authority, law enforcement areas, whatever it may be - will not force someone, as in the military service, to do an act against their conscience. And you will not order someone to kill someone else when they were absolutely opposed to it. You will not force a teacher, just because she got a license, to teach something that she realizes is wrong, is absolutely not the truth, or she will lose her license. People must be guarantee[d], as a basic role of liberty, to have freedom of conscience. There will always be give and takes, but if the people don't have freedom of conscience to begin with, then we can tell them that they must obey every law." Number 2184 REPRESENTATIVE PORTER responded, "Maybe the Marines were different from the Army, but I got that speech, too. And what they told me was that I'm not going to be required to violate the laws of the United States, the Constitution of the United States, or the laws of international agreement of war, not my conscience. And if it is that if I am a teacher - if that's the example you want to use - or if I am an employee at the Palmer hospital, and lawfully abortions are being performed there, and the hospital administrator says, as an employee, you will do your duty, and you have -- he doesn't have the ability to say, 'You will do it because somehow you're indentured here and you can never get out of this situation.' He's saying that ... it's a job requirement, just like most employers have for their employees." REPRESENTATIVE PORTER continued, "If you're saying that this would allow a person to say 'no' in either situation - a teacher or the hospital employee - and then not suffer the consequences of termination, or discipline or something, I'd like to hear that. If you're saying that they would have to suffer the consequences of discipline or termination, then there isn't any function to this thing." Number 2302 REPRESENTATIVE MARTIN replied, "They may temporarily suffer losing their jobs and so on, but we give them the rights to a constitutional freedom to go to the courts and go through the necessary system to fight the authority that told them that they will not tell the truth, that told them ... that they must participate in this termination of life, would be assisted suicide. So, the authority must always know, too, that these people who I am in charge of have basic rights of freedom of conscience, and I cannot force them to do something. 'If you want to kill that person, Mr. Authority, you do it; don't make me do it.'" Number 2359 REPRESENTATIVE PORTER said he readily understands the sensitivity to the issues of abortion and assisted suicide that exist, and recognizes that there are legitimate differences of opinion on those kinds of issues. However, this kind of a proposal would provide an undefined right of conscience; it can apply to anything. He said he had this vision of an animal rights advocate working in a meat packing plant and saying, "I'm not gonna pack meat, but you can't fire me." REPRESENTATIVE MARTIN replied that for 300 years, we have had this inalienable right, or at least we thought we did. Many states, in many other areas, have constantly battled with it, which is why we have a court system. He added, "But that just shows right here, in the Valley Hospital, if you don't have it in the constitution, you don't have it. And that's what they're saying in that document, in that court case, right here on page 20 [ends mid-speech because of tape change]." TAPE 98-16, SIDE A Number 0001 REPRESENTATIVE BERKOWITZ indicated he had the case. Number 0091 REPRESENTATIVE BUNDE said, "The purpose of freedom of conscience is to allow people to refuse to do something that would conflict with their conscience, ... but then I heard Representative Martin say, 'But you have to pay the price.'" REPRESENTATIVE MARTIN said, "Yes." REPRESENTATIVE BUNDE said, "I can be a conscientious objector in the military, but I still have to serve two years. I can refuse to pay a portion of my income tax that would go to national defense, but I would have to face some legal consequences. In Alaska today, don't we have that right to refuse but pay the consequences?" REPRESENTATIVE MARTIN replied, "I would say no, because you don't have the rights here, as on page 21. Same thing with the Valley. Individuals, nor this corporation, have the right, the constitutional right, to conscience, (indisc.) the court opinion, Valley Hospital has no constitutional right in this issue. It is at most a statutory right, freedom of conscience. Therefore, abortion is superior. Because it's conscience, it's constitutional. No way, shape, or form, in any document that I've found, do we see in the constitution - or in the right to privacy, in that legislation that went on for two years - did they ever mention, in any way, shape or form, the right to abortion. But our supreme court said they would find it right here, we will reach in and find [that] rights to privacy means right to abortion. They themselves discovered that, for no foundation whatsoever. They could also use ... Section 21 of Article I, which says the enumerated rights of the citizens, as in this document, do not prohibit the citizen from ... the other inalienable rights. So, why our lawyers or whoever didn't go to reach into Section 21, the basic rights of freedom of conscience -- so, it seems like now we must print it." Number 0249 REPRESENTATIVE BUNDE said he can understand the philosophical approach. He stated, "But I didn't understand that today, in Alaska, a person who refused to pay taxes but still would have to pay the consequences ..." REPRESENTATIVE MARTIN interjected, "Yes." REPRESENTATIVE BUNDE continued, "...and then I heard you say ... that the Valley Hospital should have freedom of conscience. Would this extend, then to corporations ..." REPRESENTATIVE MARTIN affirmed that. REPRESENTATIVE BUNDE continued, "... or to organizations? Not to a person. We're talking about a hospital now." REPRESENTATIVE MARTIN responded, "We did have a doctor that just recently settled with the state, and with the federal government, on freedom of taxes. ... But anyway, he finally paid the price and found out that this does not permit him to refuse to pay taxes. So, there's what we call the give and takes. You can find other lawyers besides myself - as not a lawyer - who can give you the other balance of what these two gentlemen would say on the history of fighting and paying the price for your free conscience." Number 0338 REPRESENTATIVE BERKOWITZ said, "Representative Martin, you keep pointing to the Valley Hospital case as a reason ... why individuals can be compelled to perform abortions. Could you point out to me, in that case, where such language exists?" REPRESENTATIVE MARTIN replied, "Well, they don't say that in that case, because ... they're only using the hospital. No one yet - no nurse, no doctor - has yet been forced to do an abortion against their conscience. But the threat is there, even though it says it in statutory language, that people are free from not participating in ...." Number 0397 REPRESENTATIVE BERKOWITZ told Representative Martin he had corresponded with the attorney involved in the case, who had sent him a fax. Representative Berkowitz read a portion of the judgment in the Valley Hospital case: "Nothing in the permanent injunction granted as part of this Final Judgment shall require any member of the medical staff of Valley Hospital, or any officer, agent, servant, or employee of Valley Hospital, to participate directly in the performance of any abortion procedure if that person, for reasons of conscience or belief, objects to doing so." Representative Berkowitz then concluded, "Given that kind of language, it seems to me that your concerns about the scope of Valley Hospital are vastly inflated." Number 0447 REPRESENTATIVE MARTIN replied, "The freedom of conscience aspect came up way before this decision on the Valley Hospital. Years ago, when the nurses actually went on strike against the two doctors who were insisting that they went into abortions, and there was such a problem in the valley area that only as a group, when they fought against participating in abortions, that they were able to get away with it. So, the doctors were able to get nurses from the other areas that would participate in the abortion process." REPRESENTATIVE MARTIN continued, "Though it had been threatened, in this case, I could say yes, they were only talking about Valley Hospital and that institution. It was not an individual requirement yet that came up. They were only talking about the hospital must participate, because the hospital received federal dollars and state dollars and so on. It's only two steps further, then, they may force some nurse -- and you have a couple of witnesses here, nurses that will give you a different perspective, how they've been, perhaps, been forced to do it." REPRESENTATIVE BERKOWITZ stated, "So, the hospital had to pay the consequence for accepting federal dollars." REPRESENTATIVE MARTIN replied, "As this case says." REPRESENTATIVE BERKOWITZ asked whether that was a yes. REPRESENTATIVE MARTIN replied, "Yes, they said, 'Because you accept it, federal monies and state monies, you must provide these services.' But then, we have yet the individual case." He noted that a couple of people would testify on that. He then mentioned Adolf Hitler and the belittling of the value of life. Number 0581 REPRESENTATIVE BERKOWITZ pointed out that there is a big difference between conditions in Nazi Germany and those in the United States, which is a democracy where people have some degree of representation. He suggested the analogy is misplaced. REPRESENTATIVE MARTIN replied that they are talking about freedom of conscience, indicating people in Germany were refused that right. Number 0615 REPRESENTATIVE CROFT stated, "I was going to make those points, as well as saying that the Valley Hospital case caveats the issue of Providence, as we're not dealing with one that has a religious affiliation, and that may, in fact, be a different situation; we don't know." REPRESENTATIVE CROFT said he was still trying to figure out the answer to the questions raised by Representatives Porter and Bunde. He stated, "I have the right now to violate any law I want, for whatever reason I want, and pay the consequences. It's really not much of a right if I have to pay the consequences. It seems to me only a significant right if I can say, 'I can do this, and you can't punish me for it - fire me, put me in jail, whatever it is.' So, would this now make me able to violate laws without paying the consequences?" Number 0674 REPRESENTATIVE MARTIN replied, "We're saying no, it would not. But we're also saying that authorities cannot, because now we want to give people the right to freedom of conscience. And if they don't have that right, then authority can tell them to do anything, and be even more demanding to put them in jail and shoot them on the spot for disobeying an order, or fire them from their jobs. As long as we don't have the rights, by constitution, that's inalienable rights, then any authority can do almost anything with you, and you don't have much of a defense with the courts, especially the courts' saying it's only a statutory right and it's not a constitutional right." REPRESENTATIVE MARTIN continued, "And when you look at all the history of the other states, why is it that they give their people the freedom of conscience? Why is it, with so -- a supreme principle of liberty, when this country first began or even before we began, in the revolutions, that they were fighting for freedom of conscience against religion of other countries. That was the most important thing. ... Maybe I'm not getting it across right, but it's such an inalienable right throughout the history of the liberty of man, of growing and becoming free, that today we don't understand it?" CHAIRMAN GREEN indicated he didn't want to cut this short, but testifiers were standing by, both on teleconference and in the audience. Number 0781 JANET OATES, Director, Marketing and Government Relations, Providence Health System, testified via teleconference from Anchorage in support of a "conscience clause" constitutional amendment. She said the Valley Hospital rulings had brought this into focus for them. MS. OATES explained, "We had felt that as a private and religious hospital, our position of not doing abortions was not jeopardized. We're not quasi-public, as the court ruled Valley Hospital to be. But we have been cautioned by our own attorneys that until this is brought to court, we couldn't be sure of that, that the only way to assure we would be free to maintain our position would be a court ruling. Obviously, this isn't something that we're very interested in pursuing; we've got plenty of other things to do besides that. So, we are ... concerned for other hospitals in the state who find themselves vulnerable." MS. OATES said they'd heard just that day that hospitals are having difficulty finding staff willing to do abortions. "And so, they're having to consider the option of recruiting staff, which is an expensive and time-consuming task," she noted. "We also see risk in the hospitals where Providence would partner, especially with the community of Kodiak and in Seward. In Seward, we simply rent the building from the City of Seward. But in Kodiak, there are borough dollars that come in to contribute to ... capital expenses." Number 0907 MS. OATES continued, "We do believe that a constitutional amendment would take us back to the intent of the original legislation regarding abortions. A couple of suggestions that we would like to make regarding this particular amendment, if you're going to use this is as the vehicle, that we would prefer an expansion from an individual, perhaps to, 'An individual or organization may not be denied freedom of conscience.'" MS. OATES said second, although they'd received assurance that the broad language of HJR 5 reflects the U.S. constitutional perspective, there is concern in our state, "independent individualists that we all are, that we might be setting ourselves up for more battles between extremist points of view, that challenge our basic laws ... for civil order and greater good." At the same time, she pointed out, this reflects the Providence commitment and core values of compassion and respect. She noted that respect goes both ways and explained, "We're asking people to respect us as we pursue the dictates of our conscience, but at the same time, we're willing to give them that same right." MS. OATES concluded, "We're comfortable with the language of Senator Miller's proposed amendment, which specifically addresses this in ... the context of abortion, and we respectfully suggest that you might consider looking at that approach." REPRESENTATIVE ROKEBERG asked whether she had written comments. MS. OATES indicated she would provide those. Number 1021 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (ACLU), testified next via teleconference from Anchorage, indicating the organization is a nonprofit, nonpartisan, nongovernmental entity that represents 800 members throughout Alaska. MS. RUDINGER stated, "And I'm here to express our opposition, on behalf of our membership, to HJR 5. Frankly, we're baffled. If approved by the voters, would this constitutional amendment supersede state authority granted in other parts of the constitution? For instance, would an individual's traditional beliefs around hunting and fishing supersede the state's management authority over fish and game granted in Article VIII? Could individual invoke this constitutional right to practice polygamy?" MS. RUDINGER said, "The supreme court expressly notes, on page 5 of the Valley Hospital opinion, quoting the final judgment that Representative Berkowitz read to you, that this injunction does not require anyone affiliated with the hospital to participate directly in the performance of any abortion procedures if that person, for reasons of conscience or belief, objects to doing so." Number 1106 MS. RUDINGER concluded by suggesting HJR 5 is so vague it could actually be dangerous. She said if this measure intends to allow exemption from state laws for those exercising their religious beliefs, the legislature would do better to craft a religious freedom restoration Act, "a so-called RFRA," wherein exemptions to the state's laws are tailored much more narrowly so as to protect specifically stated religious rights. She indicated the American Civil Liberties Union had supported the federal RFRA, which was subsequently overturned by the U.S. Supreme Court. She said that while she cannot make promises regarding future positions on hypothetical legislation, she suspects that the Alaska affiliate would be much less skeptical of a carefully crafted state law protecting specifically delineated religious rights than they are of this overly broad and vague proposal. Number 1208 TED DEATS, Legislative Secretary to Representative Terry Martin, Alaska State Legislature, came forward to testify as a citizen of Alaska. He stated, "I think the citizens should have a right to vote on whether to have a freedom of conscience amendment, because Valley Hospital thought they were protected by state law that said hospitals and people do not need to participate in abortions, that we had a conscience amendment in state law. And the supreme court under the right to privacy -- interpreted the right to privacy that abortion was a superior right to ... our state conscience right." MR. DEATS commented that the right to privacy was never intended for the purpose of abortion. He said it was for electronic and computer surveillance of citizens. He stated, "So, I think that I'd like that law, in particular, protected, the right to not participate in an abortion. That's a state law, and I would like to have that law protected." MR. DEATS referred to mention that no person is required to directly participate in an abortion. He asked: With a small hospital with 36 beds, what is "directly"? Is it the surgeon? Is it the nurse with an anesthetic? He stated, "You're putting an undue moral burden on people that have to clean up afterwards, they have to remove what remains. These people are going to be forced to do that, because they're not directly participating. And I think the state law would be protected for these people if we had a constitutional freedom of conscience that said, 'Yes, this state law is protected under freedom of conscience.'" Mr. Deats went on to say the ruling was against Valley Hospital in part because it was a quasi-public hospital. He quoted from the judgement in that case and pointed out that the hospital is a community hospital whose board is elected by a public membership. Number 1352 DOROTHY McDOWELL came forward to testify. She said, "The only thing that I wanted to say, I guess, that Alaska's the only state that has abortions, and to refuse could leave them not only ... unemployed but also unemployable, by taking their professional licenses. And this is what I'm really concerned about. As a registered nurse of 40 years, I encountered the situation of thinking I had to help the doctors with abortions when I went to work in the operating room here ... in Juneau. I watched one and decided I could ... not, in good conscience, take part in helping with them. My husband advised me to talk to our minister, as I was ready to resign. And this was a big thing for me, because I had worked most of my life in the operating room. Our minister verified that I could not help with these abortions and be able to live with myself." MS. McDOWELL continued, "The following may give you some idea of the conscience I would be violating. It was taking a life. And with Christ's teaching, we are to love our neighbors and ourselves and to choose life. I had taken the Hippocratic oath when I graduated from nursing school, in which I swore to revere him, Hippocrates, as I would a parent, prescribe for the good of the patient, give no deadly drug, perform no abortions, act only for the welfare of the patient, and keep his secrets, and also to keep themselves from intentional ill-doing and seduction." MS. McDOWELL continued, "Fortunately, I had heard of Alaskans for Life. I called them, and they showed me the law which stated that I did not have to participate in them, to help with abortions, and supported my decision to take this to my employer. After showing my supervisor this law, I was able to keep my job and not assist the doctors with abortions." MS. McDOWELL continued, "During my employment there, some of the nurses came to me and asked how they could get out of having to help with the abortions, because they were having some of the patients have repeated abortions, in other words, indicating that they were using it as a form of birth control. They were beginning to feel guilty and no longer wanted to help with the abortions. They asked why I did not help with them, and I told them about the good conscience law that was in effect at the time. They were thankful that they didn't have to help with them anymore. I heard one nurse ask a doctor prior to an abortion, 'When are we ever going to stop doing these?' She indicated to me that she was very tired of helping with them. Shortly after that, I noticed that there was only one doctor left doing them." MS. McDOWELL concluded, "I hope you will join me in supporting this bill, now that you realize how many lives are affected by participating in abortions. I am deeply concerned about the welfare of good nurses and doctors who refuse to take part in abortions, thereby losing their licenses to practice as a medical care provider." Number 1570 SID HEIDERSDORF, Alaskans for Life, came forward to testify. He stated, "We support the goals, certainly, of HJR 5. There's been much discussion here, and I think that we agree that this amendment to the constitution would be better off being much more specific. Certainly, we've got to avoid opening the ball game up to run the risk of someone saying they have the right to jeopardize health and safety, which we ... certainly do not support." MR. HEIDERSDORF said, "It's unfortunate that we even have to get involved with trying to amend the constitution. But I think in view of what ... the Alaska courts have said in that Valley Hospital case, that it's important to maybe try to preempt the next possible step, which ... would be to consider the requirement that personnel on a staff of a hospital may be required to participate in abortions. And I also would like to limit our concerns and my testimony here. Really, we're concerned about the life issues: abortion, infanticide, doctor-assisted suicide, euthanasia, that type of thing. So ... that's the kind of thing we have in mind for an amendment to the constitution, again, to preempt any future decisions that might be in line. It staggers the imagination to think that the courts would rule that individuals had to participate, but 15 or 20 years ago, I would have told you that we would never have arrived at the position we are now, much due to what our courts have been saying about this issue." Number 1653 MR. HEIDERSDORF said anyone involved in the abortion debate will remember that in the early Sixties and Seventies the conscience clause was an area where basically everyone agreed. Even those who favored abortion agreed it is appropriate that people shouldn't be forced to participate in something that they find repugnant. He stated, "And I think that in the Alaska bill which was passed in 1970, surely the conscience clause was the least controversial aspect of that bill." MR. HEIDERSDORF said he couldn't find a definition of "individual" in the Alaska constitution, and he asked whether it covers an institution. He said he believes a community should be able to decide whether its hospital will provide those kinds of services. He stated his understanding that in the U.S. Constitution, the word "person" covers legal entities, which he indicated attorneys would know more about. Number 1715 MR. HEIDERSDORF concluded by pointing out that the license to practice medicine is a privilege, not a right. He suggested it would be easy for legal entities, somewhere down the road, to put pressure on people about who they will issue licenses to, because privileges are easy to revoke. He stated, "And some kind of a freedom of conscience provision dealing with these fundamental life issues in the constitution, ... we strongly support." Number 1760 REPRESENTATIVE PORTER said he wasn't that familiar with the Valley Hospital case, although he had read about it in the newspaper some time ago. He said he was confused about the effect on someone's license to practice medicine, either as a nurse or a doctor. He asked, "Considering the statute, how would someone's license be in jeopardy ..., or was that an issue in that case?" MR. HEIDERSDORF said no, then added that it is an issue right now, which is why he calls it a preemptive move on the part of the legislature to put this issue before the public. He asked: The next time around, how do we know where the courts may come down on this issue? He emphasized that that is what they are really concerned about. For example, he said, it is hard to get staff to participate in abortions now. Number 1801 REPRESENTATIVE PORTER asked, "I guess I understand what you're saying, but do you understand reluctance to put something this general on the ballot, considering what might come of interpreting it, not interpreting something else?" Number 1811 MR. HEIDERSDORF said yes, indicating that is why for the purposes of Alaskans for Life, he'd suggested something more specific, limited to the life issues. He added, "Yes, otherwise we heard the discussion here about, 'Do you have the freedom to do anything you want?' Well, we have that freedom now, for sure. But we're viewing it from the protection of the medical profession." REPRESENTATIVE BERKOWITZ asked whether, as it is written now, Mr. Heidersdorf sees the dangers of leaving it with language this broad. MR. HEIDERSDORF replied, "I think it's too broad, yes. I would say that it'd be better to be more specific." Number 1847 CHAIRMAN GREEN provided members with a possible amendment for consideration, specifying that he wasn't formally offering it that day. He noted that it had been mentioned in earlier testimony. Chairman Green then closed public testimony and indicated HJR 5 would be held over.
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