Legislature(1997 - 1998)
04/08/1998 09:05 AM Senate 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.
CS FOR SENATE JOINT RESOLUTION NO. 35(JUD)
Proposing an amendment to the Constitution of the State
of Alaska relating to participation in an abortion.
Co-chair Sharp said there was teleconference testimony of
institutions that may be affected by this bill.
SENATOR MIKE MILLER, representing Senate District Q was
invited to join the committee. He said he introduced this
resolution after speaking with a number of individuals and
organizations around the State. It basically stems from the
Valley Hospital case decided by the Supreme Court. He
briefly explained a statute passed by the Alaska State
Legislature which essentially legalized abortion in the
State. One very important clause included by Senator Barry
Jackson from Fairbanks which stated the bill provided a
person or hospital is not to be required to participate in
abortion and neither shall a person or hospital be held
liable for refusing to participate in an abortion. He said
that if an individual had the right to choose to participate
in an abortion another individual should have the same right
to choose not to participate. This is the same law that had
been on the books since 1970 and essentially the law that
was struck down in the "Valley" case of last fall. He
explained that this bill would add a new section in the
Constitution saying that nothing in the Constitution
requires a person, private or public health care facility,
to participate in or provide accommodations for the
performance of an abortion. He said there were a number of
issues that came out of the mentioned Court decision that
were very disturbing. He believes that the next hospital
that will be sued will be Providence Hospital in Anchorage.
It is well known that the hospital has some very strong
beliefs. The same would apply to the Ketchikan hospital.
Both are run by nuns. He noted that in the "Valley" case
the argument was that the hospital was a quasi-public
institution because it participates in the State's
certificate of need. But he said every hospital falls into
that category. Also, the Valley hospital received
construction funds, lands and operating funds from the State
of Alaska, Federal and local government. This would also
apply to Providence Hospital as it is now located on public
grounds. Further, a significant portion of the operating
funds received from Medicare and Medicaid. Under current
law, without this resolution, Senator Miller feels that
providence Hospital will lose their case. This was very
scary to have the government telling the religious what they
will practice.
Senator Adams noted that Providence was a private hospital
and asked if it was affected by the legal decision in the
"Valley" case? Senator Miller said it was not because a
suit had not been filed at this time, however, as mentioned
previously, he felt that Providence would lose if a suit is
filed.
RICK SOLIE, Fairbanks Memorial Hospital via teleconference
from Fairbanks said he was available to answer any questions
the committee may have.
JANET OATS, Director of Marketing and Government Relations,
Providence Hospital, Anchorage was invited to join the
committee. She said Providence Hospital expressed support
for the resolution. She said it would help resolve the
issue raised in the "Valley" hospital Supreme Court ruling.
Providence Hospital sees the matter as an issue of choice.
It was hoped that the proponents of choice would support the
same values for them. She further asked that the matter not
devolve into pro-choice/pro-life debate. Providence
Hospital has a history of respecting the beliefs and
conscience of others, and while they clearly make known
their values they do not seek to impose those same values on
others. She reminded the committee that they had not bowed
to pressure from some individuals to not allow some
physicians on their staff who do abortions in their own
offices to practice at Providence. They feel that passage
of this resolution would insure mutual respect continues in
the State. She further stated that the definition of quasi-
public hospital is so broad that it could apply to every
hospital in the State. In the "Valley" case, the Court
found that without a conscience clause there could be a
giant leap from the right to choose to be involved in an
abortion to a mandate to participate. Originally,
Providence Hospital felt the ruling did not apply to them
and had no concern. However, Providence Hospital also
manages and operates the hospitals in Seward and Kodiak,
which is essentially a lease contract with the Borough of
Kodiak and the City of Seward. This brought them closer to
a quasi-public facility. In wrapping up her testimony she
asked the committee to consider passage of this resolution
to resolve the mentioned issues.
Senator Adams said that he believes Providence is the best
hospital in Alaska and has enjoyed the services there. He
asked if passage of the resolution as written could lead to
ban of all constitutional protective abortions? Ms. Oats
said she did not think so. Most elective abortions are done
in the first trimester and not done in hospitals but rather
in physicians' offices.
Senator Donley asked the policy of Providence when the life
of the mother is in danger. Ms. Oats responded that in the
case of the life of the mother being in danger the hospital
has performed therapeutic abortions. There is an ethical
committee that can be called, the clergy or related
affiliation of the individual would also be invited to
participate and then a decision would be made. This is also
an elective abortion.
KRISTEN BOMENGEN, Assistant Attorney General, Human Services
Section, Civil Division, Department of Law was invited to
join the committee. She said that there were some problem
with some terms in the latest version of the resolution
being applied in an overly broad manner. Specifically she
referred to abortions when the life of the mother was at
risk. She did not feel that the resolution adequately
addressed those kinds of circumstances. Definitions of
"health care facilities" as currently applied in statute may
run into some contradictory analyses. More particular, the
resolution did not address instances that may arise in which
there are emergencies. This would create a constitutional
right for an individual or facility to assert contrary to
what might come up in evaluating an emergency. This would
raise concern about what the results might be in trying to
analyze the assertion of a constitutional right when one is
presented with a life and danger circumstance. She further
believed this resolution could present problems for
hospitals that wish to provide abortion services in their
facilities. Another anticipated problem would be with an
individual contracting with a facility to perform abortions
and then having a change of mind create a constitutional
problem with the original contract. There is a problem with
trying to achieve indirectly what the State cannot achieve
directly. There could be some outcomes that would result in
the effect being, for example the individuals in Kodiak, an
abortion would not be available. A challenge could based on
those effects, if there is a remote region of our State
where there is a hospital facility largely supported by
public funds, prohibiting abortions. She therefore does not
believe the resolution to be constitutionally sound and
could be challenged. It was suggested the term "public or
private health facility" be removed so that it would only
apply to a person. That would create a different outcome.
Senator Phillips asked if the same argument was not overly
broad for our right to privacy? Ms. Bomengen said the
right to privacy was made in broad terms because it was
intended to apply to many specific personal situations.
This resolution, however, identified a specific situation.
But in specific terms did not necessarily define them
adequately to make them easily applicable. Senator Phillips
said it sounded as if she were against this resolution based
on her testimony. He felt her description of "overly broad"
as opposed to the fact that it was basically o.k. with some
work on it indicated that she was against it.
Tape #118, Side A switched to Side B.)
Ms. Bomengen continued explained her description of "overly
broad" with regards to its potential application to
circumstances in which there is a guaranteed protection.
Perhaps the insertion of "private or public health care
facility" would make the resolution more specific; however
the inclusion of "public health care facility" also made it
unconstitutional in its' effect under the Fourteenth
Amendment of the Federal Constitution.
There followed a brief conversation between Senators Donley
and Phillips.
Senator Adams asked what was discussed when the resolution
was heard in the Judiciary committee. Ms. Bomengen
indicated she was not present and her main concern was that
the resolution did not address the issue of health. She
said she believed the effect may be that constitutionally
protected abortions would be unavailable, which would place
a substantial obstacle in the way of a woman who wishes to
receive those health services. This would cause great
concern in remote areas where there may be only one facility
that can perform the service.
Senator Parnell asked about the protection of an
individual's conscience. One doesn't need to address all
"what ifs". Ms. Bomengen said she did not know if the term
"abortion" was agreed upon widely by everyone as there are
different definitions to be found in other statutory
frameworks. She was not sure it could be said with
certainty just what would be denoted by the term when placed
in a constitutional context. Senator Parnell said the Court
knew what they were talking about in their opinion about a
woman's right to an abortion. He asked that they get now to
the question of the health care facility. Ms. Bomengen said
in the distribution of public funds a state can not set up a
system by which fundamental constitutional rights are
infringed. That has been closely scrutinized as applies to
abortion. She said individual rights of conscience are
recognized, specific provisions that recognize religious
objections and there are legal tests applying to religious
objections.
Senator Phillips MOVED CSSJR 35() "B" version. Senator
Adams OBJECTED. By a roll call vote of 5 yeas (Sharp,
Pearce, Donley, Torgerson, Parnell, Phillips) and 1 nay
(Adams) CSSJR 35(F) "B" version was ADOPTED.
SUE MASON, Esq., Anchorage attorney was invited to join the
committee. She informed the committee many of her clients
were hospitals and that she was involved in the "Valley"
case. She was retained by the Alaska State Hospital and
Nursing Home Association and had submitted an amicus brief
on their behalf in support of Valley Hospital's position in
that case. Since she has been counsel for Providence
Hospital for several years they asked her to speak on the
legal implications of the "Valley" decision that did support
adoption of a constitutional amendment. Her main concerns
were the legal rights of her hospital clients. These
included: Valley Hospital, a private, non-profit
corporation; Providence Hospital, a private, religious
corporation; and hospitals in Kodiak and Seward wherein the
physical facility is owned by a local government
organization but are operated by Providence Hospital. She
did not feel that a religious belief could be used as a
compelling state issue. The situation for religious
hospitals was very unclear and therefore she supported the
passage of the resolution.
Senator Phillips asked about the fundamental right to
abortion and was the right to seek an abortion elsewhere
being denied. Ms. Mason said if there was any problem the
abortion could be sought elsewhere. She agreed with the
comments of Senator Miller and Ms. Oats that this was a
matter of choice. If the resolution is adopted there would
be situations of competing constitutional rights. However,
she said the Courts were used to dealing with conflicting
situations. And the Legislature regularly adopts statutes
that implement and interpret constitutional provisions to
clarify some of the areas of conflicts. In that connection
she referred to SB 348 and said it set up procedures for
people on either side of the issue to exercise their rights
in an orderly fashion.
Senator Phillips indicated that no one was denying a woman's
right to seek an abortion elsewhere and Ms. Mason concurred.
Senator Adams asked if State funds were used for the
construction of Valley Hospital versus no funds for
Providence Hospital. Ms. Mason said that one of the factors
that Court relied upon to find that "Valley" was a quasi-
public hospital was the fact that it had received public
funds and public land to construct the hospital. She did
know that for years Alaska had a revenue sharing statute on
the books wherein revenue sharing funds were available to
hospitals for construction. It would be hard to find a
hospital in Alaska that had not received state or Federal
funds for construction.
Senator Parnell commented on the same and said there would
be no health care facility that would not be quasi-public.
Noting the time and number of testifiers, Co-chair Sharp
indicated he hoped those testifying today had not testified
in the Judiciary committee hearing on this matter.
LIZ DODD, President, Alaska Civil Liberties Union was
invited to join the committee. She wanted to know who did
Senator Miller think was going to sue Providence hospital.
If there was going to be any suit brought ACLU Litigation
would be in the forefront and there was nothing to her
knowledge pending. There were other hospitals one could go
to and seek an abortion. She did agree, however, the
problem would arise in the smaller communities. This was a
technical question and should be carefully considered by the
Legislature but the abortion issues did not belong here.
SJR 35 was the tool of those who make no bones about wanting
to substitute God's law for the State Constitution. She
quoted: "Some things are greater than man's law." It was
chilling to hear guardians of the State Constitution
speaking in this manner. Alaska is a diverse group of
citizens, believers and non-believers, and are ruled by no
law higher than the State Constitution. Government by
religion is tyranny.
PETER NAKAMURA, M.D., Director, Division of Public Health,
Department of Health and Social Services was invited to join
the committee. He took opportunity of the camera and
reminded everyone this was National Public Health Week and
parents and providers should get their children immunized.
He addressed the issue from a health and public health view.
He did not like abortions and suggested support of
prevention programs. However, he noted that if abortions
were eliminated from the State for whatever reasons
individuals would have to go outside to obtain an abortion.
Only those who could afford it would be able to have one.
This would cause an increase in unwanted births, child abuse
and neglect, and an increase in domestic violence. A study
soon to be published shows that those pregnant teenagers
under the age of eighteen experience two-and-a-half times
the physical violence of other women who are pregnant. This
ratio continues even after they have their babies. He
encouraged preservation of access to services for those who
really need it for medical and public health reasons.
Senator Parnell asked how did SJR 35 cut off access to
abortions? Dr. Nakamura said there were only about eighteen
or nineteen hospitals that were not federally operated in
the State. The majority of abortion services are not
provided in hospital but rather in physicians' offices.
However, there are requests for abortions in second and
third trimester and these are the ones that would be cut
off. Senator Parnell reminded Dr. Nakamura that
Providence's current policy was not to provide abortions
other than the case as referenced.
(Tape #118, Side B switched to #339, Side A.)
LISA BLACHER, testifying on her own behalf was invited to
join the committee. She said she opposed the bill. She
said it was a bad idea to change the Constitution by a
public vote.
LARAINE DERR, Alaska Hospital and Nursing Home Association
was invited to join the committee. She said the Hospital
Association supported SJR 35.
(at ease taken at 10:45 a.m.)
Senator Phillips MOVED CSSJR 35(FIN) "B" version. Senator
Adams OJBECTED. By a roll call vote of 5 yeas (Sharp,
Pearce, Donley, Torgerson, Parnell, Phillips) and 1 nay
(Adams) it was REPORTED OUT with individual recommendations
and accompanying fiscal note from the Governor's
Office/Elections in the amount of $3.0.
Co-chair Sharp called SB 345.
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