Legislature(1997 - 1998)
02/16/1998 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SJR 35 - CONST AM: PARTICIPATION IN ABORTION
SENATOR MILLER, sponsor of SJR 35, presented the resolution, saying
it comes out of the Supreme Court decision of November 21, 1997.
This decision struck down a part of the 1970 statute 18.16.010b
and decided quasi-public organizations have to participate in
abortion, regardless of their beliefs, according to SENATOR MILLER.
SENATOR MILLER said historically, a person or hospital was not
required to participate in an abortion, nor could they be held
liable for refusing to do so. SENATOR MILLER stated this was added
to ensure abortion was a truly personal decision and no coercion
was applied. SENATOR MILLER said this constitutional amendment
would restore that delicate balance that was set out in the 1970
law by allowing people to refrain from participating in an
abortion. He emphasized the idea that choice goes both ways.
SENATOR MILLER finds it ironic that the State Supreme Court has
regarded our constitutional right to privacy the right to an
abortion. He recalled conversations with his brother, the primary
author of the right to privacy clause, and said it never had
anything to do with the abortion issue.
CHAIRMAN TAYLOR called the next witness, SISTER KAYE BELCHER who
testified via teleconference from Anchorage.
SISTER BELCHER, the Assistant Administrator for Mission Integration
and Community Services for Providence Hospital, voiced her strong
support for this resolution. She said the Providence Health System
continues to support the right of individuals and organizations to
opt out of services they find objectionable. SISTER BELCHER stated
that they respect the beliefs and conscience of others, and, even
though they make no secret of their own values, they do not seek to
impose their values on others, nor do they want others' values to
be imposed on them. She believes SJR 35 will maintain this kind of
respect.
SISTER BELCHER stated that the Supreme Court case made clear the
necessity for this type of recognition of choice to be added to the
State Constitution. She said without it, the state law is
unconstitutional as it applies to quasi-public hospitals. She added
that the definition of quasi-public hospitals is broad enough to
encompass every hospital in Alaska. SISTER BELCHER said without
this language, the right to choose could be construed as a mandate
to participate in abortion services. She expressed her appreciation
to the sponsor and urged support for the bill.
MR. ROBERT FLINT testified via teleconference from Anchorage. He
represented himself and said he was also authorized to speak on
behalf of Archbishop Francis Hurley in support of SJR 35. He
characterized the bill as a return to the status quo that existed
for 27 years prior to the Supreme Court Decision.
TAPE 98-8, SIDE B
Number 001
MR. FLINT commented this language is the same as in the old statute
because the point cannot be made any better. He said the theory was
that everyone had their choice and no coercion was involved. He
argued that the Supreme Court has changed this and now coercion is
involved. He suggested four reason why the decision is erroneous.
The first reason he suggests is that the Supreme Court took a law
proclaiming a right and turned it into a mandate. Secondly, MR.
FLINT believes the court wrongly interpreted the right to privacy
amendment. Thirdly, MR. FLINT asserted the court downgraded rights
traditionally respected in this country, including moral and
religious beliefs. He said traditionally these rights have been
infringed upon only in strict emergency circumstances. Lastly, MR.
FLINT expressed his feeling that the court has infringed on the
people through the legislature to involve themselves in and make
profound decisions. He cited a recent court decision affirming the
right to assisted suicide which was overturned and said he views
this as a similar situation, in which the people and the
legislature have a right and an obligation to sort this out. He, on
behalf of himself and Archbishop Hurley, urged support of SJR 35.
MR. KEN JACOBUS, an attorney who represented some amicus curiae
legislators in the Valley Hospital case, testified via
teleconference from Anchorage. MR. JACOBUS agreed with the previous
speaker on all points and repeated the idea that the Supreme Court
has turned a right into a weapon. Alaska now has the strongest
abortion rights in the United States and the Supreme Court has
tossed out freedom of religion as well as freedom of conscience,
according to MR. JACOBUS. He feels this resolution should be
enacted in order to balance the interests of the two competing
sides on this issue. He said this will not prevent a woman from
getting an abortion should she choose to do so, and it ensures the
right of the hospital and individual to refuse to participate in an
abortion procedure. He concluded it will protect the freedom of
conscience and religious beliefs of the hospitals and individuals
and is narrowly addressed to the specific problem needing remedy.
He urged its placement on the ballot.
MS. JENNIFER RUDINGER, Executive Director of the Alaska Civil
Liberties Union (ACLU), testified via teleconference from
Anchorage. She stated the mission of her organization is to
preserve and defend individual liberty guaranteed by the Bill of
Rights and the Alaska Constitution. She urged the committee to kill
the bill, saying it is based on myths and misinformation. MS.
RUDINGER said the Valley Hospital case was brought by the ACLU. MS.
RUDINGER enumerated the myths surrounding the Valley Hospital
decision. First myth, the idea that people will be forced to
participate in abortion. She quoted the decision, saying nothing
shall require any member of the medical staff or any other employee
to participate directly in the performance of any abortion
procedure if that person, for reasons of conscience or belief,
objects to doing so. The second myth, according to MS. RUDINGER, is
that Valley Hospital would have to hire staff to perform abortions
if the current staff is unwilling. MS. RUDINGER argued this is not
true and the decision only said the hospital could not have a
policy banning abortion if there were doctors on staff willing to
perform the procedure. Third, MS. RUDINGER said the myth that
hospitals can not assert a religious basis for restricting abortion
is also false, and the Supreme Court has left open the option to
do so, according to MS. RUDINGER's testimony. She urged the
committee to read the Valley Hospital opinion.
SENATOR MILLER said he was mystified by what the previous speaker
was getting at. He explained the amendment says nothing shall
require participation in abortion and echoes many of the points MS.
RUDINGER made, without restricting a woman's ability to get an
abortion. He does not understand her opposition.
MS. RUDINGER replied that the problem with the amendment is
redundancy; the court has already said no one will be required to
participate in an abortion, putting this same wording in the
Constitution is unnecessary. She added that nothing now requires a
hospital to participate in an abortion, only that a public or
quasi-public hospital receiving state funds, which can not or does
not assert a religious basis, can not ban abortion if there are
doctors willing to perform them. She said also hospitals can not
force a doctor to participate in an abortion if the doctor is
unwilling to do so. MS. RUDINGER concluded that a state-funded
hospital can not pass a policy infringing on individual choice of
it's doctors or staff to perform and abortion.
CHAIRMAN TAYLOR asked MS. RUDINGER if a hospital board deciding on
allowable procedures should be able to restrict certain procedures
due to concerns about liability. He asked, for example, if the
board of Wrangell General Hospital should allow a member of their
surgical staff to perform neurosurgery if one doctor wants to do
so. He asked if the Valley Hospital decision would prevent the
board from restricting that physician from performing that type of
surgery.
MS. RUDINGER replied the difference is reproductive choice is a
fundamental right under the U.S. Constitution and the Alaska
Constitution. She said this raises the stakes and means a state-
funded hospital has to show a compelling interest in order to
restrict it, unlike neurosurgery. CHAIRMAN TAYLOR replied that a
patient who would want neurosurgery in Wrangell is likely an
extremist who would die without this surgery. He argued that this
patient has a right to life. CHAIRMAN TAYLOR said the right to
life, liberty and property is fundamental. He hoped the ACLU does
not place the right to privacy above the right to life.
SENATOR PARNELL interjected that CHAIRMAN TAYLOR's analogy also
implicates the right to privacy, saying these are both private
medical choices made by individuals. He asked what the distinction
was.
CHAIRMAN TAYLOR wondered the same thing and asked if MS. RUDINGER
could identify a distinction. MS. RUDINGER replied that in the
Valley hospital case itself the Alaska Supreme Court says there is
a fundamental right to reproductive choice. This is a personal
decision between a woman and her physician and the difference is
there has never been a case establishing a fundamental right to
neurosurgery. Ms. RUDINGER said this has not been necessary since
neurosurgery does not carry the same moral questions as abortion.
She repeated that the ACLU would never say a an individual who has
a conscientious objection to performing an abortion should be
forced to do so. She said no one is forced to do so now and they
can not, by law, be compelled. She concluded that a flat ban can
not be passed in a state-funded hospital nor can the hospital
insist unwilling doctors perform abortions. She repeated these are
all individual choices as set out in the Supreme Court case
regarding Valley Hospital.
CHAIRMAN TAYLOR asked about doctors exercising unlimited individual
choices in the types of procedures they carry out, he thinks this
invades the authority and obligation of the hospital board to
protect the hospital. He did not assume she advocated allowing
incompetent doctors to perform procedures. He further asked, if
this case was so narrow, how it would apply to the state-funded
hospital in Ketchikan run by the Sisters of Saint Joseph of Peace.
JENNIFER RUDINGER replied that the court left that question open.
MS. RUDINGER said Valley Hospital had no religious affiliation and
this was part of the basis of the decision. She said whether or not
another quasi-public hospital might assert a religious exemption
was not decided. She stated it was clear that a private hospital is
not covered under this decision, as they obviously may assert a
religious exemption and can prohibit abortions.
SENATOR MILLER mentioned that brought up the question of an
individual who might want an abortion in Ketchikan, he asked where
the ACLU would stand on this issue, noting they brought the first
suit.
MS. RUDINGER clarified that SENATOR MILLER was referring to a
quasi-public hospital with a religious affiliation. SENATOR MILLER
said that was his understanding and MS. RUDINGER said she would
need to present the question to the ACLU board and review it with
their attorneys and she would get back to him.
MS. DEBORAH JOSLIN testified via teleconference from Delta Junction
to express her support for the resolution. She believes any
hospital has the right to establish their own policy, regardless of
the desires of their staff. She said the hospital would be the
liable party in case of an accident. Ms. JOSLIN suggested that
perhaps HJR 5, the freedom of conscience bill, may cover this issue
better. She said HJR 5 may also cover future issues that arise,
including assisted suicide. She mentioned that she and her husband
are considering opening a Christian day care center and hoped they
could do it without fear of interference.
SENATOR MILLER said he had looked at that resolution which is
currently working it's way through the House. He explained this
bill is tailored specifically to the Valley Hospital case, but he
would follow HJR 5 with interest.
MS. REBECCA BRAUN, representing the Juneau Coalition for Pro-
Choice, opposed SJR 25. MS. BRAUN said the Supreme Court decision
recognized that a woman's right to reproductive choice is
constitutionally protected. She said the decision also found that
lay people, charged with overseeing the fiscal health of the
hospital, cannot restrict that constitutional right for reasons
that have nothing to do with medical practice. She stated this
resolution would change that, allowing a handful of people to make
reproductive choices for their whole community. MS. BRAUN's
organization does not believe hospital board should make decisions
that will limit the options of thousands of women based on their
persona;l value systems. She asserted that a quasi-public hospital
belongs to the community and it's patients. She feels it is
disrespectful for a group of non-medical citizens to overrule the
decision of a woman and her doctor. She suspected that the sponsors
of this resolution are not attempting to protect the rights of
hospital personnel to exercize their personal belief system,
rather, since there is nothing in the Valley Hospital decision to
undermine that, they are attempting to get around a Supreme Court
decision they do not like. MS. BRAUN expressed fear of a
legislature that takes the Constitution so lightly. She predicted
this act will outrage the pro-choice majority of Alaskans, as well
as those who value their liberty. She urged the committee not to
pass the bill.
REBECCA BRAUN added her opinion of the difference between abortion
and neurosurgery in CHAIRMAN TAYLOR's analogy was that in the
former case the doctor would be qualified to perform the procedure,
whereas in the latter they may not be. CHAIRMAN TAYLOR emphasized
that was not what he meant, he was attempting to get at the idea
that hospital boards are charged with limiting liability to the
hospital and this makes smaller hospitals more conservative in the
types of procedures they perform. CHAIRMAN TAYLOR said this is
based on the freedom of choice of those board members attemping to
exercize their judgment on behalf of their community.
CHAIRMAN TAYLOR did not see the religious and moral implications of
the board exercising their freedom of choice on behalf of their
community. MS. BRAUN said the difference is in one case, the
reasons behind restricting a procedure are medical, in the other
they are religious.
CHAIRMAN TAYLOR said he understood her argument that the board
members should not exercise their religious beliefs on the board
but did not feel that fit his analogy. He recalled the ACLU
advocating for the rights of the Nazi Party to march in Illinois
and remarked it takes some courage to stand up for rights and is
sometimes difficult to understand the motivation of advocating
certain rights and disregarding others.
MS. BRAUN restated that no one would be compelled to perform an
abortion and CHAIRMAN TAYLOR asked if they would be compelled to
clean up the room afterwards. He asked where the line would be
drawn and said that is an important question. REBECCA BRAUN agreed.
She went on to say Bartlett Hospital in Juneau is quasi-public and
does not perform abortions, but it also has no policy expressly
prohibiting them.
SENATOR PARNELL asked if Providence Hospital in Anchorage would be
considered a quasi-public hospital. MS. BRAUN was unsure.
SENATOR MILLER remarked that there are three criteria for
determining a public or quasi-public hospital. The first is that
the hospital participate in the certificate of deed program. The
second requires the hospital receive construction funds, land, or
operating funds from state and federal governments. The third
criterion says a portion of operating funds must come from
government sources. SENATOR MILLER voiced his belief that
Providence fits at least two, if not all, of these criteria.
MR. CLIFTON ORME, Chief Executive Officer of Valley Hospital,
testified via teleconference from Mat-Su. He declared his support
for SJR 35. He read a letter from the Valley Hospital Board to it's
association members which explained the situation and characterized
the federal law as a negative right to abortion, meaning states
can not out law abortion, not mandating hospitals to perform
abortions. MR. ORME said his organization is making every effort
to comply with the state's permanent injunction while at the same
time attempting to protect the beliefs of their employees. MR. ORME
informed the committee that the hospital board is meeting tonight
and will likely endorse a resolution in support of this
legislation.
MR. ORME disagreed with the comments of MS. RUDINGER and restated
the question of direct versus indirect participation in an
abortion. He professed there is a real possibility of staffing
problems under this decision. He also noted that this decision
applies to all facilities that receive government funding, not just
quasi-public ones.
In response to REBECCA BRAUN, MR. ORME said the hospital is set up
in a co-op format, where the members are elected by the community.
He contended that these members do not operate in a vacuum, but
represent the voice of the community. He concluded by expressing
his support for this measure.
SENATOR PARNELL asked if the word hospital would be too limiting if
there are other facilities that receive state funding and provide
health care services. The committee and participants discussed the
question of whether or not hospital would be the appropriate
wording and MR. JACOBUS suggested they might replace "hospital"
with "health care facility". CHAIRMAN TAYLOR said he and SENATOR
PARNELL were concerned with the wording as it does have
significance.
SENATOR PEARCE asked the ACLU representative about living wills and
Do Not Resuscitate Orders (DNRs). She quoted Alaska Statute
18.12.050, saying if the attending physician is unwilling to
comply, that doctor must pull out as the attending physician; and
if the policy of the health care facility precludes compliance the
facility must take steps to explain the policy to the patient and
their family and take the necessary steps to transfer the patient
to a facility that will comply. SENATOR PEARCE asked if the ACLU
supported this living will/Do Not Resuscitate Order amendment in
1994. JENNIFER RUDINGER was not certain and told SENATOR PEARCE she
would find out and get back to her.
TAPE 98-9, SIDE A
Number 001
SENATOR PARNELL moved an amendment to delete "hospital" on page 1
line 6 and replace it with "health care facility". Without
objection, the amendment was adopted. SENATOR PEARCE noted the term
"health care facility" is defined in law.
SENATOR MILLER moved SJR 35 pass from committee with individual
recommendations. Without objection, it was so ordered. With no
further business to come before the committee, the judiciary
committee was adjourned.
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