Legislature(1997 - 1998)
04/07/1998 03:40 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 348 - RIGHTS OF CONSCIENCE PROTECTION
CHAIRMAN GREEN introduced SB 348, sponsored by the State Affairs
Committee, as the first order of business. She requested that
Senator Ward make a brief presentation on the legislation.
SENATOR WARD explained SB 348 will put into written form exactly
what most people think is already their right under the
Constitution. There are certain procedures throughout time that
people of authority have pressured health care providers to
participate in regardless of what their conscience may say. He
said society should not be imposing rules and laws on people
against what their true beliefs are, and SB 348 will put into
effect the rights of conscience protection that these people
thought they had all along.
SENATOR MILLER directed attention to a proposed committee
substitute.
SENATOR WARD moved the adoption of CSSB 348(STA), version "B," and
hearing no objection, CHAIRMAN GREEN stated it was adopted as a
working document.
Number 070
SENATOR DUNCAN asked if there is a constitutional amendment that
goes along with the legislation. SENATOR MILLER responded that he
introduced SJR 35, which is in Senate Finance, and it would
essentially overturn the Valley Hospital decision, however, he
wasn't sure if the two pieces of legislation would move through the
process together. He also pointed out that there is a difference
in the bill and the resolution. The bill deals more with the
individual and the constitutional amendment deals more with the
institutions.
Number 106
DR. PETER NAKAMURA, Director, Division of Public Health, Department
of Health and Social Services, stated that he had not yet seen the
committee substitute. He spoke to the benefits of a program that
mandates immunizations for entry into school. However, he said
there are physicians who don't believe in immunizations, and the
fact that the people who don't have the resources to gain these
services are the ones who are hurt. Every time another barrier to
access to a positive health service is put in place, it is the poor
who suffer the consequences. Dr. Nakamura said in terms of the
bill, as he reads it, as a public health professional and as a
physician, he would strongly object to another barrier to access to
any service that is critical to the poor who would have no other
alternatives.
Number 180
SENATOR MILLER reminded Dr. Nakamura that the bill addresses
abortions, not other public health services.
DR. NAKAMURA said if the bill specifically refers to abortions, and
if the facility is built with federal dollars or if federal dollars
are paying for the maintenance of that facility, it seems that the
broad range of services should be available. If an individual, by
conscience, feels they don't want to participate, then the facility
should provide some options to make sure that those services would
still be available. He added that if the facility were built with
private funds, then he could see where they would have that right.
SENATOR MILLER asked Dr. Nakamura, as a hypothetical case, what
happens if a young lady in a remote village wants an abortion, but
there is only one doctor in town and he does not believe in
performing abortions and she cannot afford access to another
doctor. DR. NAKAMURA responded that if state or federal funds are
supporting that individual's practice, he would have strong
objection to that. He also clarified that he would not expect an
individual if he felt strongly against an abortion to perform it,
but he would expect that individual to make the information
available to assist the person seeking the abortion.
DR. NAKAMURA said SB 348 eliminates access to abortions in the
state of Alaska which then goes back to those of us who can afford
to go out and access these services elsewhere, but there are those
poor who might have an equally valid reason for wanting that
service but will not have access to it any more.
SENATOR MILLER commented that he thinks the testimony shows reason
why this bill is needed if the state is willing to enforce their
moral convictions upon an individual who may have a different moral
conviction.
Number 250
KRISTEN BOMENGEN, Assistant Attorney General, Human Services
Section, Department of Law, said that although she was not able to
do an in-depth analysis of the committee substitute, she thinks it
is an excellent substitute for the original bill, which has a great
many references to broad moral convictions that would have caused
no end of problems to health facilities in their hiring practices
and in the delivery of services. However, there still are some
legal problems that remain with the committee substitute.
Ms. Bomengen referenced AS 14.17.040 which addresses the conscience
of an institution. She said because the health care institution
definition includes public institutions, this statute would pretend
to grant a public facility a right that actually violates the
constitutional protections that are articulated in the Valley
Hospital case. That case very specifically said that a statute is
not adequate to overrule a constitutionally protected right.
Number 280
SENATOR MACKIE asked if the constitutional amendment is needed.
SENATOR MILLER clarified that the constitutional amendment relates
to the institutions whereas SB 348 relates to institutional rights,
and it is his opinion that the constitutional amendment would need
to pass in order for this legislation to be valid.
Number 295
MS. BOMENGEN related that there is a federal requirement that all
institutions that receive Medicaid or Medicare funds have to have
a policy that informs admitted patients of their right to advance
directives and that particular institution's policy regarding
advance directives. Consequently, an institution may not wish to
adopt a policy that will allow them to carry out an advance
directive, but nonetheless, they are required by federal law to
inform the person of their rights and not portray a partial picture
to any patient that is being admitted. If there were some
objection lodged by a board to even discussing this matter, which
might be construed to be intended to end the life of a patient and
that board were to assert that as their policy, then the state
certification board would have to decertify the institution for
Medicaid or Medicare payments. She said this statute still
provides a protection that says that a state agency cannot
discriminate against an institution that would choose to do so, so
it presents a real conflict for the agency that she believes could
actually endanger the entire Medicaid funding for the state. The
state is required to be able to assure in the state Medicaid plan
that this advance directive information is provided to all patients
when they are admitted.
Number 321
SENATOR MACKIE asked Ms. Bomengen if she could explain what the
advance directive information means and whether or not that
actually applies to an abortion or the ending of a life. MS.
BOMENGEN responded that she was speaking to living wills, do not
resuscitate orders, organ donations, etc., that go to the kind of
advance directives that an individual can choose to make. She also
clarified that Medicaid does not require that institutions perform
a service, but it requires that they provide greatly detailed
information to individuals who are admitted to their facilities.
She suggested that, at the minimum, some sort of definition of the
terminology in the bill would be necessary to administer this.
CHAIRMAN GREEN directed attention to the "posted notice" language
on page 3, line 24, but MS. BOMENGEN advised that the language is
not adequate to meet the terms of the Medicaid and Medicare federal
guidelines.
Number 365
SENATOR MACKIE asked Ms. Bomengen if it was her opinion that this
legislation does allow institutions to not provide the information.
MS. BOMENGEN answered that she believes it could be interpreted to
be applied that way. SENATOR MACKIE said he thinks that is an
important point that needs to be clarified so as not to jeopardize
Medicaid funding.
SENATOR WARD asked if Ms. Bomengen was saying that the posted
notice with all of the facts on it is not giving them notice. MS.
BOMENGEN reiterated that it does not meet the terms of the Medicaid
requirements to provide written information to each individual
concerning their rights, and she would stand on her interpretation
that this really requires more than posting a sign in a corner or
even in front of the admission desk that someone may or may not see
regarding the hospital's policy on advance directives.
Number 410
CHAIRMAN GREEN asked if the point was that the person must be told
that they can have a living will and that there are advance
directive possibilities out there, and is that also followed by the
fact that the institution has to provide that service. MS.
BOMENGEN replied that the institution would not have to implement
a living will, however, one cannot discriminate against an
individual in the provision of other care based on their election
to have a living will.
Number 428
SENATOR MILLER questioned if two facilities are providing the
necessary information, but a third facility elects not to for
whatever reason, would that mean that all three facilities would
lose the federal funding. MS. BOMENGEN responded that on its face
it would not necessarily mean that all the hospitals would lose
funding; however, there is provision in this law that poses a
problem for the state agency in its representations in the Medicaid
state plan to the Federal Health Care Financing Agency. The state
has to assure the federal agency that it is complying with each of
its requirements, and if one hospital was not meeting these terms,
the state would be deemed to be out of compliance with the state's
Medicaid plan.
Number 452
SENATOR MILLER asked Ms. Bomengen if it would help to delete the
words "counsel and advise" wherever they appear in the bill. MS.
BOMENGEN answered that it may be one of the ways, or a definition
may be one of the ways, some specific items in the exceptions list
may be one of the ways, but she hasn't looked to see whether this
would adequately do it.
Number 465
SENATOR MACKIE asked Ms. Bomengen if she is willing to provide the
committee with an opinion or a recommendation as to what it would
take to assure that Medicaid funding would not be lost. MS.
BOMENGEN replied that the three options she outlined are there to
be done, but she doesn't know which one may be the best.
SENATOR MACKIE asked how it works if a hospital like Providence
Hospital does not wish to perform abortions, for obvious reasons,
but a doctor determines in the course of treatment to a woman that
an abortion may be one option that may be necessary to protect the
life of that woman. He questioned if this legislation gives them
an avenue to not suggest that is one of the options that they would
need to pursue. He thinks those kinds of issues need to be really
well thought out, not just whether or not some Medicaid funding is
going to be lost.
SENATOR MILLER said the first part of the bill addresses the
individual doctor that does not want to perform the service, but in
Senator Mackie's hypothetical case, it sounds like a doctor that is
willing to provide that information. He said his concern is
mandating that an institution or an individual provide a service
that violates religious or moral convictions. He added that, in
his opinion, as a result of the Valley Hospital case, there are
going to be a number of cases filed, and the next one that is going
to be filed is against Providence Hospital.
Number 515
SENATOR MACKIE commented he has a certain appreciation for what he
thinks is the intent of the legislation, but he would have a
problem with not providing pertinent medical information to a
patient or pertinent information whether it is the living will
aspect or abortion services.
SENATOR MILLER agreed that as long as it is well balanced on both
sides of the issue, letting the person make the choice.
Number 522
MS. BOMENGEN said she wasn't certain that it is appropriate to
interpret current law to say that individuals are forced into
performing abortions under AS 18.16.010, because there is still
part of that statute that says that a person may not be required to
perform an abortion, which has not be challenged at this point and
still stands as good law. Also, with regard to end of life issues,
the statutes which address those concerns do allow a health care
provider to not pull the plug or to not pull out the tube. So far
as individuals are concerned, it his her interpretation of the law
that they are protected. However, she cautioned that when writing
this kind of legislation, care has to taken as to what people can
end up evoking as their reason for not informing people of the full
array of health care solutions that may be legitimately available
to them. Ms. Bomengen also said there is a legal question as to
how the Valley Hospital case would apply to Providence Hospital,
and it not yet clear just how the three-pronged test developed in
the Valley decision applies.
Number 577
CHAIRMAN GREEN questioned if a private hospital can prohibit
abortions in their facilities, as well as the number of private
hospitals in the state. MS. BOMENGEN acknowledged that private
hospitals can prohibit abortions, but she didn't know the number of
private hospitals in the state.
TAPE 98-16, SIDE B
Number 584
JANET OATES, Director of Marketing and Government Relations for
Providence Health System in Alaska, expressed support for CSSB
348(STA) because accompanied by Senator Miller's proposed
constitutional amendment it would resolve the issue raised by the
Valley Hospital Supreme Court ruling. Providence Health System
sees this as an issue of choice; the ability or the right for
Providence or other hospitals to choose not to do abortions or
other procedures in their facilities that don't conform to their
religious and ethical values.
Ms. Oates said the attorneys that represent Providence Health
System feel that the Supreme Court decision identified a need for
a conscience clause or something similar to that in the Alaska
Constitution. Without such language, the court found that the
state law, which currently allows hospitals freedom of choice, is
unconstitutional as applied to quasi-public hospitals; however, the
definition given a quasi-public hospital is so broad that it could
apply to every single hospital in the state of Alaska.
In response to Senator Mackie's earlier inquiry about what happens
at Providence Hospital when the life of a mother is at risk, Ms.
Oates said that's the time when their ethics committee is called in
and those very tough decisions are made when a therapeutic abortion
is necessary. She also noted that advance directives are very
helpful for their ethicists and their clergy as they are dealing
with families at the end of a life.
Number 525
SENATOR DUNCAN asked Ms. Oates what she meant by "other procedures"
at the beginning of her testimony. MS. OATES responded that the
language applied more to some of the earlier variations of the
constitutional amendment she had testified on, and she corrected
her statement to say "the right to choose not to do abortions or
end the life of an individual." She also clarified to Senator
Duncan that it is her interpretation that this applies to elective
abortions only.
Number 491
DR. GERALD PHILLIPS, testifying from the Mat-So LIO in support of
CSSB 348(STA), said he is a radiologist, specifically, and he does
diagnostic imaging. One of the services provided is ultrasound,
which is very good for evaluation of fetal development. Both the
radiologist and the ultrasound technician is involved in the
performance and the interpretation of the ultrasound exam, and at
times they become involved with pre-abortion evaluations where they
are asked for the size and dates in those planning an abortion. He
said you can feel and often know at times that the information
being given by dating the fetus by the ultrasound below a certain
age is like signing its death warrant. Specifically, below a
certain age the fetus is smaller and is therefore easier to abort
and is less traumatic to the mother. He said in these situations,
the radiologist and the technician feel like accomplices.
Dr. Phillips related another situation which he said occurs
infrequently, but is more grave. On three occasions, he and one of
his technicians have been called in to do ultrasounds on patients
who were pregnant and were bleeding. However, unknown to them was
that the ladies in question were bleeding because they were part
way through abortions and they didn't have all the pieces accounted
for. He said his technician and himself felt taken in and outright
lied to, and it is a haunting feeling to be part of something that
results in the elimination of life.
Dr. Phillips said because of these situations, he, the hospital and
his community have lost at least two excellent ultrasound
technicians.
Number 452
DR. WILLIAM RESINGER, testifying from the Mat-Su LIO, said he is
radiologist at Valley Hospital, and when he graduated from medical
school in 1969 he took the Hippocratic Oath. He pointed out that
the Hippocratic Oath very specifically forbids euthanasia and
abortion. It is a 2,400-year-old tradition, and it has nothing to
do with state money or federal money or anything else except a
tradition in medicine to do the highest and best for their
patients. He said it is not the only reason that he does not
support abortion, but it is a strong one.
Dr. Resinger said it has been said that you cannot legislate
morality, but he believes you cannot legislate without morality,
and just because something is legal does not necessarily mean it is
moral. He believes that there are laws of God that are higher than
laws of men. He said this issue comes to some very basic values,
that a physician has a right to have conscience, follow moral
values and abide by his Hippocratic Oath.
Dr. Resinger voiced his support for CSSB 348(STA) and the
constitutional amendment.
Number 426
CLIFF ORME, the Administrator of Valley Hospital testifying from
the Mat-Su LIO, said he concurred with the testimony given by Ms.
Oates, Dr. Phillips and Dr. Resinger. He said they are hopeful
that this legislation will offer more choice to the providers who
choose not to be a part of controversial procedures.
Mr. Orme said there has been discussion on the impact of either the
constitutional amendment or this bill being to eliminate the
service being provided in Alaska and discriminating against the
poor, in particular, who cannot afford to leave the state to
receive the procedure. However, he pointed out that the hospital
is not the only place to receive an abortion. Most abortions are
performed during the first trimester, out of the hospital setting,
so to say that an abortion would not be available should something
like this bill pass would be incorrect.
Number 402
DIANA BUFFINGTON, the Republican District Chairman in Kodiak,
testifying from Kodiak in support of CSSB 348(STA), spoke to a
recent stay at Providence Hospital in Anchorage. When she was
admitted to the hospital she was asked if she had a living will in
place, and she has no doubt that her beliefs and her moral
convictions of not being kept on life support would be honored by
her hospital. She does not believe that the legislation has
anything to do with a living will or with therapeutic abortion.
The legislation is to prevent doctors or hospitals or clinics who
do not agree with the abortion issue, who do not agree with the
euthanasia issue, that they would have the right to not counsel or
advise or recommend those procedures simply because it is an
effective way to end a pregnancy or to end a life. She does not
believe that doctors should be kept from performing procedures they
feel are safe and necessary to the commitment of life, and neither
should an institution be forced to counsel and advise when it
violates the moral or religious convictions of its board of
directors, administrators, or shareholders.
Number 353
There being no further testimony on CSSB 348(STA), CHAIRMAN GREEN
stated the legislation would be held in committee until the
following week for further review and possible changes.
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