HOUSE JOINT RESOLUTION NO. 5 Proposing an amendment to the Constitution of the State of Alaska relating to freedom of conscience. DR. ARTHUR E. HIPPLER, (TESTIFIED VIA TELECONFERENCE), EXECUTIVE DIRECTOR, ALASKA RIGHT TO LIFE, MAT-SU, spoke in support to HJR 5. He noted that the concern of his organization was direct, in that any person should not be forced to perform or assist at abortions if they have a moral objection to it. He advised that this is not an unrealistic fear and stressed that there appears to be an assurance by the Court by implication in the Valley Hospital case, that the court could impose judicial tyranny over people. Mr. Hippler continued, at the core of civil liberties is the respect for conscience. If conscience can be compelled, then any other assumed liberty would be a joke and meaningless. If one can only act on other's beliefs, one would be continually compelled to act against their conscience; then we would no longer live in a society with a pretense of freedom. He claimed that the current judicial system, as it is now implemented would impose it's own liberal, anti-religious and pro-death ideas regardless of what elected State officials do, unless, there exists a patent constitutional provision limiting this arbitrary power. Mr. Hippler ascertained that constitutional "chains" not infringe upon the conscience of the citizens as mandated by the Courts. He strongly urged passage of HJR 5. SARAH FELIX, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, advised that both the Civil and Criminal Division of the Department of Law continue to have significant concerns with HJR 5. She noted that the Department has had the opportunity to review materials from HJR 5, specifically, the article Protecting the Rights of Conscience of Health Care Providers published in 1993. Ms. Felix advised that a Westlaw search revealed that the article had not been cited in any legal cases. The article did list numerous cases which resulted from litigation over "rights of conscience" laws. Examples of those include lawsuits challenging state laws mandating autopsies, blood transfusions, lawsuits claimed by hospital staff claiming wrongful termination of conscientious objection to abortion, patient lawsuits against hospitals for failure to advise regarding the availability of "morning after" pills and multiple other lawsuits between patients and hospitals. Ms. Felix pointed out that the Department had reviewed other state's charters which have "freedom of conscience" provisions. It appears that the only state in which "freedom of conscience" is a stand-alone provision is in New Hampshire (NH). The New Hampshire Bill of Rights, Article their very nature unalienable, because no equivalent can be given or received from them. Of this kind are the Rights of Conscience". She continued, however, the NH constitution also contains a provision which limits the freedom of conscience. The Bill or Rights, Article #3 states that "When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and without such an equivalent, the surrender is void". Ms. Felix stated that caselaw in the NH interpretation, the freedom of conscience provision has limited the exercise of the right by reference to Article #3. At this time, there is no provision in the Alaska Constitution to limit the exercise of freedom of conscience. She suggested that anarchy would result with the insertion of that language into the Constitution. Ms. Felix spoke to Amendment #2. [Copy on File]. The Department maintains the concern of limiting an existing constitutional right. Limiting the right to privacy could have unintended consequences. Under the proposed amendment, a business owner could not exercise the right of privacy so as to prohibit a disgruntled employee from disclosing business records. The proposed amendment has no limitations on actions and reliance on a person's freedom of conscience. Ms. Felix emphasized that the Department has no idea what "freedom of conscience" would cover. She asked if it would cover any individual opinion or belief. The proposed language is very broad and vague and it is unknown how it could limit the other's persons' right to privacy. Representative Kelly understood that the right to privacy would not cover "personal business records". He understood that concern had been covered in the U.S. Constitution under the 1st Amendment. Ms. Felix replied that this was covered by both, although, the Alaska Constitution gives broader rights to protection. Representative Kelly observed that the right to privacy has been taken out of bounds. Representative Martin noted that the right of democracy should be the right of freedom of conscience. He took offense that the Department of Law would indicate that the proposed legislation could create anarchy. He pointed out that the courts ruled against the freedom of conscience in the Valley Hospital case. They stated that the freedom of conscience was only a statutory right, not a constitutional right. Ms. Felix cited the NH case, which stated that if there were not a check on the freedom of conscience, such as the check contained in the NH Constitution, Article #3, there would result anarchy. She advised that the NH case must be referenced because it is the only state which has the freedom of conscience in the Bill of Rights. All other states have it tied to the freedom of religion. Representative Martin stated that Amendment #1 would provide language, which Justice Sandra Day O'Connor suggests would curtail the "freedom of conscience". He wanted to see the freedom of conscience and the freedom of religion in the same constitutional amendment. Representative Martin stressed that the freedom of conscience is the most important right that a person could have and that freedom of religion is dependent on freedom of conscience. Representative Grussendorf indicated that the proposed language is complicated. The right to privacy is implied in the first amendment by the "search and seizure" aspects of what a government can do to a person under their jurisdiction. He pointed out that the proposed amendment only addresses one aspect of privacy, the reproductive right. Privacy goes beyond that issue. Representative Grussendorf stressed that the right to privacy can only go as far and as long as it can without interfering with the rights of others. The right of privacy is a very broad situation. He pointed out that the right to conscience provision in the New Hampshire charter resulted during the times of witch-hunts, and then establishing the right of religious freedom. (Tape Change HFC 98- 83, Side 2). Co-Chair Therriault advised that the issue at hand is broader than the issue addressed by the Valley Hospital court case. Representative Grussendorf pointed out that language contained in Amendment #2 was basically the same language ruled by the court. That decision was made from statute and other provisions of the constitution without attaching it to privacy. Co-Chair Therriault asked if the Department thought that the language of Amendment #1 was covered in the wording of Amendment #2. Ms. Felix stated that the amendments were similar. Co-Chair Therriault believed that Amendment #2 was language which tempered an individual's right to freedom of conscience with their right to privacy. He commented that he tried to create language in which the right to privacy would check the freedom of conscience. Ms. Felix replied that Amendment #1 was narrowly focused and was a "stand alone" freedom of conscience amendment which focused on health care facilities. She agreed that the language of Amendment #2 was broader and could cover most things in regard to the right to privacy. Representative J. Davies understood that a "right" created a situation which prevents a person from doing wrongful things to other people. He recommended that the way to balance would be in providing two affirmative "rights"; then the Courts would determine the decision. He believed that the right to privacy should protect a person. Representative Martin commented that the right of conscience at this time is so narrow that it only pertains to abortions. He stressed that the freedom of conscience is the most important aspect to the freedom of liberty. The Courts have indicated that only the direct participants (i.e. doctors) could make the choice not to be present at a hospital procedure. Consequently, the subordinate positions at the hospital would be required to be present at any procedure as long as the doctor authorized it. Representative Martin felt that the Court's have forced a division between people with relationship to their freedom of conscience. Representative Kelly remarked that the right to privacy was not language used in the original constitution and that it has since become problematic when used to confer benefits. Representative Kelly referenced various case laws. Representative Grussendorf pointed out that such cases resulted because there had been "no compelling" evidences or interests to differ. Representative Kelly argued that the right to privacy was taking the State in very broad "leaps" across the legal "landscape". He suggested that currently, the Courts are using the right to privacy in an inappropriate manner and that it should be more narrowly focused. Representative Foster questioned how the legislation might affect "conscientious objectors" during a national emergency. Ms. Felix replied that currently, there exists a body of law addressing conscientious objection to the draft. In the event of a national crisis, it would be addressed in conjunction with that law. Representative Foster referenced Amendment #1, Section (a)2. He asked if that language would allow for a person or facility, if they conscientiously objected, from participating in a national disaster. Ms. Felix stated that would be wide open. Representative Foster voiced concern where the line of an objection would "end". He acknowledged the complicated subject of the legislation. Co-Chair Therriault asked if under the language of Amendment job linked to the privilege of another person's right to privacy, would they be exempt from performing their job under the right of conscience. Ms. Felix acknowledged that was correct, which created a huge concern for the Department of Law. Co-Chair Therriault questioned if that could be linked to another individual's right to privacy. He understood that if a person were employed to do a job, they would have to do carry out that job or leave the employment. Ms. Felix emphasized that could continue to occur when the freedom of conscience laws exists. Co-Chair Therriault believed that would be true if the language for freedom of conscience were wide open, although, he believed that Amendment #2 was not that broad. Discussion followed regarding the difference between the right to privacy and the responsibilities within an employment contract. Representative Grussendorf agreed that Amendment #2 was dangerously broad. Representative Martin noted that Amendment #1 had been offered in consideration of member's concerns expressed during a previous meeting. Representative J. Davies spoke to the right to privacy. He pointed out that a right protects individuals. The motivation for the right to privacy began with a concern of "big brother" in the development of telecommunications. The concern resulted from the fear of abuse of computer data base information and/or unreasonable search and seizure. Representative J. Davies cautioned that it is important to be careful when adjusting language which could affect those types of situations. He advised that the right to privacy predominately protects an individual whose right to be free in their own pursuit of happiness and undisturbed by the government. Representative J. Davies noted that the Courts continue to provide a balancing act between the individual's rights and the State's interest in regulating those rights. (Tape Change HFC 98- 84, Side 1). Representative Martin MOVED to adopt Amendment #1 for the purpose of discussion. He reiterated that Amendment #1 was being offered, although, he preferred for the Committee to pass the bill as it moved from the House Judiciary Committee (JUD). He stressed that he wanted to place the freedom of conscience above or equal to the right to privacy. Representative Foster applauded the work of Representative Martin, although, questioned who would protect the right of the minority group. Co-Chair Therriault pointed out that the individual would be protected in Section (a)1 of the amendment and an institution would be protected under Section (a)2. Representative J. Davies OBJECTED to adoption of Amendment provide limitations to employment contracts. Representative Martin replied that there exist many cases in which the employee has been forced to do something against their conscious. Representative J. Davies ascertained that the discussion is not debating the "doing" of something unlawful, but rather something against a person's conscience. He asked how this legislation would apply to that circumstance. Representative J. Davies WITHDREW his OBJECTION to adopting Amendment #1. He commented that the amendment as well as the entire bill was misdirected. Amendment #1 was adopted. Co-Chair Therriault WITHDREW Amendment #2. There being NO OBJECTION, it was withdrawn. Representative Mulder MOVED to report CS HJR 5 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. Representative J. Davies OBJECTED. He stated that he understood that since Amendment #1 had just been offered, the Committee would be given time to consider the impact of it. He requested that an opportunity to amend the legislation be provided. Representative Mulder WITHDREW the MOTION to move the bill from Committee. Representative J. Davies MOVED to AMEND Amendment #1 by deleting "a public or" to Section #a(2). Representative Martin OBJECTED. Representative J. Davies advised that if "public" was not deleted, restriction of a lawful service would create an unconstitutional situation. Representative Martin emphasized that language was the heart of the entire act and had been added as a protection for public hospitals. A roll call vote was taken on the motion. IN FAVOR: J. Davies, Grussendorf, Foster OPPOSED: Kohring, Martin, Mulder, G. Davis, Therriault Representatives Kelly, Moses, and Hanley were not present for the vote. The MOTION FAILED (3-5). Representative Mulder MOVED to report CS HJR 5 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CS HJR 5 (FIN) was reported out of Committee with a "do pass" recommendation and with a fiscal note by the Office of the Governor dated 1/30/98.