SENATE JOINT RESOLUTION NO. 35 Proposing an amendment to the Constitution of the State of Alaska relating to participation in an abortion. SUE MASON, ATTORNEY REPRESENTING HOSPITALS, ANCHORAGE explained that she filed a brief on behalf of the Alaska State Hospital and Nursing Home Association to support the position of Valley Hospital. She expressed concern for the legal rights of hospital clients, which are both religious and nonreligious hospitals. She maintained that under the Valley Hospital case every hospital in Alaska would be considered a quasi-public hospital regardless of whether or not the hospital is a religious facility or owned by a private organization. She expressed concern that the Court does not recognize exceptions for religious hospitals. She read from the Valley Hospital decision regarding monopoly privileges. The Court concluded that monopoly privileges cannot be used by the Valley Hospital Association to limit access to lawful medical procedures for moral or religious reasons. She noted that the Court concluded that the right to abortion is a fundamental right under the Alaska Constitution. The Court noted that since the right is fundamental it cannot be interfered with unless the interference is justified by a compelling state interest. A footnote indicates that religious views can never be found to be a compelling state interest. The Court states in its footnote: "Nothing said in this opinion should be taken to suggest that a quasi-public hospital could have a policy based on the religious tenets of its sponsors which could be a compelling state interest." She stressed that the Courts decisions raises serious concerns on the part of religious hospitals. She maintained that the constitutional amendment was necessary to extend protections to religious organizations and others that object to abortion on ethical or moral grounds, to clarify the law, and to grant a right of choice to those opposed to abortion. She maintained that the legislation would restore the law to the status quo established in 1970 with the Conscience Clause. CATHY GIRARD, ANCHORAGE spoke against SJR 35. She maintained that women should not be limited by the moral values of others. STEVE WILLIAMS, ATTORNEY FOR THE PLAINTIFFS, ANCHORAGE stressed that the question is whether those with views against abortion can be allowed to impose their views on women. He maintained that the Valley Hospital ruling protects individual conscience in respect to abortion. No one would be required to participate in an abortion. Individual rights of conscience would be respected. All that is required of those at the hospital is to respect each woman's constitutional right to make her own decision. He asserted that the ruling would not require Providence Hospital to participate in abortions. Mr. Williams suggested that the legislation should be narrowed to apply to hospitals owned by religious organizations that have a religious belief that opposes abortion. He expressed concern that the legislation would turn assembly and hospital board elections into political debates concerning abortion. He maintained that the legislation would require Alaskan women to go out of the State to obtain legal medical care. ROBIN SMITH, LEAGUE OF WOMEN VOTERS, ANCHORAGE spoke in opposition of the legislation. She stressed that the Alaska Constitution is considered a model constitution. She maintained that the legislation would effectively eliminate second trimester abortions in Alaska. She emphasized that rape victims may have trouble coming forth in the first trimester of a pregnancy. She maintained that the legislation would prevent women from obtaining needed medical care. She questioned if women should be forced to bear children with major birth defects. She estimated that the legislation would result in litigation. PAULINE UTTER, ANCHORAGE spoke in opposition to the legislation. She related a telephone conversation with a woman who was pregnant with a fetus that had no limbs or stomach lining. The woman did not have any money and already had three children. She also received a phone call for assistance from a woman that had three children and stated that she could not afford another child. She emphasized that it is a legal medical procedure. BETH CARLSON, EAGLE RIVER spoke in opposition of SJR 35. She maintained that the legislation is an inappropriate response to a Court case. She maintained that the Court decision does not require that an individual opposed to abortion participate in an abortion. The Court ruled that a publicly funded hospital cannot as a policy matter, restrict acceptable and appropriate medical care. No hospitals would be required to hire additional staff. She emphasized that the decision is the right of the parents. RICHARD KENMITZ, UNITARIAN UNIVERSITY, FAIRBANKS spoke in opposition to SJR 35. He noted that the Unitarian General Assembly believes that abortion is a private and religious choice. The Unitarian General Assembly supports the right to abortion and birth control. He emphasized that the debate on abortion should not be held in hospital boardrooms. Representative Grussendorf observed that a person cannot be forced to participate in an abortion. Representative Grussendorf questioned if the Court indicated that a hospital board could hire based on an individual's willingness to perform an abortion. Mr. Williams stated that the issue was not raised in the case. He observed that it would discriminatory to hire based on an individual's stance on abortion. SJR 35 was HELD in Committee for further consideration. SENATE JOINT RESOLUTION NO. 35 Proposing an amendment to the Constitution of the State of Alaska relating to participation in an abortion. SENATOR MIKE MILLER, SPONSOR spoke in support of SJR 35. He reviewed AS 18.16.010(b): "Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section." He noted that this statute was the "law of the land" for 27 years. He maintained that the Alaska Supreme Court's Valley Hospital Association decision essentially struck down that law. He noted that the Court used a three-prong test in determining that Valley Hospital is a quasi-public institution. All hospitals with over $1 million dollars in expenditures must have a certificate of need. Secondly, a hospital would be a quasi- public institution if public funds or lands were used in its construction. All hospitals in Alaska utilized some public funding. The third test was that 25 percent of their funding had to come from public dollars, Medicaid or Medicare. All hospitals in Alaska meet the three requirements and are therefore quasi-public institutions. A quasi-public institution can only limit elective abortions for a compelling state interest. He observed that the Court stated in its footnote that a religious affiliation is not a compelling state interest. He emphasized that the legislation would return the status quo. He maintained that the debate on abortion has occurred in hospital boardrooms for the past 27 years. He observed that 97 percent of abortions are performed in clinics. He noted that all Alaskan hospitals offer abortions to save the life of the mother and all but Providence Hospital offer abortions in the case of rape and incest. Representative Davies disagreed that the legislation would only apply to elective abortions. Senator Miller acknowledged that the constitutional amendment would not distinguish between elective and other abortions. He emphasized that the amendment does not prevent abortions. (Tape Change, HFC 98 - 130, Side 2) Senator Miller argued that the amendment would not change current medical practices regarding abortions for the welfare of the mother. Representative Davies questioned why a facility that receives public funds should be allowed to refuse a legal medical practice. Senator Miller stressed that all Alaskan hospitals would be quasi-public institutions. He countered that the Congress of the United States prohibits the use of public funds for abortions. Representative Martin expressed support for the legislation. Representative Davies maintained that the purpose of the Court's footnote is to clarify that public institutions cannot use a religious rationale for choosing to offer one procedure or another. CLIFF ORME, EXECUTIVE DIRECTOR, VALLEY HOSPITAL ASSOCITATION, MAT-SU testified in support of the legislation. He maintained that the Association's Board is representative of the community's composition and belief. PETE NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH, DEPARTMENT OF HEALTH AND SOCIAL SERVICES testified in opposition to SJR 35. He noted that most discussions concerning abortion have been based on individual or religious convictions. Most discussions have not centered on the public health impact of proposed actions. He observed that few abortions are performed in hospitals. First trimester abortions performed in hospitals generally occur to protect the health of the mother. There are few second trimester abortions in Alaska. He observed that second trimester abortions generally occur due to significant genetic abnormalities. He was unaware of any third trimester abortions. He noted that the outcome of SJR 35 could be that these abortions are not done in the state of Alaska. He emphasized that many women do not have the means to leave the state to obtain an abortion. Those that are less able would be hurt the most. Access to abortion services of all types could be significantly affected. He noted that there could be one managed care organization in the state of Alaska. He expressed concern that abortions could be eliminated by the policy of a managed care provider. Representative Davies questioned if the legislation differs between elective and non-elective abortions. Mr. Nakamura acknowledged that the lack of a definition could lead to problems. Theoretically, an individual could be denied necessary medical care under the definition. AMY SKILBRED, JUNEAU spoke in opposition to SJR 35. She asserted that a constitutional amendment is not needed. Under the Court's decision no one who opposes abortions is forced to participate in an abortion. No hospital is forced to hire additional staff or medical personnel to provide abortions. No public hospital can enforce a policy of prohibiting legal abortions if there are doctors, staff or medical personnel willing to perform them. She emphasized that the Constitution should not be amended without a compelling state interest. She asserted that the proposed amendment is a matter of conscience, belief and religion. She stressed that it is not a matter of public policy, medical expertise, safety, economic policy or public welfare. She stressed that the focus should be on preventing unwanted pregnancies. LISA BLACKER, JUNEAU COALITION FOR PRO-CHOICE, JUNEAU spoke in opposition to SJR 35. She observed that a woman's right to make reproductive choices is protected under the Alaska Constitution. A hospital board, charged with overseeing the financial health of the hospital cannot restrict a woman's constitutional right for reasons that have nothing to do with medical practices. She maintained that a quasi-public hospital belongs to the whole community. She agreed that individual hospital staff should not be made to participate in abortion procedures against their will. She asserted that the sponsors of SJR 35 are attempting to get around a Supreme Court decision that they do not like. She emphasized that the Alaskan Constitution was carefully crafted to protect the rights and freedoms of all Alaskans. CAREN ROBINSON, ALASKA WOMEN'S LOBBY, JUNEAU spoke in opposition to SJR 35. She stressed that medical decisions between a woman and her physician are sacred and should not be subject to a veto by the physician's employer. She emphasized that hospital board appointments are already difficult without bringing in the issue of abortion. JANET OATES, DIRECTOR, GOVERNEMNT RELATIONS, PROVIDENCE HOSPITAL, ANCHORAGE spoke in support of SJR 35. She maintained that the legislation provides the right to choose not to do elective abortions in their facility. She observed that the legislation places the language and the intent of the 1970 abortion statute into the Constitution. She observed that the hospital is a quasi-public facility. She expressed concern with the Court's footnote indicating that religious tenets may not be accepted as a compelling reason for choosing not to perform abortions. She maintained that the legislation would not change the status quo. Hospitals would be allowed not to do abortions due to religious beliefs or reasons of conscience. Women would be allowed to receive elective abortions in clinics. Medically necessary and emergency abortions would continue when a woman's life is at risk. Representative Grussendorf noted that no hospital personnel would be forced to participate in an abortion. He questioned if personnel could be sanctioned for performing an abortion. Ms. Oates explained that, if personnel felt that an abortion was necessary, the Ethics Committee, which is on 24-hour call, would provide advise. Representative Grussendorf questioned what would happen if an employee performed an abortion prior to action by the Ethics Committee. Ms. Oates stated that there would be a problem. She did not know of anyone who had been terminated for performing an abortion. In response to a question by Representative Davis, Ms. Oates clarified that supporters of the amendment are talking about elective abortions. In response to a question by Representative Davies, Ms. Oates noted that Providence Hospital does perform abortions in life threatening situations. She stated that she would not object to clarifying that the legislation pertains to elective abortions. Representative Grussendorf questioned if the Ethics Committee would refer a patient who wished to obtain an abortion to another physician or facility. Ms. Oates noted that there are a number of health care services that are not available in the state of Alaska. She clarified that the Ethics Committee would also be concerned with the viability of the fetus. Representative Davies questioned if a receptionist could refuse to check in a person that is obtaining a therapeutic abortion. Ms. Oates interpreted "accommodating" to include direct and indirect personnel. Representative Davies questioned if the bookkeeper could refuse to participate. Ms. Oates thought that it would stretch to include the bookkeeper under indirect personnel, but acknowledged that it was possible. LARAINE DERR, ALASKA STATE HOSPITAL AND NURSING HOME ASSOCIATION, JUNEAU spoke in support of SJR 35. The Board voted to support the amendment by a majority of the members. She stated that the Board primarily discussed direct involvement of personnel. She did not recall discussion regarding public versus private facilities. She observed that all hospitals in the State are public with the exception of Providence Hospital. She noted that the Association favors limitations to abortion. (Tape Change, HFC 98 -131, Side 1) Representative Davies observed that the Fairbanks Memorial Hospital's Executive Committee unanimously opposes the legislation. He emphasized that there is a lack of unanimity on the issue. Ms. Oates noted that the vote to support the legislation was not close. KIRSTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW discussed legal issues relating to the legislation. She observed that the legislation could eliminate the possibility for women to have safe abortions in the state of Alaska. She noted that it would be difficult to narrow the constitutional language without the addition of limiting language. She stressed that it would not be possible to add an outright ban on abortions in the Constitution. She stressed that if the amendment results in a virtual ban on abortions in portions of the State, it could be found to violate the right to privacy, because of its application and effect. Under the Planned Parenthood versus Casey decision, a substantial obstacle cannot be placed in the way of a woman who seeks abortion. She noted that her comments refer only to public facilities. There is no principle in law that would require a private facility to offer abortion services. The Emergency Medical Treatment and Labor Act requires that when an individual seeks treatment in an emergency room a hospital must provide appropriate medical screening and stabilize the patient. A patient cannot be transferred until their medical condition is stabilized. There are civil penalties for physicians and hospitals that fail to meet emergency requirements. She observed that the amendment could cause a dilemma with the need for emergency care. She pointed out that a liability could occur in hospitals if staff walks off the job or a patient is turned away. She expressed concern with the use of "accommodation". She noted that the amendment includes indirect medical care. She referred to testimony by Ms. Mason and questioned if the intent of the legislation is to allow a religious facility to limit access to procedures for moral or religious reasons. She emphasized that such intent would run afoul of constitutional clauses. She stated that government entities are not allowed to premise their delivery of services on religious reasons. She asserted that the amendment would thrust hospital boards into the arena of deciding by a simple majority whether individuals will be able to receive lawful medical services and allow decisions to be made for non-medical reasons. She observed that proponents have claimed that the amendment would restore the status quo established by the 1970 statute. She pointed out that the 1970 statute predated Roe vs. Wade, which was established in 1973 and elaborated on in 1992. A 1978 Attorney General's opinion established that the law could apply to public institutions. Facilities were advised not to rely on the statute to refuse to perform abortions. She maintained that the amendment would create an elevated constitutional right as opposed to the statutory right. She stressed that the amendment could be improved by removing the reference to public facility and accommodation, and by adding language to allow a response to an emergency to be based on medical premises. She noted that the question is how far the legislation will reach. She questioned if someone admitting a patient would sufficiently involved to be "making that kind of decision." She observed that there would be legal arguments regarding the interpretation of accommodation. She clarified that the legislation would fall beneath federally guaranteed constitutional rights. Representative Grussendorf observed that the hospital board would make the choice. Ms. Bomengen agreed that the decisions would be made on a non-medical basis. Representative Kelly pointed out that the Undue Burden test applies if there is not a specific right to privacy. Ms. Bomengen noted that there is recognition of a privacy right. The federal test is applied under the Planned Parenthood versus Casey test. The state of Alaska has an exclusive privacy clause in its constitution. In response to a question by Representative Martin, Ms. Bomengen reiterated that there was an attorney general's opinion in the early 1970's that stated that the 1970 statute could not be constitutional as applied to public institutions. Public institutions did not "push" on the statute and were therefore not challenged. She stated that the fact that the statute has been on the books has been misleading. There has never been an opinion as applied to individuals. The Valley Hospital decision stated that it did not in anyway mean that individuals would be forced to participate in abortion procedures. Representative Martin noted that the key word is "directly". Ms. Bomengen stressed that there are enough issues that are subject to interpretation to anticipate that there would be legal challenges. Representative Grussendorf questioned what would happen if a person was in an emergency situation due to a botched abortion attempt. Mr. Bomengen stated that there could be some confusion, but that the federal law clearly requires that a patient be stabilized. If a person is in labor the hospital must care for both the mother and child. Any discussion of transfer must make sure that any emergency situation has been resolved. She stressed that the response of a facility under the amendment would be uncertain without additional clarifying language. Representative Grussendorf observed that federal funds would be jeopardized if a person were not cared for in an emergency situation. Representative Kelly expressed his desire to clarify that the legislation addresses "elective" abortion. Representative Davies questioned if clarifying language would reduce litigation. Ms. Bomengen noted that further language clarifying that the amendment does not apply to the broad spectrum of medically indicated abortions would reduce litigation. BETH KERTTULA, JUNEAU spoke in opposition to SJR 35. She stated that it is hard to understand why a publicly funded institution would not be required to meet constitutional requirements, especially when no individual would be required to perform abortions. She maintained that the amendment is broad. She noted that it covers private and public facilities. She supported additional language to limit the legislation to elective abortions. She stressed that the legislation would require women to talk about painful situations, such as rape. She requested that the issue not be "driven down to local boards." SJR 35 was HELD in Committee for further consideration.