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.