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.