MINUTES SENATE FINANCE COMMITTEE 8 April 1998 9:05 a.m. TAPES SFC-98, #118, Sides A and B CALL TO ORDER Senator Bert Sharp, Co-chair, convened the meeting at approximately 9:05 a.m. PRESENT In addition to Co-chairman Sharp, Senators Phillips, Torgerson, Parnell and Adams were present when the meeting was convened. Senators Pearce and Donley were excused. Also Attending: SENATOR MIKE MILLER; REPRESENTATIVE NORM ROKEBERG; REPRESENTATIVE TERRY MARTIN; SHIRLEY ARMSTRONG, staff to Representative Rokeberg; SUSAN BURKE, Esq., Law Firm of Gross and Burke, Juneau; JANICE ADAIR, Division of Environmental Health, Department of Environmental Conservation; DEBORAH VOGT, Deputy Commissioner, Department of Revenue; BOB BARTHOLOMEW, Deputy Director, Division of Income and Excise Audit, Department of Revenue; ARBE WILLIAMS, Director, Division of Administrative Services, Department of Labor; DWIGHT PERKINS, Legislative Liaison, Office of the Commissioner, Department of Labor; JANET OATS, Director of Marketing and Governmental Relations, Providence Hospital, Anchorage; KRISTEN BOMENGEN, Assistant Attorney General, Human Services Section, Civil Division, Department of Law; SUE MASON, Esq., Anchorage Attorney; PETER NAKAMURA, M.D., Director, Division of Public Health, Department of Health and Social Services; LIZ DODD, President, Alaska Civil Liberties Union; LISA BLACHER, on her own behalf; LARAINE DERR, Alaska Hospital and Nursing Home Association; fiscal analysts and aides to committee members and other members of the Legislature. Via Teleconference: RICK SOLIE, Director, Fairbanks Memorial Hospital, Fairbanks. SUMMARY INFORMATION Co-chair Sharp convened the meeting and reviewed the calendar for the day's agenda. He called HB 51. HOUSE BILL NO. 51 "An Act relating to the Department of Environmental Conservation." CS FOR HOUSE BILL NO. 51(RLS) "An Act relating to the Department of Environmental Conservation; amending Rules 79 and 82, Alaska Rules of Civil Procedure; and providing for an effective date." CS FOR HOUSE BILL NO. 51(RLS) am "An Act relating to the Department of Environmental Conservation; amending Rules 79 and 82, Alaska Rules of Civil Procedure; and providing for an effective date." Representative Norm Rokeberg was invited to join the committee. As sponsor of the bill he explained HB 51 for the committee. He said they would be working from SCS CSHB 51() "Y version. He introduced his staff, Shirley Armstrong who noted the statutory provisions related to pollution standards. That would amend Rule 79. Senator Torgerson asked about page 4, section 4. Representative Rokeberg explained this was an environmental overlap. Senator Torgerson asked if Federal regulations were enforced by the State and Representative Rokeberg responded that perhaps sections 3, 4 or 5. Senator Torgerson further inquired if there was flexibility in issuing permits. Representative Rokeberg said the bill included a slimmed down version. MIKE CONWAY, Director, Division of Air and Water Quality, Department of Environmental Conservation was invited to join the committee. He commented on sections 1 through 6. He noted the department had the ability to work with applicants and those affected by EPA. In the final analysis, before reclassification was done of waters or the standards are changed they are not effective until the EPA does an approval. Natural water quality is the basis for water quality standards. He felt regulatory language since drafted would deal with this issue. The petition process is redundant of the existing process. The department feels it is inconsistent with the Federal law governing water quality standards. Senator Adams asked about the redundancy issue and Mr. Conway said they had the ability to take information from those who have concerns about the standards and deal directly with them. They have special work groups set up. Senator Adams further asked about section 5 and said this referred to natural conditions. Would this lower the standards the way it was now written? Mr. Conway said it had the possibility of doing that. They normally deal with the natural water quality through a permit. It would be a phenomenal burden to deal with this statewide if it were not based on a permit. JANICE ADAIR, Director, Division of Environmental Health, Department of Environmental Conservation was invited to join the committee. She continued on section 7 and said this would implement a new requirement in the Safe Drinking Water Act passed by Congress in 1996. She said it was required that states have administrative penalty authority for violations of that program. She noted the Federal law sets a level of $1000/day for violations of systems serving ten thousand people or more. She said the EPA penalties would not take effect until they said they must have it. Co-chair Sharp asked about entity as referred to in the draft version. Would the department prefer this be changed to "owner/operator"? Ms. Adair concurred adding "owner/operator of a public water system" as that was who they were talking about. She further added that the Anchorage Water and Waste Utility would also like to have assurance in the legislation that the department would have an informal review process. The department did not object to this request. She said they would be happy to work with staff on that particular language. Co-chair Sharp said there being no further questions by the committee that he would HOLD HB 51 in committee. He then called SJR 35. SENATE JOINT RESOLUTION NO. 35 Proposing an amendment to the Constitution of the State of Alaska relating to participation in an abortion. CS FOR SENATE JOINT RESOLUTION NO. 35(JUD) Proposing an amendment to the Constitution of the State of Alaska relating to participation in an abortion. Co-chair Sharp said there was teleconference testimony of institutions that may be affected by this bill. SENATOR MIKE MILLER, representing Senate District Q was invited to join the committee. He said he introduced this resolution after speaking with a number of individuals and organizations around the State. It basically stems from the Valley Hospital case decided by the Supreme Court. He briefly explained a statute passed by the Alaska State Legislature which essentially legalized abortion in the State. One very important clause included by Senator Barry Jackson from Fairbanks which stated the bill provided a person or hospital is not to be required to participate in abortion and neither shall a person or hospital be held liable for refusing to participate in an abortion. He said that if an individual had the right to choose to participate in an abortion another individual should have the same right to choose not to participate. This is the same law that had been on the books since 1970 and essentially the law that was struck down in the "Valley" case of last fall. He explained that this bill would add a new section in the Constitution saying that nothing in the Constitution requires a person, private or public health care facility, to participate in or provide accommodations for the performance of an abortion. He said there were a number of issues that came out of the mentioned Court decision that were very disturbing. He believes that the next hospital that will be sued will be Providence Hospital in Anchorage. It is well known that the hospital has some very strong beliefs. The same would apply to the Ketchikan hospital. Both are run by nuns. He noted that in the "Valley" case the argument was that the hospital was a quasi-public institution because it participates in the State's certificate of need. But he said every hospital falls into that category. Also, the Valley hospital received construction funds, lands and operating funds from the State of Alaska, Federal and local government. This would also apply to Providence Hospital as it is now located on public grounds. Further, a significant portion of the operating funds received from Medicare and Medicaid. Under current law, without this resolution, Senator Miller feels that providence Hospital will lose their case. This was very scary to have the government telling the religious what they will practice. Senator Adams noted that Providence was a private hospital and asked if it was affected by the legal decision in the "Valley" case? Senator Miller said it was not because a suit had not been filed at this time, however, as mentioned previously, he felt that Providence would lose if a suit is filed. RICK SOLIE, Fairbanks Memorial Hospital via teleconference from Fairbanks said he was available to answer any questions the committee may have. JANET OATS, Director of Marketing and Government Relations, Providence Hospital, Anchorage was invited to join the committee. She said Providence Hospital expressed support for the resolution. She said it would help resolve the issue raised in the "Valley" hospital Supreme Court ruling. Providence Hospital sees the matter as an issue of choice. It was hoped that the proponents of choice would support the same values for them. She further asked that the matter not devolve into pro-choice/pro-life debate. Providence Hospital has a history of respecting the beliefs and conscience of others, and while they clearly make known their values they do not seek to impose those same values on others. She reminded the committee that they had not bowed to pressure from some individuals to not allow some physicians on their staff who do abortions in their own offices to practice at Providence. They feel that passage of this resolution would insure mutual respect continues in the State. She further stated that the definition of quasi- public hospital is so broad that it could apply to every hospital in the State. In the "Valley" case, the Court found that without a conscience clause there could be a giant leap from the right to choose to be involved in an abortion to a mandate to participate. Originally, Providence Hospital felt the ruling did not apply to them and had no concern. However, Providence Hospital also manages and operates the hospitals in Seward and Kodiak, which is essentially a lease contract with the Borough of Kodiak and the City of Seward. This brought them closer to a quasi-public facility. In wrapping up her testimony she asked the committee to consider passage of this resolution to resolve the mentioned issues. Senator Adams said that he believes Providence is the best hospital in Alaska and has enjoyed the services there. He asked if passage of the resolution as written could lead to ban of all constitutional protective abortions? Ms. Oats said she did not think so. Most elective abortions are done in the first trimester and not done in hospitals but rather in physicians' offices. Senator Donley asked the policy of Providence when the life of the mother is in danger. Ms. Oats responded that in the case of the life of the mother being in danger the hospital has performed therapeutic abortions. There is an ethical committee that can be called, the clergy or related affiliation of the individual would also be invited to participate and then a decision would be made. This is also an elective abortion. KRISTEN BOMENGEN, Assistant Attorney General, Human Services Section, Civil Division, Department of Law was invited to join the committee. She said that there were some problem with some terms in the latest version of the resolution being applied in an overly broad manner. Specifically she referred to abortions when the life of the mother was at risk. She did not feel that the resolution adequately addressed those kinds of circumstances. Definitions of "health care facilities" as currently applied in statute may run into some contradictory analyses. More particular, the resolution did not address instances that may arise in which there are emergencies. This would create a constitutional right for an individual or facility to assert contrary to what might come up in evaluating an emergency. This would raise concern about what the results might be in trying to analyze the assertion of a constitutional right when one is presented with a life and danger circumstance. She further believed this resolution could present problems for hospitals that wish to provide abortion services in their facilities. Another anticipated problem would be with an individual contracting with a facility to perform abortions and then having a change of mind create a constitutional problem with the original contract. There is a problem with trying to achieve indirectly what the State cannot achieve directly. There could be some outcomes that would result in the effect being, for example the individuals in Kodiak, an abortion would not be available. A challenge could based on those effects, if there is a remote region of our State where there is a hospital facility largely supported by public funds, prohibiting abortions. She therefore does not believe the resolution to be constitutionally sound and could be challenged. It was suggested the term "public or private health facility" be removed so that it would only apply to a person. That would create a different outcome. Senator Phillips asked if the same argument was not overly broad for our right to privacy? Ms. Bomengen said the right to privacy was made in broad terms because it was intended to apply to many specific personal situations. This resolution, however, identified a specific situation. But in specific terms did not necessarily define them adequately to make them easily applicable. Senator Phillips said it sounded as if she were against this resolution based on her testimony. He felt her description of "overly broad" as opposed to the fact that it was basically o.k. with some work on it indicated that she was against it. Tape #118, Side A switched to Side B.) Ms. Bomengen continued explained her description of "overly broad" with regards to its potential application to circumstances in which there is a guaranteed protection. Perhaps the insertion of "private or public health care facility" would make the resolution more specific; however the inclusion of "public health care facility" also made it unconstitutional in its' effect under the Fourteenth Amendment of the Federal Constitution. There followed a brief conversation between Senators Donley and Phillips. Senator Adams asked what was discussed when the resolution was heard in the Judiciary committee. Ms. Bomengen indicated she was not present and her main concern was that the resolution did not address the issue of health. She said she believed the effect may be that constitutionally protected abortions would be unavailable, which would place a substantial obstacle in the way of a woman who wishes to receive those health services. This would cause great concern in remote areas where there may be only one facility that can perform the service. Senator Parnell asked about the protection of an individual's conscience. One doesn't need to address all "what ifs". Ms. Bomengen said she did not know if the term "abortion" was agreed upon widely by everyone as there are different definitions to be found in other statutory frameworks. She was not sure it could be said with certainty just what would be denoted by the term when placed in a constitutional context. Senator Parnell said the Court knew what they were talking about in their opinion about a woman's right to an abortion. He asked that they get now to the question of the health care facility. Ms. Bomengen said in the distribution of public funds a state can not set up a system by which fundamental constitutional rights are infringed. That has been closely scrutinized as applies to abortion. She said individual rights of conscience are recognized, specific provisions that recognize religious objections and there are legal tests applying to religious objections. Senator Phillips MOVED CSSJR 35() "B" version. Senator Adams OBJECTED. By a roll call vote of 5 yeas (Sharp, Pearce, Donley, Torgerson, Parnell, Phillips) and 1 nay (Adams) CSSJR 35(F) "B" version was ADOPTED. SUE MASON, Esq., Anchorage attorney was invited to join the committee. She informed the committee many of her clients were hospitals and that she was involved in the "Valley" case. She was retained by the Alaska State Hospital and Nursing Home Association and had submitted an amicus brief on their behalf in support of Valley Hospital's position in that case. Since she has been counsel for Providence Hospital for several years they asked her to speak on the legal implications of the "Valley" decision that did support adoption of a constitutional amendment. Her main concerns were the legal rights of her hospital clients. These included: Valley Hospital, a private, non-profit corporation; Providence Hospital, a private, religious corporation; and hospitals in Kodiak and Seward wherein the physical facility is owned by a local government organization but are operated by Providence Hospital. She did not feel that a religious belief could be used as a compelling state issue. The situation for religious hospitals was very unclear and therefore she supported the passage of the resolution. Senator Phillips asked about the fundamental right to abortion and was the right to seek an abortion elsewhere being denied. Ms. Mason said if there was any problem the abortion could be sought elsewhere. She agreed with the comments of Senator Miller and Ms. Oats that this was a matter of choice. If the resolution is adopted there would be situations of competing constitutional rights. However, she said the Courts were used to dealing with conflicting situations. And the Legislature regularly adopts statutes that implement and interpret constitutional provisions to clarify some of the areas of conflicts. In that connection she referred to SB 348 and said it set up procedures for people on either side of the issue to exercise their rights in an orderly fashion. Senator Phillips indicated that no one was denying a woman's right to seek an abortion elsewhere and Ms. Mason concurred. Senator Adams asked if State funds were used for the construction of Valley Hospital versus no funds for Providence Hospital. Ms. Mason said that one of the factors that Court relied upon to find that "Valley" was a quasi- public hospital was the fact that it had received public funds and public land to construct the hospital. She did know that for years Alaska had a revenue sharing statute on the books wherein revenue sharing funds were available to hospitals for construction. It would be hard to find a hospital in Alaska that had not received state or Federal funds for construction. Senator Parnell commented on the same and said there would be no health care facility that would not be quasi-public. Noting the time and number of testifiers, Co-chair Sharp indicated he hoped those testifying today had not testified in the Judiciary committee hearing on this matter. LIZ DODD, President, Alaska Civil Liberties Union was invited to join the committee. She wanted to know who did Senator Miller think was going to sue Providence hospital. If there was going to be any suit brought ACLU Litigation would be in the forefront and there was nothing to her knowledge pending. There were other hospitals one could go to and seek an abortion. She did agree, however, the problem would arise in the smaller communities. This was a technical question and should be carefully considered by the Legislature but the abortion issues did not belong here. SJR 35 was the tool of those who make no bones about wanting to substitute God's law for the State Constitution. She quoted: "Some things are greater than man's law." It was chilling to hear guardians of the State Constitution speaking in this manner. Alaska is a diverse group of citizens, believers and non-believers, and are ruled by no law higher than the State Constitution. Government by religion is tyranny. PETER NAKAMURA, M.D., Director, Division of Public Health, Department of Health and Social Services was invited to join the committee. He took opportunity of the camera and reminded everyone this was National Public Health Week and parents and providers should get their children immunized. He addressed the issue from a health and public health view. He did not like abortions and suggested support of prevention programs. However, he noted that if abortions were eliminated from the State for whatever reasons individuals would have to go outside to obtain an abortion. Only those who could afford it would be able to have one. This would cause an increase in unwanted births, child abuse and neglect, and an increase in domestic violence. A study soon to be published shows that those pregnant teenagers under the age of eighteen experience two-and-a-half times the physical violence of other women who are pregnant. This ratio continues even after they have their babies. He encouraged preservation of access to services for those who really need it for medical and public health reasons. Senator Parnell asked how did SJR 35 cut off access to abortions? Dr. Nakamura said there were only about eighteen or nineteen hospitals that were not federally operated in the State. The majority of abortion services are not provided in hospital but rather in physicians' offices. However, there are requests for abortions in second and third trimester and these are the ones that would be cut off. Senator Parnell reminded Dr. Nakamura that Providence's current policy was not to provide abortions other than the case as referenced. (Tape #118, Side B switched to #339, Side A.) LISA BLACHER, testifying on her own behalf was invited to join the committee. She said she opposed the bill. She said it was a bad idea to change the Constitution by a public vote. LARAINE DERR, Alaska Hospital and Nursing Home Association was invited to join the committee. She said the Hospital Association supported SJR 35. (at ease taken at 10:45 a.m.) Senator Phillips MOVED CSSJR 35(FIN) "B" version. Senator Adams OJBECTED. By a roll call vote of 5 yeas (Sharp, Pearce, Donley, Torgerson, Parnell, Phillips) and 1 nay (Adams) it was REPORTED OUT with individual recommendations and accompanying fiscal note from the Governor's Office/Elections in the amount of $3.0. Co-chair Sharp called SB 345. SENATE BILL NO. 345 "An Act relating to apportionment of business income." Co-chair Sharp HELD SB 345 in committee until the afternoon calendar. ADJOURNMENT Co-chair Sharp recessed the meeting at approximately 10:55 a.m. SFC-98 -1- 4/08/98