THE CONFERENCE:
Candidate Survey (11/2006)
making (1/06)
Statement (2/05)
-Capitol
Correspondent:
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Life Insight:
Columns-2008
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(Bills carried over to 99th Session beginning in January of 2006 marked by *)
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Testimony in Support of LB 28, 1/21/05 (Planned Giving Tax Credit) |
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Testimony in Support of LB 57*, 3/3/05 (Make Fetal Assault a Crime) Debate begins 1-12-05 with a vote expected following week. |
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Testimony in Opposition to 102*, 1/21/05 (Storm Water Taxation) |
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Testimony in Support of LB 239*, 3/2/05 (Illegal Immigrant College Tuition Bill) |
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Testimony for Increased Textbook Loan Funding, LB 425, 3/3/05 |
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Testimony in Support of LB 437*, 3/10/05 (Ban on Human Cloning) & 750* (Ban Cloning of Human Embryos for Any Purpose and Delivery & Receiving for Research) |
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Testimony for Amending LB 467*, 1/21/05 Highly Qualified Teacher Program Incentives |
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Testimony in Support of LB 554*, 2/14/05 (Minimum Wage) |
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Testimony in Opposition to LB 576 3/2/05 (Repealing Sales Tax Exemptions and Definitions) |
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Testimony in Opposition to LB 580*, 3/10/05 (Ban Implantation of Cloned Human Embryo, NOT cloning itself) |
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Testimony in Support of LB 586*, 2/17/05 (Food Stamp) |
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Testimony in Support of LB 598, 2/4/05 (Substance Abuse Funding) |
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Testimony in Support of LB 752*, 3/10/05 (Fetal Pain) |
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Testimony in Support of 760*, 3/16/05 (Death Penalty) |
Introduced in 2006:
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Testimony in Support of 769, 1/25/06 (Education Expense Tax Credit) (or see NFCSP testimony) |
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Testimony in Support of 810, 1/25/06 (Earned Income Tax Credit) |
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Testimony in Support of 944, 1/25/06 (Repeal ADC Child Exclusion) |
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Testimony on LB 1248, 2/8/06 (Medicaid Reform) |
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LR 254CA, 2/23/06 (Propose “Right of Privacy” for the Nebraska Constitution) |
Written Testimony in Support of LB 28
January 21, 2005
Senator Landis and Members of the Revenue Committee:
Understanding that an adequate amount of supportive, oral testimony is already planned, I am using this means to add the Nebraska Catholic Conference’s support for this important legislation. It is a meritorious and worthwhile proposal, particularly with respect to the positive impact it will have on the endowments of Nebraska-based organizations.
Non-profit organizations that qualify under §501(c)(3) of the Internal Revenue Code—truly, voluntary associations of taxpaying citizens coming together for worthy purposes and endeavors—greatly enhance the common good in this state and provide benefits and services that otherwise would be tremendous additional burdens for government. Endowments are at the forefront of sustaining and enhancing extensive commitments to health care, human services, arts and humanities, education, and philanthropy presently and far into the future. LB 28 will be of great importance and support for these worthy purposes. It will be a wise investment for the state.
Thank you for your attention to our support for LB 28. We urge you to affirm the current proposal by advancing it to General File.
ON BEHALF OF THE
NEBRASKA CATHOLIC CONFERENCE
James R. Cunningham
Executive Director
To: The Judiciary Committee
From: Greg Schleppenbach, Director of Pro Life Activities, Nebraska Catholic Conference
Date: March 3, 2005
Senator Bourne, members of the Judiciary Committee:
Good afternoon. My name is Greg Schleppenbach. I appear on behalf of the Nebraska Catholic Conference in support of LB 57. The Conference is an association of the three Roman Catholic dioceses in Nebraska, organized to represent their mutual views and concerns on matters involving public policy.
The Conference’s position on this bill is that the Legislature should protect all human beings, including unborn children, not only within the context of homicide, but also within the context of criminal assault. The concept embodied in this bill offers a sound, rational, common-sense approach for dealing with current deficiencies and injustices.
Nebraska law currently provides no legal recognition or protection for prenatal human beings who sustain non-lethal injuries as a result of nonconsensual, unjustified, violent acts of another, acts typically directed at the woman who carries the unborn child within her womb. Current public policy does recognize and protect unborn children as a matter of criminal law with respect to specifically defined conduct that results in death. This bill is an important, necessary and logical extension of that public policy, to include non-lethal injury.
The current deficiency in law and public policy stands in contradiction to justice, compassion, and the official policy of the state of Nebraska, which is to “provide protection for the life of the unborn child whenever possible.” (Section 28-325, Nebraska Revised Statutes)
Any concerns about the constitutionality of this legislation are unfounded. Protection of the unborn child outside the context of abortion is entirely permissible. The U.S. Supreme Court, in Roe v. Wade, recognized the state's "important and legitimate interest" in protection of unborn human life throughout pregnancy. Only in the context of abortion did the Court hold that this interest must yield, to the pregnant woman's desire to terminate her pregnancy.
LB 57 does not differentiate on the basis of gestational age. No differentiation need be made, nor should be made, because to do so would be illogical, merely arbitrary. Medical science is a reliable, irrefutable indicator of the existence of a separate and unique human being. Issues of causation and proof can be addressed and resolved within the legal process, just as it regularly operates regarding other crimes.
Since it is constitutionally permissible to protect all unborn children and their families under the criminal assault law, Nebraska should do so. For families who anticipate and welcome their babies from the moment pregnancy is known, the state should not be saying to any such family that the non-lethal, serious bodily injury their unborn child has suffered as a result of criminal conduct is any less real or significant than injury to a child already born.
The state of Nebraska owes it to its society as a whole, and to the children and families who suffer very real, intensely human, and deeply felt injustice to fix and enhance its law as proposed by LB 57.
Thank you for your attention and consideration.
TESTIMONY IN OPPOSITION TO LB 102
January 19, 2005
Mr. Chairman and members of the Natural Resources Committee:
Good afternoon. My name is Jim Cunningham, spelled C-U-N-N-I-N-G-H-A-M. I am the executive director of the Nebraska Catholic Conference, which is the public-policy office operated jointly and cooperatively by the Archdiocese of Omaha and the dioceses of Lincoln and Grand Island.
The Nebraska Catholic Conference remains firmly opposed to any legislation that proposes to shift storm water infrastructure, operation and management from a tax-funded, general public purpose to what some call a fee-based “utility.” We opposed LB 32 during the previous Legislature and nothing about today’s LB 102, its worthy intention notwithstanding, causes us to alter that position.
The Nebraska Catholic Conference is opposed to LB 102 because it will erode the validity and value of tax exemption for non-governmental, non-profit institutions and organizations that carry out special functions and fulfill important public purposes, thereby producing significant public benefits and generating considerable tax savings as well. LB 102 fails to honor Nebraska’s longstanding, traditional policy of providing exemption from property taxes for qualifying property owned by religious, educational, charitable and cemetery organizations and used for qualifying purposes under Nebraska law. In this regard, LB 102 damages a trust that has existed for well over 100 years.
In our view, the authority proposed by LB 102 is taxing authority; irrespective of the way the authority to impose charges is described. It is taxing authority because, notwithstanding the fact that sufficient authority already exists to raise revenue for these purposes, it is intended to raise governmental revenue to pay for infrastructure, public improvements and management programs that provide a general public benefit, clean water being a benefit shared by the public at large. Moreover, what this bill purports to establish as a utility is not really a matter of contract for services provided; it is a fiction, because true, consistent measurement in terms of unit rate for actual generation or consumptive use is a practical impossibility, especially given all the variations arising from the source of storm water. The purported consumer is unable to exercise any control over where it rains, when it rains, or how much it rains. This reality is acknowledged and provided for under current public policy; one need only read section 18-510, the definition of sewage system and sewerage system, in conjunction with sections 18-501 through 18-506.01 to identify the distinction.
LB 102 proposes a significant and substantial change in public policy. Under current policy, as we understand it, cities and villages are only authorized to impose use charges with regard to the use attributable to a sewage disposal plant or sewerage system, which, by definition under section 18-510, does not include the storm water or storm sewer system. LB 102 would shift and expand that authority to impose user charges, to encompass the general public purpose and benefit of storm water management and pollution control, doing so on the basis of an indefinite, fictional measurement.
From our perspective, this significant and substantial change in public policy is made even more significant and substantial by the fact that any expansion of so-called user charges will have negative financial repercussions for properties that comply with every procedure and satisfy every requirement for exemption from general taxation.
At the very least, what LB 102 proposes is akin to a payment in lieu of tax, something that our broadly based institution, as well as many others that likewise value the opportunity to be exempt from taxation, has consistently opposed. Our position on this bill is consistent with our past statements in front of the Revenue Committee.
In the view of the Nebraska Catholic Conference, it is irrefutable that tremendous social and human advantages arise from the presence of religious, educational and charitable entities within communities. They are mechanisms that give collective voice to societal values of altruism and pluralism. If your expectations as policy makers are that religious, educational and charitable entities will continue to meet human needs, carry out social action, charity and ministry, provide education and perform the special function of religion in society, assisting people in finding meaning in their lives, then exemption from taxes, both straightforward taxes and those that are taxes by another name, should not be eroded.
Here in Nebraska, the Catholic Church, and it is the same for many other religious denominations, of course, is an institution with many ministries; foremost among these is to serve, without regard to profit, the human needs of people in their communities. In accord with this religious mission, the Church provides a diverse array of social services, especially for the poor and those most vulnerable. These human services include, but are by no means limited to, care for the elderly, youth ministry, emergency assistance and disaster response, family counseling, pregnancy counseling, adoption services, refugee resettlement, child care, housing and many more. The Catholic Church in Nebraska operates two of the largest non-governmental human services systems: Catholic Charities of the Archdiocese of Omaha and Catholic Social Services of the Diocese of Lincoln. Numerous long-term care facilities in the state are affiliated with the mission of the Church, as are several health-care facilities. The Catholic dioceses operate the largest systems of non-governmental elementary and secondary schools in the state, providing quality academic, social and values-based education to 30,000 Nebraska youngsters, at a significant cost to their parents and other patrons.
The obvious point is that the function of the Church, in her array of missions, enhances human lives in many ways and serves the common good in the State of Nebraska. One by-product of this commitment to the common good is that taxpayers overall are saved the hundreds of millions of dollars it would cost government to undertake to provide all of these human services.
For most religious, educational and charitable organizations, the task of meeting human needs and serving the public good is a financial challenge. Moreover, as we look ahead to increased expectations of non-governmental endeavors, the challenges will escalate even further. The added financial burden of taxes, irrespective of the terminology assigned to them, will only exacerbate the difficulties.
Religious, educational and charitable institutions and organizations that meet all requirements for exemption from property taxes are not nameless, faceless entities that enjoy special treatment on the basis of their activities. They are most often non-profit associations of individual Nebraskans who voluntarily organize themselves for worthwhile purposes providing significant public benefit. These individuals pay their obligations toward the costs of government. The very same people who already pay their personal taxes are also going to be paying these taxes-by-another-name should they be authorized and imposed. On the other hand, by not authorizing the imposition of these taxes-of-another-name you will be honoring and continuing a policy that permits the value of supporters’ contributions to be used for the purposes intended.
It has been a longstanding, traditional policy of this state that public policy recognizes and encourages, by means of exemption from taxation, religious, educational and charitable entities with regard to meeting human needs, producing important public benefits and enhancing the common good. LB 102 will diminish the State’s encouragement of the role of religious, educational and charitable entities and negatively affect the ability of these entities to carry out their functions. Therefore, we urge you to indefinitely postpone LB 102.
Thank you for your time and attention.
Respectfully submitted,
James R. Cunningham
Executive Director
Testimony in Support of LB 239
To: LEGISLATURE’S EDUCATION COMMITTEE
From: James R. Cunningham, Executive Director
Subject: LB 239 – In-State Tuition for Immigrant Students
Date: March 15, 2005
Senator Raikes and members of the committee, good afternoon. For the record, my name is Jim Cunningham. I am the executive director of the Nebraska Catholic Conference, on whose behalf I present this testimony. The Catholic Conference is a state-level association through which the Archdiocese of Omaha, the Diocese of Lincoln and the Diocese of Grand Island speak and act mutually and cooperatively on matters involving public policy, under the direction of the Diocesan Bishops.
The Nebraska Catholic Conference supports LB 239 for the following reasons:
Education and care for young people are central to the ministry of the Catholic Church. Likewise, care for immigrants and refugees is central to the ministry of the Church. Formed on these bases, our perspective is that what LB 239 proposes is a matter of basic social justice.
A successful student who has attended and graduated from a high school in our state and desires to go on to post-secondary education, but who is undocumented through no fault of his or her own, should have the same opportunities as any other Nebraska student; the same opportunity as the student who is his or her neighbor or friend.
It’s not only social justice; it’s logical. It’s common sense. LB 239 would improve state law regarding tuition rates at governmental post-secondary institutions.
For undocumented students, this law would mean that they would have the same opportunity as their classmates to attend a post-secondary institution, in accordance with conditions that are just, thorough and reasonable, but without having to encounter the additional and unfair burden of paying the non-resident tuition rate. These students would have something to work toward while in high school, and many students who might otherwise lose hope and drop out would continue on with education and advance toward better futures.
Our entire state would benefit from the talent these students could bring to their chosen fields and communities. A recent editorial in the Grand Island Independent makes this point in an excellent fashion; quoting, in part:
“Children of illegal immigrants have already faced a tough road by the time they reach college age. They will have
moved into a new country, learned a new language and adapted to many changes in their lives. The more they are
encouraged to better their education and their lives, the better it will be for everyone in this country.”
This bill does not ask you to be a pro-immigrant activist. Rather, it presents an opportunity to make Nebraska a stronger, fairer, more welcoming, more prosperous state when more of Nebraska’s high school graduates have an opportunity to pursue and attain higher education.
These students are not strangers among us; public policy should not treat them as strangers.
This is meaningful legislation to improve the overall quality of life in Nebraska. We urge that you advance this bill to the full Legislature.
Thank you for your attention and consideration.
Testimony for Increased Funding to Textbook Loan Program within LB 425
To: Senator Don Pederson and Appropriations Committee
Date March 3, 2005
RE: LB 425 Appropriations for the Textbook Loan Program
Dear Senator Pederson:
On behalf of the 30,000 students educated in Nebraska’s Catholic school systems, we are asking you to support a modest increase in funding for the Textbook Loan Program as the Appropriations Committee works to refine the Governor’s biennial budget proposal set forth in LB 425.
The Textbook Loan Program permits students enrolled in parochial schools to borrow textbooks from their local public school and, to a limited extent, provides funds to the public schools to purchase additional textbooks to satisfy textbook requests (along with a 5% fee to cover administrative expenses). However, if the amount needed to accommodate textbook loan requests for any given year exceeds the amount pre-determined and appropriated by the Legislature, the number of textbook loan requests fulfilled is reduced accordingly. For example, the appropriation for the current school year was $351,259, but school districts submitted funding requests to the State Department of Education in excess of $408,000. Thus, 14% of the textbook requests submitted by parents were denied.
We request that the Textbook Loan Program funding be reinstated to the $424,000 level the Legislature appropriated to the program in the 2001 budget prior to several rounds of budget cuts. At a time when the Governor is proposing a $61.3 million increase in state aid to public schools, we believe our request is quite reasonable. Although 1 out of every 8 children in Nebraska receive their education in private elementary and secondary schools, the textbook loan program is the only state aid to education program available to parents who satisfy the state’s compulsory education requirements by enrolling their children in private and parochial elementary and secondary schools.
The education provided to each student enrolled in a private or parochial school is just as important to the state’s future as is the education provided to a student in a public school. Please support this worthwhile, cost-efficient and effective education program, and please give our request for an increase in funding serious consideration.
Thank you for your time.
Mitchell D. Rowley, Associate Director for Education Issues
Testimony in SUPPORT of LB 437 and LB 750
And in OPPOSITION to LB 580
From: Greg Schleppenbach, Director of Pro Life Activities, Nebraska Catholic Conference
Date: March 10, 2005
Senator Bourne and Members of the Judiciary Committee:
My name is Greg Schleppenbach. I am speaking on behalf of the Nebraska Catholic Conference in my capacity as Director of Pro Life Activities. The Conference, which represents the mutual, public policy interests and concerns of the three Catholic dioceses in Nebraska strongly supports LB 437 and LB 750 and strongly opposes LB 580.
Both LB 437 and LB 580 are entitled “Human Cloning Prohibition Act” and both propose to outlaw “human cloning”. In reality, only one of these bills—LB 437—can pass the truth in advertising test. LB 580 is wrong in its claim to ban “human cloning”. The key to this conclusion is in how each bill defines “human cloning.”
LB 437 defines human cloning as the use of the cloning technique known as somatic cell nuclear transfer to make human embryos for any reason. Hence, it would prohibit the cloning of human embryos for live birth AND for utilization in stem cell research, which destroys them.
LB 580 defines human cloning as implanting cloned embryos into a uterus. Hence, LB 580 would allow the unlimited production of cloned human embryos as long as they are used in research that destroys them and aren’t implanted and gestated to birth. It is most disturbing to note that no where in LB 580 will you find the term human embryo. Instead, dehumanizing euphemisms such as “product of nuclear transplantation” and “unfertilized blastocyst” are used to cloak the biological fact that the “product of nuclear transplantation” with regard to humans is always a human embryo.
This fact is substantiated by the National Academy of Sciences (NAS), National Institutes of Health (NIH), and testimony of numerous experts in science and ethics including some who support the cloning of human embryos for research. For example, President Clinton’s National Bioethics Advisory Commission, in its 1997 report on cloning said, “The Commission began its discussions fully recognizing that any effort in humans to transfer a somatic cell nucleus into an enucleated egg involves the creation of an embryo, with the apparent potential to be implanted in utero and developed to term.” (emphasis added)
Ironically, the very goal of LB 580—prohibiting the use of cloning to produce a live-born baby—also substantiates this fact. If the product of nuclear transplantation is NOT a human embryo, why prohibit it from being implanted into a uterus? After all, only a human embryo, when implanted in a uterus, will develop into a fetus, an infant, a child, an adolescent and an adult.
Another problem with LB 580 is enforceability. The U.S. Department of Justice testified before Congress that because embryos created by fertilization and by cloning cannot be distinguished under a microscope, it would be virtually impossible to enforce a ban only on implantation of cloned embryos.
The choice these bills present to you is profound. And that choice is not between research or no research, between cures and no cures as some would wrongly lead you to believe. The choice is this: will you grant science the unconscionable power to turn early stage human beings into mere objects to be produced, manipulated, scavenged and destroyed for the benefit of other humans? Or will you refuse to allow science to transgress the centuries old ethical boundary to “above all, do no harm”, a boundary reinforced in recent history with the Nuremberg Code, Declaration of Helsinki, Declaration of Geneva and just last Tuesday with the United Nations General Assembly’s Declaration urging governments to adopt laws banning all forms of human cloning.
The debate in Nebraska over the last several years, beginning with the University’s use of fetal brain tissue from abortions, provides a frightening example of how quickly and easily ethical lines can be violated, tossed aside. This slippery ethical slope was most clearly exemplified by three Omaha World Herald editorials. The first one (February 2000) concludes that the Medical Center’s fetal tissue research is ethical as long it does not cause an increase in elective abortions. In other words, as long as prenatal humans are not destroyed for the purpose of research (something the editorial said would be “morally reprehensible”).
A mere one year later, the World-Herald disregarded that ethical line when it opined in favor of intentionally destroying human embryos just to harvest stem cells for research. But again the editorial proposed an ethical line that shouldn’t be crossed: it’s okay, it said, to do lethal experiments on embryos produced for fertility purposes that would otherwise be discarded, but no embryos should be created just for research purposes.
Again, a mere one year later, the World-Herald disregarded that ethical line when it editorialized in favor of allowing the use of cloning to produce embryos just for research purposes.
These three bills place before you a watershed decision. By supporting LB 437 and LB 750 you will uphold a critical ethical boundary and help to forge, in the words of Pope John Paul II, “the path to a truly humane future, in which man remains the master, not the product, of his technology.” If you reject LB 437 and LB 750 and support LB 580, then the reduction of human life to a mere instrument, a product to be manipulated, will be more complete.
For these reasons, the Nebraska Catholic Conference urges you to advance LB 437 and LB 750 and to reject LB 580.
Testimony for Amending LB 467, to Include Private School Teachers
To: Senator Dennis Byars and Education Committee
From: Mitchell Rowley, Associate Director of Education Issues, Nebraska Catholic Conference
Date: January 21, 2005
Dear Senator Byars:
RE: LB 467; Section 7 – Highly Qualified Teacher Program
On behalf of Nebraska’s Catholic school teachers and the 30,000 Nebraska students they educate, I am contacting you to express our disappointment that your Highly Qualified Teacher Program proposal, as set forth in section 7 of LB 467, does not extend professional development benefits to the state-certificated teachers employed in state-approved and accredited private and parochial schools.
Nebraska’s private and parochial school teachers collectively educate approximately 40,000 students, or one out of every eight students in the state. Catholic schools alone educate approximately 30,000 students. For comparison purposes, the Omaha public school district educates approximately 45,000 students, and the Lincoln public school district educates approximately 31,000 students. Clearly, private/parochial school teachers contribute a great deal to Nebraska’s education framework for the mutual benefit of all Nebraskans, just like their public school counterparts. Furthermore, teachers employed in Nebraska’s private/parochial schools must meet the same Nebraska Department of Education certification and endorsement standards as public school teachers. As far as state regulation is concerned, a teacher is a teacher is a teacher, regardless of the institutional setting in which they are employed.
The stated purpose of the Highly Qualified Teacher Program is to provide each Nebraska child with a highly qualified teacher. Clearly the proposed legislation will not meet its stated purpose if you unfairly exclude teachers that educate 40,000 Nebraska children. The funding for any professional development programs enacted will be derived from all taxpayers, many of whom have chosen to educate their children in private/parochial schools. The children of these taxpayers are no less worthy of receiving the benefits of a state-sponsored professional development program for teachers than are the children attending public schools.
Precedent for including private and parochial school teachers in a professional development program of this nature exists at the federal level in Title II, Part A (Improving Teacher Quality) of the No Child Left Behind Act. The U. S. Department of Education’s interpretive guidance for this program explicitly provides that Improving Teacher Quality State Grants may be used to support acquisition of an advanced degree by private school teachers.
In conclusion, we believe that the professional development proposals you envision promoting through LB 467 should be amended in such a manner as to equitably include all teachers, including teachers practicing their profession in private/parochial schools. The 40,000 children they educate deserve no less.
Testimony in Support of LB 554
To: LEGISLATURE’S BUSINESS AND LABOR COMMITTEE
From: James R. Cunningham, Executive Director
Subject: LB 554 – Increase the Minimum Wage
Date: February 14, 2005
Senator Cunningham and Members of the Committee:
Good afternoon. I appear on behalf of the Nebraska Catholic Conference, the governmental affairs agency operated jointly and cooperatively by the Archdiocese of Omaha and the Dioceses of Lincoln and Grand Island, to testify in support of LB 554. In our view it is timely and necessary.
As a matter of public policy, LB 554 is rooted in two key principles of social justice, namely, implementing a preferential option for the poor and upholding the dignity of human work and its undeniable contribution to the common good. Most importantly, work is the ordinary way people meet their material needs and community obligations. Increasing the minimum wage would help restore its purchasing power, not only for the goods and services one can purchase, but also for the self-esteem and self-worth it affords the worker.
Consistent with its position over the decades, the United States Conference of Catholic Bishops is supporting federal legislation that proposes to increase the minimum wage. Here in Nebraska, we recognize the compelling reasons to follow that leadership, prompting our support for raising the minimum wage in a timely and meaningful way, as proposed by LB 554.
Thank you for your attention. Please vote to advance LB 554 to General File so that it can be considered by the full Legislature.
Testimony in Opposition to LB 576
To: LEGISLATURE’S REVENUE COMMITTEE
From: James R. Cunningham, Executive Director
Subject: LB 576 – Repealing Sales Tax Exemption and Definitional Exclusions
Date: March 2, 2005
Members of the committee, good afternoon: for the record, my name is Jim Cunningham. I am the executive director of the Nebraska Catholic Conference, on whose behalf I present this testimony. The Catholic Conference is a state-level association through which the Archdiocese of Omaha, the Diocese of Lincoln and the Diocese of Grand Island speak and act mutually and cooperatively on matters involving public policy, under the direction of the Diocesan Bishops.
The Nebraska Catholic Conference opposes LB 576, for the following reasons:
First, the bill would repeal Section 77-2704.12, which allows religious organizations and non-governmental schools to purchase goods and services without having to pay the sales tax. This is a vitally important and beneficial opportunity for these entities, which are comprised of individual Nebraskans who voluntarily organize themselves for worthwhile purposes, purposes that provide significant public benefits. Repealing this exemption will increase the financial burden on many of our religious ministries, including our school systems, which provide quality academic, social and values-based education for 30,000 Nebraska youngsters. The current exemption policy acknowledges, respects, and encourages entities that enhance the common good. What’s more, the policy allows the full value of contributions made to these non-governmental, non-profit, public-benefit organizations to be used for intended purposes.
Second, the bill would repeal Section 77-2704.25 and thereby subject to taxation sales made by parent- and other school-based organizations when the proceeds of such sales are used to support school activities. School fundraising is a fact of life, for both governmental and non-governmental schools. Fundraising activities are a social component of the operation of schools, but more significantly, they provide important and necessary supplemental financing. The current exclusion policy accommodates these activities and keeps them unfettered by governmental processes involving retailers, which is important in light of the fact that in an overwhelming majority of situations these activities are carried on by volunteers. What’s more, the current policy allows the full value of payments made for school-support purchases to be used for the purposes intended.
Third, the bill would repeal Section 77-2704.10, thereby subjecting to taxation school lunches and other meals and food products sold by elementary and secondary schools, public as well as private. In addition, it would subject to taxation meals sold by churches at church functions. The need for, and importance of, providing meals in conjunction with a daylong school program is obvious. It is a matter of convenience and well being for the children. In the other contexts that would be impacted by this bill, food and fundraising are naturally intertwined. Furthermore, food and meals are a natural element of social interaction that is so inherent and important for church communities. The current exclusion policy recognizes that fundraising and social interaction conducted in conjunction with food and meals should be neither frustrated nor complicated by being subjected to taxation.
Fourth, furthermore, repealing Section 77-2702.10—more specifically, subsection (6) of that section—would subject to taxation fees and admissions charged by elementary and secondary schools, whether public or private, and their affiliated organizations; these would become retail sales for purposes of taxation. Presumably this would reach so far as to subject to taxation the tuition fees our schools charge for enrollment. Tuition fees are, of course, the lifeblood of being able to operate a non-governmental school system that meets all of the state’s requirements. Many private-school parents are already making tremendous sacrifices in order to pay for the costs of this education, which they deem best suited for their children. LB 576 would add to tuition costs. As for activity fees in general, the current policy recognizes and acknowledges that activities are an important element of the overall educational experience and an important aspect of that reality is that those close to the students—parents, grandparents, other relatives, neighbors and friends—are involved in, and supportive of the activities, as spectators and patrons. Policy should not be changed to frustrate, complicate or intrude upon these social benefits. Furthermore, a significant amount of the administration and management of school activities, at least in our system, is carried out by volunteers. Imposing accounting and other administrative obligations and costs by prescribing the duties and responsibilities of retailers, with respect to tax collection, is an unreasonable and impractical expectation.
Fifth, the bill would repeal that longstanding portion of Section 77-2701.24 that allows sales occurring during one activity a year conducted by an organization created exclusively for religious purposes to be treated as an occasional sale, which is excluded from the definition of retail sale for purposes of taxation. Church bazaars are as old as the State of Nebraska. They are important for purposes of both fundraising and social interaction. They are community activities. It is reasonable that when they occasionally take place that they should be allowed to happen without governmental intrusion and that all the proceeds should be derived for the churches and their religious purposes. Moreover, when they are occasional, the imposition of governmental processes, imposing upon them the duties and responsibilities of retailers, should be avoided, as a matter of practicality if nothing else.
Sixth, this bill also proposes to apply the sales tax to all but a very few “services.” Presuming that the term “services” is as broadly defined as this bill presupposes, a whole range of our religious ministries would be subjected to sales tax. For example, if repealing the exclusion for school fees were not enough to make our school tuitions subject to taxation, then applying the tax to services most likely would do that; presumably, providing education is a service for purposes of this tax bill. But education is only one example. There is a whole range of religiously based counseling that presumably would be subject to taxation.
In our view, there are sound reasons why the above-cited policy changes, which are proposed by LB 576, would be more detrimental than beneficial in relation to the common good. None of the sales or purchases that these policy changes would impact are sales or purchases in the traditional retail, profit-making context. They are inextricably linked to public benefits and should be kept free from of taxation. Therefore, we urge that LB 576 be indefinitely postponed.
Thank you for your attention and consideration.
TO: SENATOR JIM JENSEN, Chairman
MEMBERS of the HEALTH & HUMAN SERVICES COMMITTEE
FROM: James R. Cunningham
DATE: February 17, 2005
Senator Jensen and members of the committee, the Nebraska Catholic Conference, the governmental affairs agency representing the mutual interests and concerns of the Archdiocese of Omaha and the Dioceses of Lincoln and Grand Island, supports LB 586 and urges that it be advanced to General File. This is consistent with our position on LB 1110 last year.
We believe it is vitally important for the State of Nebraska to administer a comprehensive food stamp program in order to most adequately meet the subsistence needs of low-income individuals and families. Utilizing all options provided by the Federal food stamp program is a way to ensure that this happens. It is a means of maximizing eligibility, federal funding and supplemental food assistance. Maximizing these opportunities, pursuant to eligibility guidelines and federal policy, makes sense.
On behalf of a religious institution that emphasizes human dignity and a preferential option for the poor, and that provides a substantial commitment of ministry and resources to human and social needs, the Nebraska Catholic Conference has consistently, and for a long time, advocated that meeting the subsistence needs of the poor should be a public-policy priority. A person’s inherent need for, and basic right to, an adequate diet in order to sustain life makes this an important matter of social justice.
From our perspective, the objective and benefits of this policy direction clearly outweigh whatever drawbacks there might be. LB 586 is worthy of your support and of consideration by the full Legislature.
Thank you for your attention.
Testimony in Support of LB 598
TO: SENATOR DAVID LANDIS, Chairman
MEMBERS of the LEGISLATURE’S REVENUE COMMITTEE
FROM: James R. Cunningham
DATE: February 04, 2005
Senator Landis and members of the committee, the Nebraska Catholic Conference, the public-policy office representing the mutual interests and concerns of the Archdiocese of Omaha and the dioceses of Lincoln and Grand Island, supports LB 598 and urges that it be advanced to General File.
As a religious body that emphasizes human dignity and strong family life, and provides a substantial commitment of ministry and resources to human and social needs, the Nebraska Catholic Conference has consistently, and for a long time, expressed the view that state support for substance abuse treatment is vitally important, certainly important enough to warrant an increase of revenue support as proposed by this bill.
Substance abuse is a damaging illness. In addition to the damage it does to body and mind, and to personal, social and occupational relationships, it also has devastating effects on family life. It is a family illness. It is also often co-occurring with mental illness, criminal conduct and other behavioral problems. This bill addresses a family-life issue of great significance. On that basis, these measures are worthy of your support.
While the economic costs of substance abuse, with respect to lost production, property damage and health and welfare expenditures, are demonstrably high, the human costs are even higher. The extent to which substance abuse is a source of family suffering, deprivation and violence cannot be captured by statistical measurement.
Fortunately, substance abuse is no longer regarded as a “moral failure” to the extent it once was. Rather, it is seen as an illness, and more importantly, an illness that is treatable and preventable. This makes treatment and a continuum of services for those who suffer from this illness compelling needs and a legitimate priority.
Treatment and services for substance abuse constitute an endeavor for which the public-private partnership has operated successfully. Assuming reasonable increases in the taxes imposed on alcoholic beverages and the allocation of additional funds, this partnership can continue, for the benefit of the common good of all Nebraskans.
This bill represents a real opportunity to improve the human condition, a worthy objective indeed for public policy. Again, we urge you to advance this legislation to the full Legislature for full and fair debate. Thank you.
James R. Cunningham
Executive Director
Testimony in Support of LB 752
From: Greg Schleppenbach, Director of Pro Life Activities, Nebraska Catholic Conference
Date: March 10, 2005
Senator Bourne and Members of the Judiciary Committee:
My name is Greg Schleppenbach. I am speaking on behalf of the Nebraska Catholic Conference in my capacity as Director of Pro Life Activities. The Conference, which represents the mutual, public policy interests and concerns of the three Catholic dioceses in Nebraska strongly supports LB 752
The three trials last year (in New York, Nebraska and California) challenging the constitutionality of the federal ban on partial-birth abortion featured not only gruesome detail about the various abortion methods, they included expert testimony about fetal pain. In his ruling issued on August 26, U.S. District Judge Richard C. Casey summarized this testimony as follows:
A D&X procedure [partial-birth abortion] may subject fetuses beyond twenty weeks' gestational age to "prolonged and excruciating pain." Because the density of receptors is greater in the fetal skin at about twenty weeks of gestation, and because the mechanisms that inhibit and modulate the perception of pain do not develop until after thirty-two to thirty-four weeks' gestation, there was testimony that a fetus likely feels severe pain while the procedure is being performed. . . When questioned about whether they spoke to their patients about fetal pain, Plaintiffs' answers ranged from uncertainty about whether fetuses feel pain to a lack of caring on the matter. . . Most of Plaintiffs' experts acknowledged that they do not describe to their patients what the D&E and D&X [partial-birth abortion] procedures entail in clear and precise terms.
In the Nebraska trial, Dr. Kanwaljeet Anand testified that he and the “vast majority” of medical professionals “familiar with this area of research…do believe that the fetus has the capability of pain perception” by 20 weeks of gestation. Dr. Anand is Director of the Pain Neurobiology Laboratory at Arkansas Children's Hospital Research Institute.
In addition to his testimony about the presence of physiological structures necessary to feel pain, Dr. Anand also testified about fetal research that has been conducted to measure physiological responses to pain stimuli to determine if the unborn feel pain. He cited research documenting increases in heart rates, blood flow and release of stress hormones—characteristics of those in pain—in response to painful stimuli in unborn children as early as 16 to 18 weeks gestation.
Not only does the unborn child feel pain, Dr. Anand noted that studies in premature infants reveals that the unborn are “more sensitive to pain than the full term infant.” “In fact,” he said, “some types of pain [have] three times greater sensitivity in the pre-term baby as compared to the full term neonate.” The doctor said that an unborn child has the greatest sensitivity to pain between 20 and 30 weeks gestation.
It is also worth noting that an unborn child has less legal protection from feeling pain than commercial livestock. The federal Humane Slaughter Act deems the slaughter of animals to be legally humane only if the animals be “rendered insensitive to pain…”
By contrast D & E abortions, performed as late as 24 weeks (well after the child begins to feel pain) involve the dismemberment of the unborn child by pair of sharp metal forceps. Installation methods of abortion (performed even in the third trimester) involve the replacement of up to one cup of amniotic fluid with a concentrated salt solution which basically burns the unborn child to death.
In neither of these techniques, nor with any abortion technique, is the unborn child provided with any form of pain medication. What an incredibly sad commentary on the moral sensibilities of our nation and on the human degradation that legal abortion has inflicted on our nation.
For these reasons, the Nebraska Catholic Conference urges you to advance LB 752 for debate and action by the full body of the Unicameral.
Testimony in Support of LB 760
March 16, 2005
From: James R. Cunningham, Executive Director, Nebraska Catholic Conference
Protection, Punishment, But Not Death
Senator Bourne and members of the committee, good afternoon. My name is Jim Cunningham. I am appearing in my capacity as executive director of the Nebraska Catholic Conference in support of LB 760. The Conference is a state-level association that represents the mutual interests and concerns of the Catholic Archdiocese of Omaha and the dioceses of Lincoln and Grand Island on matters involving public policy, under the direction of the Diocesan Bishops.
There have been in the past, and may yet be, misconceptions regarding the official position of the Catholic Church on the issue of capital punishment. Catholic teaching, as promulgated in the Modern Catechism, does not condemn the death penalty in principle. It is not regarded as intrinsically immoral. Public authority has a legitimate purpose in punishing criminals and the right and duty to defend human lives against aggression and to do what is necessary to protect public order and the safety of persons; this does not in principle exclude recourse to the death penalty. However, Catholic teaching incorporates an extremely important caveat on imposition of the death penalty, and that is, if non-lethal means are sufficient to defend and protect public order and safety, then public authority must limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the inherent dignity of the human person. (The relevant paragraphs from The Catechism of the Catholic Church are attached to this testimony.)
In practical application, this teaching regarding the death penalty has become clearer in recent years; a new understanding has evolved. Much of this is due to the clear and energetic teaching efforts of Pope John Paul II. In his great and important encyclical, “The Gospel of Life,” the Pope formulated a standard for application of this teaching, a public-policy test for the death penalty, if you will. That test is this: is the death penalty absolutely necessary; that is, are there no other means to defend against aggressors, preserve public order and protect the safety of individual citizens and families? In analyzing this question of the death penalty from a worldwide perspective, the Pope himself responds that cases of absolute necessity are “extremely rare if not practically nonexistent.” If these cases are practically nonexistent on a worldwide scale, then certainly they could be presumed to be non-existent in the advanced society of the United States of America.
The Nebraska Catholic Conference has analyzed and considered LB 760 within this framework. In the collective judgment of the Conference, the response to the test of whether the death penalty is absolutely necessary is unambiguously no, of course not. The death penalty fails this rational, reasonable test. In this modern, technologically sophisticated age, in this developed society, means other than the death penalty are sufficient; the necessary conditions do not exist to justify its use. What’s more, in our culture, which too frequently resorts to death and violence as a response to social problems, as evidenced by the killing of millions of innocent human beings through abortion, imposing the death penalty when it is unnecessary to do so diminishes all of us even more and contributes even more to the growing disrespect for the dignity and value of human life. The death penalty, having failed the test of absolute necessity, offers the tragic illusion that we can defend life by taking life.
In their 1994 Pastoral Letter, “Confronting a Culture of Violence,” the Catholic Bishops of the United States stated, “Increasingly, our society looks to violent measures to deal with some of our most difficult social problems. Violence is not the solution; it is the clearest sign of our failures…. We cannot teach that killing is wrong by killing.”
We know and understand that many people have legitimate concerns and fears about violence and the frequency of serious crimes in our communities. As a society we need to do everything we can to deter, and respond promptly, to this violence that undermines a stable society. Furthermore, the needs of victims and their loved ones must be addressed; society must finds ways to support them, compensate them, and help them heal. However, much of the support for capital punishment, we believe, stems from a desire for revenge or from a desperate attempt to balance the terrible damage wrought by a capital crime. And such feelings are understandable in the face of brutal and senseless violence inflicted upon innocent people. Justice is a legitimate desire. However, justice cannot be achieved through vengeance. Vengeance is not a worthy human motive.
In the view of the Nebraska Catholic Conference, all Nebraskans personally and collectively face the challenge of turning away from the culture of death and toward a culture of life. This means addressing any and all ways in which killing is proposed as the solution to a problem. The Conference, through our affiliate program, the Bishops’ Pastoral Plan for Pro Life Activities, works for and encourages attitudes that are unconditionally pro life. Such attitudes are consistent in connecting opposition to abortion, euthanasia, homicide and the deliberate destruction of human embryos to the unnecessary use of the death penalty. We believe that being unconditionally pro life in this way leads to no other conclusion than that the death penalty should be abolished in Nebraska and replaced with imprisonment for life and provision for restitution, as proposed by this legislation. This would provide for punishment and adequate protection of society in a manner that more fully conforms with the inherent dignity of each human being and better corresponds to preserving and enhancing the common good.
We urge you to advance LB 760 to General File.
Thank you for your attention and consideration.
Written Testimony in Support of LB 769
January 25, 2006
From: Mitchell D. Rowley , Associate Director for Education Issues
The Nebraska Catholic Conference, representing the Diocese of Grand Island, the Diocese of Lincoln, and the Archdiocese of Omaha, strongly supports LB 769. We believe LB 769 is an appropriate way to acknowledge, and partially alleviate, the financial burden borne by parents who meet their compulsory education obligations by enrolling their children in state approved and accredited private, denominational, and parochial school systems.
Please include our letter of support for LB 769 in the official committee record. Thank you.
Testimony in Support of LB 810
TO: Legislature’s Revenue Committee
FROM: James R. Cunningham, Executive Director
DATE: January 25, 2006
Subject: LB 810—Establish State Earned Income Tax Credit
Senator Landis and Members of the Committee:
The Nebraska Catholic Bishops Conference supports LB 810 because it is a proven effective and socially just public policy that assists families often overlooked when fiscal policies are being considered. It would positively enhance the emphasis on moving welfare recipients into the labor force and help to ensure that Nebraska’s working families will not have to raise their children in poverty. It would provide additional income as work increases and welfare benefits decline; a wage supplement for people who work in low-wage jobs; a reduction in poverty among children; and significant income tax relief for working families in or on the edge of poverty.
The Conference several years ago adopted a position in support of earned income tax legislation here in Nebraska. This support is an extension of the support that the United States Conference of Catholic Bishops has consistently carried out at the Federal level for the enactment, implementation and promotion of the Federal EITC.
Thank you for your time and attention.
Testimony in Support of LB 944
TO: Legislature’s Health and Human Services Committee
FROM: James R. Cunningham, Executive Director
DATE: January 25, 2006
Subject: LB 944—Strike “Family Cap” Child Exclusion from the Welfare Reform Act
Senator Jensen and Members of the Health & Human Services Committee:
The Nebraska Catholic Bishops Conference supports LB 944, because it would repeal the harshest, most punitive and most unjustifiable component of Nebraska’s Welfare Reform Act: the family cap/child exclusion. This position is the same as we held, as supporters of just and authentic welfare reform, when this provision was enacted in 1994. We said then and are compelled to repeat it again today: by discriminating against a child solely because of the circumstances of his or her conception, this policy violates the child’s human dignity and the common good of assisting those in need without regard for where they live, their race or ethnicity, who their parents are, or what their parents did.
Our religious tradition yields to no one in a longstanding call for family values, personal responsibility, sexual restraint and fundamental morality. We teach and promote these values every day. However, we oppose the idea that an income-assistance program that is intended to help in meeting the basic needs of impoverished children should be manipulated for purposes of attempting to reform or modify adult sexual behavior. In our view it is unjust, as a matter of social and public policy, to single out these children and to withhold incremental income assistance on their account as punishment in an attempt to modify the sexual behavior of their parents or to teach a lesson in responsibility. The policy aims at the behavior of the parents, but strikes innocent, defenseless children, thereby perpetuating the poverty into which these children are born.
It is obvious that with the child-exclusion policy already impoverished families face a greater income deficit. Thus, the only assured result of this policy, which denies extremely modest incremental increases in cash assistance that are needed to support a child at a subsistence level, is to increase the hardship for impoverished children. Children suffer the most. The excluded child born while his or her mother was receiving cash assistance is punished and so is the child (or children) already born or conceived at the time that this assistance began. A key point to keep in focus is that AFDC is not a program established and designed to discourage poor women and poor families from having additional children. To regard it as such immorally weighs the lives of children in the scales of their parents’ poverty rather than by their individual dignity as human beings. As a matter of public policy, what possible justification can there be in demonstrating that children born into poor families can be taken deeper into poverty and can be discriminated against for the sake of a scheme to modify their parents’ behavior?
We also are concerned that the punitive nature of the child-exclusion policy can pressure a poor woman’s decision to turn to abortion rather than to carry her child to term. The welfare-eligible woman in this situation faces the financial penalty of giving birth to her child, and it is well established that abortions often are attributed to socio-economic reasons. In our view, an indeterminable number of poor women in Nebraska face the stark, unconscionable predicament of having to decide whether to allow their already impoverished family to sink even deeper into poverty or to abort their pregnancies.
From a strictly theoretical perspective, the “family cap” child exclusion may seem to relate to the goals of promoting self-sufficiency and reducing long-term welfare dependence. But at what human cost? At what cost in terms of respect for life and individual human dignity? The idea of testing theories of behavior modification at the expense of hardship for innocent, non-consenting children, both born and unborn, strikes us as being extremely difficult, if not impossible, to defend on ethical, social and public-policy grounds. Thus, LB 944 should be enacted to repeal this policy.
Thank you for your time and attention.
Testimony on LB 1248
DATE: 02/08/06
Senator Jensen and Members of the Health and Human Services Committee:
In my capacity as its executive director and registered lobbyist, I am presenting this testimony on behalf of the Nebraska Catholic Bishops Conference, representing the mutual public-policy interests and concerns of the Catholic Archdiocese of Omaha and the Dioceses of Lincoln and Grand Island. The Conference has a 36-year history of involvement and advocacy on issues relating to the health and welfare of Nebraskans and the common good. The Conference monitored the progress and enactment of LB 709 and since then has closely followed, both independently and in coalition with other organizations, the process that has moved through the development of a Medicaid Reform Plan to this point of proposed statutory re-codification and revisions.
It is difficult to determine and to feel confident about exactly what position to take on this proposed legislation. We find it troublesome in some respects, and for that reason do not feel that we can support it. On the other hand, it has many good components. As we stated to you in our letter dated January 3, Nebraska’s current Medicaid program is not without flaws, and there is no disputing that it is a major cost center for the State of Nebraska. What’s more, we appreciate and admire the effort and leadership that have been undertaken on this complex challenge of ensuring that the program continues to be both responsive to the health care needs of all eligible Nebraskans and financially sustainable, given the presumed reliability of projections into the future. From our perspective and many years of experience, the process itself has been among the most thorough, impressive and commendable ever undertaken.
Perhaps it would be better to take a neutral position on this bill or be indifferent toward it. However, this matter of reforming the Medicaid program, and the issues stemming from that, are too substantive and too important to not take a position.
Therefore, we have concluded that the appropriate and conscientious approach toward this bill is to register in opposition, on balance, due to concerns and lack of comfort regarding its ultimate impact on Nebraskans who are materially poor and vulnerable.
Ours is a religious tradition that considers access to needed physical and behavioral health care to be a basic human right. This right flows from the sanctity of human life and the inherent dignity that belongs to all members of the human family.
We are by no means alone in the view. Most, if not all, political and religious traditions of the western world likewise endorse access to needed health care as a basic human right. Good health is necessary to realize one’s human potential. Access to needed health care assures each person’s opportunity to achieve an optimum attainable state of health allowing him/her to function as a productive member of society and community. It is in the interest of society that its members have the best health possible.
It is the duty of government, as an instrument of common purpose, called to pursue the common good, to secure the basic rights of its citizens. If any policy or implementation of policy dictated or presumed by LB 1248 results in the loss of health care access by those now covered, eligible because of their circumstances of limited resources and little or no income, then this government not only will have failed its duty to secure the basic right to needed health care for these persons, but will have deprived them of a right. This is what we are concerned about, on balance.
Our foremost reservation about Medicaid reform as it is proposed by LB 1248, as well as other aspects of the reform plan, is that materially poor persons otherwise eligible for and covered by Medicaid, whether children, pregnant women, seniors or individuals with disabilities, will lose coverage or will face significant if not insurmountable barriers to obtaining needed health care; some, even if they remain eligible, may not be able to afford the co-pays and deductibles.
Many, probably most, of the policy changes imposed by this bill are not immediate threats to eligibility or benefits. Some, however, hold open the future to changes that could adversely affect access to health care for the materially poor. Our concerns and reservations focus on specific provisions of the bill that could ultimately constitute the bases for failure to secure the basic right to health care, including the following:
· The obvious goal of having, as a matter of state policy, a Medicaid program that denies any and all state entitlement to health care coverage pursuant to this program. This significant policy revision is reflected on Page 3, lines 22-24 and by numerous other provisions that strike all references to medical assistance as an entitlement. [Ironically, there is one, single entitlement specifically provided—lines 1-3 on page 18—and that’s an entitlement to notice of denial or discontinuation of eligibility and denial or modification of benefits.]
· The provision reflected at lines 13-14 on page 3 of the bill that asserts and establishes a policy that the Medicaid program is to “assist” eligible recipients—meaning those who qualify as materially poor—to access appropriate and necessary health care. It would be a more complete, stronger policy of securing the basic right to needed health care if the word “assist” were instead, “ensure” or even “provide.”
· The provision at lines 16-18 on page 7 of the bill, dictating that funding for the program must be based on an assessment of revenue and the competing needs of other state-funded programs, but obviously leaving out any reference to, or consideration of existing or prior levels of funding and, even more significantly, to the actual or projected needs of eligible recipients.
· The provision reflected as subsection (7) of Section 6, lines 14-24 on page 6, suggesting further modification or replacement of the defined benefit structure of the Medicaid program, consistent with denying any and all state-based entitlement to health care.
· The provision set forth at lines 7 through 17 on page 12 of the bill granting virtually unlimited administrative authority to require financial participation, limits on goods and services and conditions upon continued receipt of medical assistance.
· The provision set forth as subsection (3) of Section 8 on page 11, mandating that Medicaid coverage be “generally reflective of and commensurate with” group health insurance coverage. The implications and repercussions of this are quite uncertain.
In closing, we urge this committee to approach this legislation with all due caution and concern. There is a great deal at stake. If you agree that access to needed health care is a basic human right, which government has a duty to secure for its most vulnerable citizens, then as a policy maker you may be reluctant to support this legislation, unless some fundamental changes are made.
Thank you for your attention and consideration.
Testimony in Opposition to LR 254CA—Right of Privacy
Legislature’s Judiciary Committee, James R. Cunningham, Executive Director
February 23, 2006
Senator Bourne and Members of the Committee:
The Nebraska Catholic Bishops Conference, following discussion at its most recent meeting, decided to oppose this proposal to make privacy a specifically enumerated right in the Nebraska Constitution. Our opposition is based upon what we do not know and cannot reasonably ascertain about this proposed amendment, but also upon what we do know and can reasonably conclude about it.
One thing we know and can reasonably conclude is that this proposed amendment for the Nebraska Constitution is extremely broad and that the authority it would place in the state courts pursuant to this amendment would likewise be extremely broad.
Conversely, what we do not know and cannot reasonably ascertain is what the scope and/or contours of this amendment would be in relation to public and social policy. Neither do we know nor can we reasonably ascertain how far this would extend in application or what it would mean in terms of practical consequences.
Something else we do not know and cannot reasonably ascertain is why this broad constitutional amendment is necessary. What is the full extent, if there is any extent at all, of matters of privacy for which protection is not currently adequate? What will this protect that current public policy in Nebraska does not protect or could not protect through carefully crafted legislation?
Conversely, we do know and can reasonably conclude that this broad amendment would push a lot of issues and decisions into the courts; that it would be the abrogation of a significant amount of legislative authority to the courts.
In preparation for this hearing, I reviewed case-law annotations that accompany the right-of-privacy provision in the state constitutions of Alaska, California, Florida and Montana. I jotted down a list of the various subjects found to be implicated in one way or another with the right of privacy in these state constitutions. The list, which is not all inclusive, consists of the following: abortion, adoption, business records, criminal procedure, sexual conduct, possession and use of illegal substances, children, parental rights, professional-client privileges, possession of weapons, obscenity, pornography, campaign disclosure, confidentiality/disclosure of records, tax returns, medical treatment, assisted suicide, warrant less surveillance and blood tests.
We do not know and cannot reasonably ascertain how Nebraska courts would rule on particular cases involving these subjects, and others as well, which implicate a broad right of privacy. But we do know and can reasonably conclude that the ability of the Nebraska Legislature to respond in tailored ways to particular policy issues and needs, such as those listed, would be severely circumscribed by this amendment. And, we know that legislation pertaining to any subject that a state court would determine to fall within the scope of this broad amendment would be presumed to be unconstitutional, contrary to the normal rule of adjudication, and would survive this presumption only if the State would successfully carry a rigorous burden of proof, one of not just compelling state interest, but of direct infringement on the rights of others, or of ensuring public safety as long as there are no lesser means.
We also know, and obviously are concerned about the fact, that the right of privacy specifically enumerated in the constitutions of states previously mentioned has been the basis upon which state laws and policies regulating abortion have been struck down an unconstitutional, including informed consent (Florida), hospital conscience policy (Alaska), parental consent with judicial bypass (Florida, California), performance of abortions only by physicians (Montana) and limitations on public funding for abortion (California, Alaska). Undeniably this is a factor, but not the only factor, behind our opposition to LR 254CA and why we urge that it be indefinitely postponed.
Finally, we understand and appreciate that explicitly stating a right of privacy in the state constitution could have a significant emotional symbolism. However, as a practical matter it would place beyond the Legislature’s control responses to an indeterminable range of important issues affecting the common good.
Thank you for your time and attention.
