NCC Testimony 2000

March 4, 1999

Senator Brashear, Members of the Judiciary Committee:

Good afternoon. My name is Jim Cunningham. I am the executive director of the Nebraska Catholic Conference and testify on its behalf. The Catholic Conference is a joint activity of the Archdiocese of Omaha and the Dioceses of Lincoln and Grand Island, through which, in a collegial and cooperative manner, they address mutual concerns involving public policy, under the direction of the Diocesan Bishops.

The Nebraska Catholic Conference is OPPOSED to LB 70, which would explicitly, statutorily enshrine and legalize not only assisted suicide, but also physician-administered killing; direct killing; active euthanasia. This bill is not about allowing people to die by ceasing treatment, but about deliberately and intentionally making people die through affirmative means. The prohibition against intentional killing is the cornerstone of law and of social relationships. This bill proposes to change that.

Long-standing doctrines of Christianity and Judaism proclaim that human life is a gift from God over which we have stewardship, but not absolute dominion. It is this fundamental and widespread belief which forms the basis for the general principle that we can never directly kill or intend to kill ourselves or another [outside the very narrow exception of self-defense, when such killing is a last resort] because life and the human person belong to God.

But even if one does not believe that life is a divine gift, it is at least the most basic and fundamental of the human goods which societies such as ours are established to protect. Life is basic because it is the precondition for every other human good and human right, including freedom. The claim that one should have a "right" to give up all of one’s rights--that one should be "free" to give up all of one’s freedoms--is logically and legally incoherent.

While our opposition is rooted in our religious faith, it also is based upon a number of very weighty public-policy considerations which, in and of themselves, establish a compelling rationale for rejecting this legislation.

Suicide is a direct contradiction of the inherent value of human life. It is a stark denial that life is good, and that each human being is unique and of an inestimable value. Legal and social acceptance of medical killing and assisted suicide would promote the idea that life is valuable only under some circumstances, and should be terminated when those circumstances are less than desirable. When killing is accepted as a solution to the problems of life--no matter how difficult they might be--society has relativized human life, and no longer has any bedrock upon which to build and to judge what is good.

LB 70 says, let’s alter the fundamental nature of our relationships at the end of our lives. What would be the social consequences of doing this? There are no reliable guides, but several concerns come readily to mind.

The temptation of persons with terminal illness or profound disability to give up on life or to reject the value of their lives--most often the result of depression or other forms of mental illness--is sufficiently powerful in and of itself. The social pressure and expectations that would be created by LB 70 would quickly validate this temptation, thus transforming the so-called "right to die" into a duty to die. This is true because civil law is perceived by most people as embodying what is good and desirable, prescribing what is to be pursued or avoided. The law is a great teacher. What you as lawmakers do in setting public policy is extremely significant. Legalizing medical killing and assisted suicide would place the state in a position of at least implicitly encouraging its citizens to consider suicide or euthanasia when confronted with circumstances which make life burdensome. The fact that people will value themselves less and will be seen by others as of less value when they begin to require significant care would be one of the most insidious and tragic consequences of this legislation.

Also not to be discounted or overlooked is the likelihood that legalizing medical killing and assisted suicide would set in motion profound and ominous changes in how our society will care for persons who are old, poor, disabled and vulnerable. Moreover, a New York State Task Force on Life and the Law, in 1994, studied this issue and, in part, concluded that lifting the prohibition against medical killing and assisted suicide would have a disproportionate and adverse impact upon the poor, the elderly, minorities, women and those without access to medical care.

LB 70 is bad and dangerous public policy not only for the social climate it would create, but also for the social response it would stifle. Once the option of eliminating the person--the subject of the problem--is accepted and enshrined in law, the motivation and urgency for pursuing the more difficult option of addressing the underlying problems will dissipate. The social incentives to treat the terminally ill with respect will be reduced. The present incentive to provide social support and compassionate care will erode if society can simply rid itself of the dying.

LB 70 would explicitly require the complicity of physicians. Members of the healing profession would be asked to blur or erase the fundamental distinction between healing and killing. This bill would initiate a major departure from a fundamental moral, ethical and medical principle that has been confirmed by societies for more than two millennia: the calling of medical caregivers to cure when possible, to care always, never to kill. The bill contradicts the basic vocation of the healing profession. Compassion would become the basis not for loving and caring, but for killing.

Started by LB 70, legalized medical killing inevitably will be further extended because the underlying notion cannot logically be limited. Contrary to what proponents of this idea claim, once society has accepted in principle that an individual has unfettered autonomy over the decision when and how to die, the circumstances permitting the use of that autonomy become arbitrary and cannot be limited in law. Why is a terminal condition more onerous than living in a radically limited way, e.g. living with the results of a severe stroke, or living as a quadriplegic? The only nation in the world--the Netherlands--to experiment for a number of years with legally permitted euthanasia has quickly moved from cases of terminal illness to those involving chronic conditions and even purely mental suffering. To suggest that a person has to be "terminal", that is, in the process of dying, in order to be medically killed simply begs the question. It is not the fact that the person is dying that is the issue. Rather, it is that a person finds no value in continuing to live. As a result if the law denies protection against killing the person whose life is qualitatively unacceptable because of terminal illness, then in principle the same denial of protection must be extended to other circumstances in which it is judged that life is no longer worth living.

In the end, the fundamental question is whether we are going to accept killing as a solution to the very serious problems of those who are most vulnerable, in order to spare the rest of us the burden of caring for them, or are we going to commit ourselves to help those who are suffering and dying to live as well as they can until natural death occurs? The latter approach is certainly the harder one to follow through on, but it is the only authentically compassionate and human response. The good news is that the latter approach is not an elusive ideal, but a reality given the existence of, and continuing advancement of, comprehensive palliative care, such as is embodied in the hospice movement.

Thank you for your attention and consideration.

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LB 1405 - Proposing to Prohibit Use of Fetal Tissue Obtained from Induced Abortions

February 23, 2000

Senator Brashear and Members of the Judiciary Committee:

My name is Jim Cunningham.  I appear in my capacity as executive director of the Nebraska Catholic Conference. The Conference, which represents the mutual, public-policy interests and concerns of the three Catholic dioceses in Nebraska, supports the concept embodied in LB 1405.

The Conference’s firmly held view is that the research and treatment use of fetal tissue procured from induced abortions is inappropriate, morally offensive and socially harmful conduct that should be prohibited as a matter of public policy.  We reach this conclusion for at least the following three reasons: 

• first, this use of fetal tissue, given the source of its procurement, involves an unmistakable, close and ongoing collaboration with active wrongdoing and is therefore wrong in itself; 
• secondly; there is an insurmountable problem involving the absence of informed consent by anyone who would rightfully act on behalf of the tissue donor; by its nature, this practice of retrieving tissue from aborted human beings fails to comport with the ethical and legal doctrine of informed consent and thereby weakens the doctrine to the detriment of sound public policy; 
• and thirdly, the State’s tacit approval and endorsement of the use of induced abortion as a source of fetal tissue, by virtue of its failure to prohibit the practice, promotes a utilitarian attitude and pragmatism that yield to the inevitable temptation of commercialization and to the development of an even greater manipulative and exploitative mentality regarding pregnancy and unborn human beings.

We understand the great importance of medical research and support it in a great many contexts, including many contexts involving human subjects.  Fetal-tissue research is not per se wrong or per se immoral as a violation of the sanctity of human life.  Certainly, there can be and are meritorious objectives and benefits of fetal-tissue research, including advancements in treatment of neurodegenerative diseases.  Our support for the policy intent of LB 1405 is not based on opposition to fetal-tissue research in its full sense; it is based on opposition to the deliberately chosen and implemented use of fetal tissue derived from induced abortions.  Research is not justified merely because it is undertaken with good intentions, praiseworthy objectives or desirable benefits.  Good intentions, praiseworthy objectives and desirable benefits can be subverted by immoral or unethical means.  In our view, this is what happens when fetal remains from induced abortions are used for research or treatment. The benefits do not justify the means.

Our position is based upon the premise that direct or induced abortion is an intrinsic evil, that is, wrong without exception.  The reason for this is that each direct abortion is an act of unjust killing, the victim of which, as established by irrefutable scientific evidence, is an innocent unborn human being.

Research or treatment using fetal tissue procured from induced abortion should be proscribed conduct because it necessarily involves complicity with the intrinsically evil act of abortion.  It is a close and ongoing association, a planned, predictable, coordinated, and systematic arrangement for the removal, timing, transfer and use of tissue harvested from an abortion. It is unmistakable collaboration with, and reliance upon, an abortion provider.  It is the sort of collaboration that infers and engenders approbation in a practice that not only destroys an innocent human being but also weakens respect for all human life.

Our second reason for supporting this public-policy proposal is that this conduct of obtaining tissue from induced abortion fails to comport with the doctrines of express consent for donating tissue and informed consent for use thereof.  To allow an ongoing process that ignores or manipulates these doctrines weakens them as a matter of public policy.

The problem in this context, as we view it, is that no guardian emerges whose consent would rightfully suffice to release the remains of the deceased unborn child for use in research.

The popular view seems to be that the woman for whom the abortion is induced is the donor because the tissue comes from within her body. But the flaw in this view is obvious because the tissue is from the body of another human being.  The unborn child has his/her own distinct humanity, with distinct genotype, blood, gender, etc.  Thus, clearly, the woman cannot give consent to the use of her offspring’s tissue in her own name, on her own accord.  In order to give consent, she would have to be acting as parent/protector of her offspring, that is, in the interests of her child.  However, surely public policy cannot look upon a parent who has deliberately chosen to have a child destroyed as fulfilling the parental role.  The decision to have an induced abortion was a decision not to be a mother in any sense and it decisively severed her relationship to the child.  Having abdicated the role of parent/protector, the woman for whom the abortion was induced is absent of capacity to give consent for donation and use of the deceased child’s remains.

The right to consent to the donation and use of the remains surely cannot fall to the abortionist, for the death itself has been the result of the abortionist’s deliberate act.  What’s more, the victim of that act never consented to it.

Surely it cannot be said that the State has authority of guardianship to consent to the donation and use of tissue from induced abortions.  If the State has agreed and arranged to consign to research the remains of those pre-born human beings who have been deliberately destroyed, that inevitably places the State in a position of patronage toward their destruction.  The State would, like the aborting woman, also be implicitly derelict in its protective powers.

Our third reason for supporting this public-policy proposal is that failure by the State to prohibit this conduct involving research and treatment use of fetal tissue from induced abortions promotes a utilitarian attitude and pragmatism that yield to the inevitable temptation of commercialization and to an even greater exploitative mentality regarding pregnancy and unborn human beings.  Simply put, ascribing beneficence to induced abortion can only further erode respect for human life.  In support of this rationale, we offer two examples:

In a concurring opinion to the final report of an NIH advisory committee on the topic of fetal tissue transplants, 10 members of the 21-member committee offered the view that government should consider performing abortions strictly for the purpose of providing fetal tissue, if for any reason the "supply" of abortions induced for other reasons turns out to be inadequate.

Also, at the 1992 Congressional hearings on the so-called "Freedom of Choice Act", law professor Lawrence Tribe used the following as one of his arguments in support of Congress’s authority to enact a far-reaching federal bill: if elective abortions are needed to provide a steady supply of helpful tissue for medical use, then any state restriction on abortion constitutes an infringement on interstate commerce in beneficial medical materials. At the level of public policy, Tribe was saying that the need for abortion tissue provides the moral and constitutional grounding for an entire federal policy of abortion on demand—not just for a particular abortion.

Our profound concern toward these issues is that by promoting an allegedly good purpose for induced abortion, the use of fetal tissue procured from this source bolsters cultural acceptance of abortion.  We believe that most Nebraskans do not want that to happen. We believe a great majority of Nebraskans desires a culture of life and not a culture of death.

The Nebraska Catholic Conference urges you to advance LB 1405 for debate and action by the full body of the Unicameral.

Thank you for your time and attention.

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Testimony on LB 819 - (Uniform) Health Facility Licensing Act

January 19, 2000

Senator Jensen and Members of the Health and Human Services Committee:

My name is Jim Cunningham. I testify in my capacity as executive director of the Nebraska Catholic Conference, the public-policy and public-affairs agency operated jointly and cooperatively by the three dioceses of the Catholic Church in Nebraska.

The Nebraska Catholic Conference is concerned about the way in which this legislation proposes to establish public policy governing visitation in care and treatment facilities. This concern is focused on Sections 44 through 46 of the latest rewrite that we have, AM2029.

We believe and fear that the proposed wording of these sections will inhibit the ability of members of the clergy to minister to the spiritual and religious needs of patients and residents of the regulated facilities.

Since the provisions are permissive with respect to certain specified contexts, they can be construed as setting specific parameters, which means they can be construed as being restrictive outside the specified parameters. To the extent they are not permissive, they are restrictive. What’s more, the fact that some parties, namely employees of the listed government agencies, are given unrestricted access infers that the access of all others is intended to be restricted. Moreover, since the provisions are silent with regard to members of the clergy, there is a potential that is even more serious than restricting clergy visits to certain specified hours and that is that these provisions could be construed as totally denying access for clergy.

It is vitally important that members of the clergy have access to care and treatment facilities that is as unfettered as possible. As a matter of public policy, visitation by clergy should not be restricted to normal visiting hours or business hours. Certainly, the types of situations which call for spiritual counseling, support and comfort--including, in the tradition of our faith, administering sacraments of the Church--can occur at any time, day or night, not just during normal visiting or business hours.

We believe our concern is valid, but also that it can be alleviated. Therefore we propose and request your favorable consideration of the following amendment.

Thank you for your attention and consideration.

LB 1417 - Human-Subject Research, Reporting on

February 9, 2000

Senator Jensen and Members of the Health & Human Services Committee:

The Nebraska Catholic Conference, representing the mutual interests and concerns of the three Catholic dioceses in Nebraska, supports the concept embodied in LB 1417.  Disclosure and legislative oversight are necessary and justified in order to protect the legitimate public interest in upholding human dignity.  One need look no further than the recent revelation that research relying upon fetal tissue derived from induced abortions has been and continues to be carried on by the University of Nebraska Medical Center to understand this interest.  Many Nebraskans were shocked and alarmed to find out that this practice has been going on for some time, pursuant to a planned, ongoing arrangement between the Medical Center and an abortion facility.

We understand the great importance of medical research.  We support it in a great many contexts, including numerous contexts involving human subjects.  However, clearly not all research is morally acceptable or justified.  This is why the Nebraska Catholic Conference, among others, has made clear our position that the use of fetal tissue from induced abortion is immoral and should be stopped. Research is not justified merely because it is undertaken with good intentions or praiseworthy objectives. Good intentions and praiseworthy objectives can be subverted by immoral or unethical means, of course, but also by secrecy and deception, whether real or perceived. Disclosure and legislative oversight, the goals of LB 1417, will help to mitigate public suspicion and distrust and will help to resolve public concern regarding fundamental human values.

As representatives of the citizens of this state, and as crafters of public policy, legislators need to know, and deserve to know, what is happening in our state regarding activity with such profound social, legal, economic and ethical implications as human-subject research. We urge you to make LB 1417 a part of the public debate by advancing it to General File.

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February 23, 2000

My name is Greg Schleppenbach and I am speaking on behalf of the Nebraska Catholic Conference in my capacity as Director of the Bishops’ Pastoral Plan for Pro Life Activities. The Nebraska Catholic Conference, representing the mutual interests and concerns of the three Catholic dioceses in Nebraska, urges you to support LB 1291. We believe that this bill accomplishes at least two important purposes. First, LB 1291 helps to ensure that women’s and parents’ right to be fully informed isn’t obscured or circumvented by individuals who may not have the woman’s best interests in mind. One need look no further than the information about Nebraska’s right to know laws promulgated by some of Nebraska’s abortion practitioners to see their contempt for these laws. Second, the bill legitimately implements the stated will of this Legislature and the people of the state of Nebraska "to provide protection for the life of the unborn child whenever possible."

Nebraska’s will favoring childbirth is explicitly legitimized through federal jurisprudence. The U.S. Supreme Court said in Webster v. Reproductive Health Services that individual states have the authority "to make a value judgment favoring childbirth over abortion" (492 U.S. 490, 1989). It is the proper role of government to safeguard and support all human life, not to facilitate, or be ambivalent toward, its destruction. This bill is not only a legitimate and good expression of government’s proper role, it is the right thing for a caring society to do.

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February 16, 1999

LB 1136 - Elementary and Secondary Scholarship Assistance Act

FACT SHEET

The purpose of this act is to provide a limited tax credit to individuals and business entities for contributions they make to non-profit organizations that use the funds contributed to provide scholarships to enable children to attend nonpublic elementary and secondary schools in Nebraska. The credit is allowed against the taxpayer’s Nebraska State income tax, the Nebraska premium tax if the taxpayer is an insurance company, or the franchise tax imposed on financial institutions.

The amount of the credit is limited to $500 per tax year per taxpayer. If the taxpayer’s tax liability is less than the amount contributed, the excess contribution can be carried forward for up to five consecutive years and applied against future tax liabilities. To qualify for the credit, the contribution cannot be designated for the direct benefit of any dependent of the taxpayer, and the credit is in lieu of any tax deduction otherwise available for a charitable contribution of this type.

To qualify for the credit, the contributions must be made to an organization that is exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code. The organization must allocate at least 90% of it annual revenues for scholarships to help children attend any qualified school of their parents’ or legal guardians’ choice. A qualified school is defined in the act as any nonpublic elementary or secondary school in Nebraska that does not discriminate on the basis of race, color, or national origin and that satisfies the requirements prescribed by law for the legal operation of nonpublic schools in this state. The scholarship organization must apply to the Department of Revenue for certification to ensure that its scholarship program satisfies these requirements.

Statewide, 12.8% of school-age children are educated in nonpublic schools (42,736 out of a total of 333,872). However, the percentage varies significantly by county. For example, the percentage of children educated in nonpublic schools is:

The above information comes from the Nebraska Department of Education’s publication "Statistics and Facts about Nebraska Schools 1998-1999".

The parents of children attending nonpublic schools in Nebraska have been providing tax relief for the rest of the state’s taxpayers for many years. These parents are supporting the public schools through their own tax payments while saving the state and local political subdivisions millions of dollars each year by enrolling their children in nonpublic schools. At the current time, the state and its political subdivisions spend in excess of $1.6 billion dollars per year educating children in the public schools at an average cost of over $5,500 per child. If the 42,000+ children educated in nonpublic schools were enrolled in the public schools, additional tax revenues in excess of $230 million dollars would be needed each year to maintain the same per-pupil spending levels. Just imagine the impact on the local property tax and state-aid to education if the 32% of Platte County children enrolled in nonpublic schools suddenly enrolled in the public school system.

Currently, the only direct state support for parents who choose nonpublic schools for their children’s education is the textbook loan program. The current appropriation is $349,225. This averages out to about $8.17 per child. A typical elementary textbook costs $30, a typical secondary textbook costs $50.

A modest tax credit for education expenses or scholarship assistance could mean so much for the many parents who choose, or would like to choose but cannot afford, nonpublic schools for their children’s education. A modest tax credit would help perpetuate the tremendous tax relief that results when parents enroll their children in state-approved and accredited nonpublic schools.

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LB 914 - Welfare:  Child-in-Care Age, Extend Exemption from Mandatory Self-Sufficiency Activities - February 10, 2000

Senator Jensen and Members of the Committee:

The Nebraska Catholic Conference, a state level-agency operated by and acting on behalf of the three dioceses of the Catholic Church in Nebraska, wishes to be on record in support of LB 914, which proposes to extend to 12 months the exemption from mandatory participation in self-sufficiency activities for parents of babies. We view this as a necessary change in order to bring Nebraska’s welfare system more into line with the public-policy objective of supporting, stabilizing and enhancing the individual lives and development of young children and family life as well.

Support for this bill is consistent with our longstanding position on this issue having to do with the child-in-care age. Quite a number of years ago, when then-Governor Kerrey initiated administrative action to drop the mandatory child-in-care age from the federally permissible three years to one year, we publicly expressed our concern and opposition. In 1994 and 1995, when Nebraska’s current welfare system was being molded through LB 1224 and LB 455, the further reduction of the mandatory child-in-care age from 12 months to 12 weeks was one of the specific provisions that we opposed. And similarly, in written comments we submitted to the U.S. Department of Health and Human Services regarding Nebraska’s welfare-reform waiver request, what is now the current law was one of the provisions to which we objected.

We are not here to suggest that, under the system, which Nebraska has chosen to implement in the name of reforming welfare, mandatory participation in self-sufficiency activities is a bad thing. However, we firmly hold the view that such a State mandate must not distort other relationships in a person’s life, especially obligations and relationships within the family.

There are values at stake here that are not a function of income or rapid movement toward self-sufficiency, for example, the value of parenting. The mandate imposed under the current law tends to distort the relationship between work and the vocation of being a parent. The welfare system should allow flexibility for parents who believe more time at home is in the child’s best interests.

In some situations the most economically valuable contribution of the parent may be in caring for the infant. In addition, the mandatory policy that parents of infants go about the business of fulfilling their self-sufficiency contracts as soon as the infant is 12 weeks old presumes that quality, affordable infant care is available and accessible. With the well-being and development of infants at stake, that presumption is not well-enough established to be the basis for imposing such a mandate.

We urge you to include the provisions of LB 914 among your priorities for this session. It proposes a necessary and meaningful step toward improving Nebraska’s welfare system.

One other point regarding LB 914: we respectfully request that the committee consider using it to correct another major flaw in the welfare system. On page 9 of the bill, please strike lines 7 through 13. This would repeal the child exclusion policy, which is one of the most punitive aspects of Nebraska’s welfare reform program.

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