Hawaii’s Department of the Attorney General says the state Senate improperly denied a person’s constitutional protected right to submit testimony for legislative hearings.

Such protections are covered by the petition clause of the First Amendment of the U.S. and Hawaii constitutions, Deputy Attorney General Robyn Chun wrote to state Sen. Breene Harimoto on March 29.

Harimoto requested the opinion after learning that the written testimony of a woman working for A Place for Women in Waipio was withheld from lawmakers and the public. The testimony contained personal information about another testifier who was critical of the organization.

Senate President Ron Kouchi, according to Harimoto, withheld the testimony over worries that its publication might violate federal law. Kouchi said Monday that the AG’s letter would not result in any immediate change of course by the Senate.

Senate President Ron Kouchi talks story with Breene Harimoto before the 2016 session began. On Friday, Kouchi shelved a proposal to change Senate rules regarding public testimony. Cory Lum/Civil Beat/2016

On its website, A Place for Women says it provides “crisis pregnancy support,” “limited ultrasounds” and “abortion healing.” It’s housed at the Calvary Chapel Pearl Harbor in the Waipio Shopping Center.

At issue is Senate Bill 501, which would require all “limited service” pregnancy centers like the one in Waipio to disclose “the availability of and enrollment information for” reproductive health services.

An earlier version of the bill identified as part of that information abortion services, but the latest version uses the words “pregnancy-related services.”

SB 501 is supported by the Hawaii State Commission on the Status of Women, Planned Parenthood Votes Northwest and Hawaii and the local chapter of the American Congress of Obstetricians and Gynecologists. It is opposed by religious organizations such as the Hawaii Family Forum, the Roman Catholic Church in the State of Hawaii and Mauka Makai Ministries.

Stacey Jimenez, director of operations for A Place for Women in Waipio, was among those submitting opposition testimony on SB 501. Her three-page letter was not posted publicly prior to the hearing and does not appear to have been posted since. Civil Beat obtained a copy from Harimoto.

Her testimony to the Senate Ways and Means Committee boiled down to this: “My religious beliefs and that of the church I serve adamantly hold that abortion is the killing of an innocent life.”

‘A Very Negative Picture’

But Jimenez also denounced the written testimony of Morgen Trube, who Jimenez characterized as painting “a very negative picture” of Trube’s own experience at A Place for Women in Waipio.

Jimenez’s testimony included excerpts from Trube’s exit survey. Jimenez said Trube described her visit as “very comfortable.” But Jimenez’s letter doesn’t say much more than that about Trube’s visit.

Trube’s own Feb. 23 testimony in support of SB 501 describes a far different experience.

Trube, a student in public health at Hawaii Pacific University, said she was pregnant when she visited the Waipio facility. She said she expected to get a free pregnancy test and an ultrasound.

“But instead I had to sit through coercive videos and stories before they would even consider giving me a test,” she wrote. “Once they gave me a test I then had to sit through another video before they gave me my results.”

Trube identified herself in her testimony as president of Planned Parenthood’s Generation Action, a network of campus activist groups, something that Jimenez noted in her own testimony that was withheld.

Trube wrote:

Everyone, including women, deserves not only access to health care, but to unbiased and factual care that is free of manipulative facts and tactics. All I wanted was somebody who could help me, but instead it felt like the only thing they cared about was the baby. It was never about my health, what I wanted for myself in life, or how I was feeling.

Trube said that in its testimony, A Place for Women Waipio improperly made some personal information about her public, even though she was under the impression it would remain confidential.

Harimoto, a member of Ways and Means and one of two members to vote against SB 501, said he was upset to learn that Jimenez’s testimony had not been posted on the Legislature’s website or shared with lawmakers.

He said he later learned that the testimony was withheld because it might violate HIPAA — the Health Insurance Portability and Accountability Act of 1996 — federal legislation that provides data privacy and security provisions for safeguarding medical information.

“I was very concerned,” said Harimoto. “I did not believe that we had the lawful ability to withhold testimony.”

The senator contacted the attorney general. Chun wrote back March 29, stating:

Assuming testimony is submitted in accordance with the Senate’s rules, the Senate is not authorized by the constitutions, statute or Senate rules to withhold, edit or redact the content of the testimony or to delay its distribution withhold infringing on those constitutional rights and should not do so unless the right to petition government is outweighed by some other overriding right. We do not see an overriding interest in the specific case described herein to warrant censorship of the testimony.

Chun also concluded that the Senate is not “a covered entity under HIPAA and is not required to comply with its privacy requirements.”

Nor is it responsible for the content of public testimony and so has claims against any immunity, Chun wrote.

Kouchi said Monday that “we are not just going to take the AG’s opinion and the conversation with Breene and go from there. What we agreed to do is to get together with our own attorneys, because Breene has asked (for an AG opinion) separate from us, like any member can.”

Kouchi said Harimoto — who he said was not aware of separate research done by Senate attorneys — would be part of that meeting, which he hoped would be held before the session concludes May 4.

“We will go forward based on that,” said Kouchi. “But, certainly, once Breene gave me the opening, there is an obligation to act on the information. We have an obligation to do it correctly.”

Decision-Making Challenged

Trube’s testimony remains on the Legislature’s website, as does opposition testimony from Chris Jimenez, administrative pastor at Calvary Chapel Pearl Harbor and Stacey Jimenez’s husband.

Ironically, Chris Jimenez cited constitutional protections to support his arguments against SB 501.

“As a faith based ministry, protected by the First Amendment which guarantees freedom of religion, it is a matter of religious principle that we oppose abortion,” Pastor Jimenez testified. “Thus, being forced to refer women to organizations that perform abortions is a violation of a fundamental Constitutional right, and we are prepared to challenge this law all the way to the U.S. Supreme Court.”

On Friday, Harimoto introduced a resolution calling for a change to Senate rules that would ensure all Senate committees publish all testimony.

“I wanted to make sure we did not get into the same thing again,” he said.

However, Kouchi deferred Senate Resolution 94 — that is, killed it — along with resolutions from Sens. Laura Thielen and Donna Kim.

Though the other two resolutions were not directly related to Harimoto’s — Thielen’s called for clarifying past practices regarding disclosure of the state’s budget and finances while Kim’s sought to make clearer how a bill should be referred to a committee — each measure effectively challenged the decision-making of current Senate leadership.

SB 501 passed the Senate 23-2 on March 7 (Harimoto again voting “no”) and awaits a full House vote Tuesday.

Read the attorney general’s opinion:

Read Stacey Jimenez’s testimony:

Read Morgen Trube’s testimony:

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