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Counties could be required to finance what was enacted by the legislature

Many bills this session have moved through both chambers on party line votes. However, with the Democrat Party in charge there has been little the Republicans have been able to do to stop legislation from moving into law.

SJR 12 introduced by Senator Elizabeth Steiner-Hayward (D–Portland) and Representative Rob Nosse (D-Portland) has been 16 years in the making and pays homage the late Rep. Mitch Greenlick. In 2005, Greenlick filed a petition for the “Hope for Oregon Families” ballot initiative. The HOPE for Oregon Families initiative if passed by the voters would have added Section 46 to Article 1 of the Oregon Constitution stating that: Health care is an essential safeguard of human life and dignity and there is an obligation for the state to ensure that every Oregon resident has access to effective and affordable health care as a fundamental right.

Although it failed to make the ballot it did spark a movement to provide healthcare for all in Oregonians which has partially been adopted through the passage of Cover Oregon, the Federal Affordable Care Act, and the Oregon Healthy Kids program. Since then, several attempts have been made to pass similar legislation onto the voters for approval. Each of those measurers failed in the legislature despite the Democratic party having control of the House, the Senate and the Governor’s office. During the House floor debate Rep. Brock-Smith (R-Port Orford) reminded his colleagues that “This is not the first time this bill has appeared in this chamber and I think it needs to be said that, with all due respect to the late Representative Greenlick and his body of work for all Oregonians, we have not passed this bill because it is not a good bill and his passing does not make the bill any better”.

However, this time the majority party pushed it over the finish line and SJR 12 is headed to the voters in November. They will now decide if Section 1 of the Oregon Constitution should be changed to ensure that every resident of the state has access to cost-effective, clinically appropriate, and affordable health care.

If approved by the voters, the aspirations of the resolution will then need to be codified into law by the Legislature. In her remarks during the Senate Floor vote, Senator Steiner Hayward stated “It will require substantial action on the part of this legislature, in consultation with a wide range of experts, to determine the best way to fulfill the requirements put forward in this constitutional amendment. Those legislative actions will then be evaluated as part of the process for their costs and how they will be paid for. In other words, it is aspirational until it is passed by the voters, then it becomes the obligation of the legislature.

Representative Christine Drazen (R-Canby) agreed that sending it to the voters under Section 1 of the Constitution it becomes an obligation of the state if passed. “SJR 12 is either aspirational or it is a right, it can’t be both” she stated to her colleagues during floor debate. “Upon passage it becomes an obligation of the state of Oregon to provide every resident of the state with access to cost-effective, clinically appropriate, and affordable health care” she concluded.



If approved by the voters, the Legislature will need to balance it with that of other existing obligations such as funding public schools and other essential public services. However, as noted by the Legislative Council, the state could also be responsible for right of action claims (lawsuits) against the state if they fail to meet that obligation. In their report they stated,

“If SJR 12 is adopted by the voters, the state could be subject to a lawsuit if it fails to satisfactorily implement each resident of Oregon’s fundamental right to access cost-effective, clinically appropriate and affordable health care. The text of SJR 12establishes a state obligation and a corresponding individual right. Further, Sen. Steiner Hayward (D-Portland) acknowledged that an action could be brought against the state”. The concluded that, “We believe a court would likely conclude that subsections (1) and (2) of section 47 (of the SJR 12) read together, along with the legislative history, create a private right that could be enforced in court and that the adoption of SJR 12 by the people constitutes a waiver of sovereign immunity.

In addition, if the voters approve the ballot measure generated by SJR 12, the Legislature could place the aspirational responsibility onto the counties, cities and other entities. Representative Cedric Hayden (R–Roseburg), who initiated the conversation with Legislative Council, told the members of the House that “It has been stated that this may not cost the state anything. I believe there is a loophole”. Again, he referred to the response from Legislative Council which stated,

“The Legislative Assembly would not be prohibited by the Oregon Constitution from enacting legislation to require county governments to establish and maintain health care delivery systems so that county residents can have access to cost-effective, clinically appropriate and affordable health care”.

They also concluded that counties could be required to finance what was enacted by the legislature if it passed the legislature by a 3/5 majority which would remove the unfunded mandate argument.

Many members of both chambers agreed that Oregon can do better when it comes to healthcare services for its citizens, but they disagreed along party lines that SJR 12 is the answer. The voters will now decide and if passed the Legislature will decide what access to cost-effective, clinically appropriate, and affordable health care means, how to pay for it and what other services within he state budget may need to be reduced.

--Terese Humboldt

Post Date: 2021-05-19 07:59:20Last Update: 2021-05-19 18:36:15

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