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Wyant v. Myuers11/28/2003
En Banc
On petitions to review ballot title.
Submitted on the record August 19, 2003.
Ballot title referred to the Attorney General for modification.
In this consolidated ballot title proceeding under ORS 250.085(2), petitioners contend that the Attorney General’s ballot title regarding Initiative Petition 40 (2004) does not comply substantially with the requirements of ORS 250.035. See ORS 250.085(5) (describing that standard for judicial review of ballot title). Initiative Petition 40, if adopted, would amend ORS 677.097, which now requires a physician or podiatric physician and surgeon to disclose certain information to a patient to obtain the patient’s informed consent to a procedure or treatment. The amendment, if adopted, would require a “health care provider” to make additional disclosures and fulfill new procedural duties if the patient is “ ny woman seeking an abortion * * *.” Appendix A to this opinion sets out the text of Initiative Petition 40. For that proposed measure, the Attorney General certified the following ballot title:
“REQUIRES MEDICAL PROVIDERS MAKE SPECIFIED STATEMENTS TO PATIENTS BEFORE ABORTIONS, REPORT COMPLIANCE; REQUIRES INFORMATION PUBLICATION
“RESULT OF ‘YES’ VOTE: ‘Yes’ vote requires medical provider to: provide specified statements to patient 24 hours before abortion, report compliance; requires state to publish specified information about abortions.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current law requiring medical provider to obtain patient’s informed consent to abortion after explanation of risks and alternatives; retains current statistical reporting.
“SUMMARY: Current law requires physician to: obtain patient’s informed consent for abortion by explaining in general terms the procedure, risks, alternative treatments/procedures; provide more information on request. Measure requires medical provider to have conversation with patient at least 24 hours before abortion about abortion risks, gestational age of fetus, medical risks of pregnancy. Requires provider, before abortion, to: make specified statements about medical benefits, child support; receive patient’s written certification indicating statements were made. Expands current reporting requirements to include whether and how statements were made to patient. Requires state to print and place on website specified materials containing: specified information about abortion, services available for pregnancy, childbirth, care of children; showing visual representations of fetuses. Provides no funding for additional state duties. Other provisions.”
We have examined the contentions of petitioner Wyant regarding the Attorney General’s ballot title and conclude that none is well taken. An opinion explaining in detail the basis for that conclusion would not benefit the parties, the bar, or the public. However, for the reasons explained below, some of the arguments that the Nichols petitioners advance are well taken and require a modification of the ballot title that the Attorney General has prepared.
OREGON’S LAW OF INFORMED CONSENT
A brief discussion of the law of Oregon regarding “informed consent” is necessary for a proper understanding of the dispute presented here. As a general matter, the phrase “informed consent” refers to a physician’s duty to inform a patient of the health risks involved in a proposed medical procedure and the availability of feasible alternative procedures. This court held in Mayor v. Dowsett, 240 Or 196, 233, 400 P2d 234 (1965), that a physician’s failure to obtain a patient’s consent before performing an operation “would * * * be a violation of the esta
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