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Wyant v. Myuers11/28/2003
and a variety of data about the abortion procedure and other matters. The notification would be required to occur within the timelines and by the methods of communication that the proposed measure specifies. The proposed measure declares that, except in the case of a medical emergency, for which the proposed measure requires a separate notification to the pregnant female, “consent to an abortion is voluntary and informed only if, at least 24 hours before the abortion, the female receives by telephone or in person the information required by this section pursuant to the process and in the manner set forth” in the proposed measure.
Third, the proposed measure does not disturb the civil liability of a health care provider who conducts a medical procedure without the patient’s informed consent. The proposed measure, if adopted, would render a pregnant woman’s consent to a non-emergency abortion to be involuntary and uninformed unless the health care provider who performs the abortion, a referring health care provider, or their agent gives a notice to the woman that complies in every respect with all the substantive and procedural requirements for such a notice that the proposed measure identifies. In legal terms, any failure of compliance by a health care provider with every substantive and procedural notice requirement that the proposed initiative describes would expose the health care provider, under Oregon law, to potential civil liability for medical malpractice. THE CAPTION
ORS 250.035(2)(a) requires a ballot title for a state measure to include a 15-word caption “that reasonably identifies the subject matter of the state measure.” This court has stated: “Because the caption is the cornerstone for the other portions of the ballot title, the caption must identify the subject matter of the proposed measure ‘in terms that will not confuse or mislead potential petition signers and voters.’ Mabon v. Myers, 332 Or 633, 637, 33 P3d 988 (2001).”
Kain v. Myers, 333 Or 497, 502, 41 P3d 1076 (2002).
The Nichols petitioners argue that an accurate caption must identify the proposed measure as a “prohibition” on abortion unless the medical provider complies with the new notification requirements regarding abortion that the proposed measure would add to the informed consent statute. As a description of the proposed measure’s subject matter, petitioners’ point is debatable. On the one hand, the proposed measure plainly contemplates a complete cessation of non-emergency abortion services to pregnant women during at least the 24-hour period following the required notification. Any physician who provided an abortion before expiration of the 24-hour waiting period following notification would face potential civil liability for malpractice due to the lack of informed consent. In a practical sense, and especially considering the perspective of the pregnant woman, those aspects of the proposed measure would operate to prohibit access to abortion services at least until the notification period expired.
On the other hand, the proposed measure, by amending the informed consent statute, heightens the physician’s risk of civil liability for noncompliance with the statute without imposing a specific prohibition on the act of performing an abortion itself. Because the proposed measure would affect a female’s informed consent to abortion –- a civil law concept –- questions exist about whether a female either may waive the statute or covenant to refrain from seeking its protection. We do not address those questions except to note that the proposed measure lacks any words of prohibition that might preclude a female’s attempt to sidestep the additional notification requirements.
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