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Wyant v. Myuers11/28/2003
tory requirements for the reasons that the Nichols petitioners advocate. SUMMARY
The summary is a “concise and impartial statement of not more than 125 words summarizing the state measure and its major effect.” ORS 250.035(2)(d). The purpose of the summary “is to help voters understand what will happen if the measure is approved, and * * * should * * * be worded so that voters will understand the breadth of its impact.” Fred Meyer, Inc. v. Roberts, 308 Or 169, 175, 777 P2d 406 (1989).
For the reasons expressed above, we reject the Nichols petitioners’ argument that the summary must tell voters that the proposed measure “would prohibit abortions in the absence of specified statements and a waiting period, even in the case of a medical emergency.” Nevertheless, for other reasons that the Nichols petitioners assert, the Attorney General’s summary is not accurate and requires modification.
The Attorney General’s summary purports to state current Oregon law as follows: “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.” ORS 677.097(2) provides in part that “ fter giving the explanation specified in subsection (1) of this section, the physician or podiatric physician and surgeon shall ask the patient if the patient wants a more detailed explanation.” (Emphasis added.)
The Attorney General’s summary contains an error regarding current Oregon law. The phrase “in general terms” is part of ORS 677.097(1)(a), but does not appear in subsections (b) or (c). The Attorney General’s summary indicates that the physician must explain "in general terms" each of the three items of medical information that ORS 677.097(1) sets out. However, the physician has an additional statutory duty to ask the patient if the patient wants a more detailed explanation than the one delivered under ORS 677.097(1). The Attorney General’s summary fails to disclose that duty. The Attorney General’s failure to refer in the summary to the physician’s responsibility to ask the patient whether she desires a more detailed explanation incorrectly indicates to a reader that the patient now receives an explanation in general terms and nothing more, unless she happens to request more information. The Attorney General must modify the summary to address that error.
The Attorney General’s summary indicates that the proposed measure would require the physician to deliver certain information in a “conversation” with the patient. The summary then describes other information that the physician must convey but fails to disclose that the proposed measure would authorize delivery of that information by means other than a conversation, such as by a tape recording.
The Attorney General asserts that petitioners resist any reference to a “conversation” in the summary. Additionally, the Attorney General acknowledges that the proposed measure authorizes the physician to deliver some statements through a tape recording under certain circumstances but that the Attorney General’s summary accurately reflects both provisions (i.e., those relating to notice by conversation and by tape recording).
The Attorney General’s arguments are wrong on both counts. The reference in the summary to notification by conversation for some components of the physician’s information, coupled with silence about permissible methods of communication regarding other information, creates the incorrect inference that the proposed measure either would require the physician to deliver the entire notification in a conversation with the patient or would say nothing about
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