Pamplin Media Group – OPINION: A New Threat to Oregon’s Legislative System

Richard Botteri: “State agencies can now drop policies they disapprove of even if mandated by legislation…”

The Oregon Health Authority and the Oregon Medical Board decided to temporarily repeal part of the Oregon law passed by voters in 1994.

The provision is the requirement that people seeking to use Oregon’s physician-assisted suicide (PAS) law be residents of the state. A patient can prove residency through, for example, Oregon voter registration, an Oregon driver’s license, owning or renting Oregon property, or paying Oregon taxes. ‘Oregon.

Before the assisted suicide law was passed by the people, one argument against the concept was concern that the law would invite many nonresidents to come to Oregon to engage in assisted suicide. Proponents have sought to refute this argument by inserting the residency requirement into the bill.

The residency requirement was a selling point considered by voters. This was evident in many voters’ decision to endorse the statute. The rule is repeated in the PAS laws of seven other states and Washington, D.C.

Now the authority and council have decided to drop the requirement and will no longer enforce it. Their position stems from the fact that they were named in a lawsuit in federal court that argued the residency requirement is unconstitutional.

The argument is that the rule denies out-of-state individuals a privilege that Oregonians have. Some doctors have argued that the law prohibits them from providing suicide services to residents of southern Washington. (No Washington residents were party to the case.)

The lower court never ruled on constitutionality. State agencies simply gave up. The agencies were in favor of repealing the rule, otherwise they would have fought the case. The constitutional question will never be considered by the Federal District, the Courts of Appeals or the Supreme Court of the United States.

The agencies say they settled after receiving advice from the Oregon attorney general. The Department of Justice did not disclose its opinion. He represented the agencies and helped negotiate the settlement.

As part of the settlement, authorities will ask the Oregon Legislature to repeal the provision. The Legislature is not expected to reconvene until January 2023. Regardless of what the Legislature may do then, several Washington residents will cross the Columbia River to avail themselves of Oregon’s assisted suicide system, unlike the decision of Oregon voters.

The question is not the wisdom of the residency requirement. But how can the Attorney General easily point out that such a requirement is unconstitutional? No non-resident has joined the lawsuit and made such a claim. The United States Supreme Court ruled unanimously in Washington v. Glucksberg (1997), “The asserted ‘right’ to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause.”

The recent Oregon Supreme Court decision upholding our residency requirement to run for governor shows that residency rules are valid expressions of important state policies, especially when enacted by the people in an election. As the agencies half-heartedly acknowledge, repeal of the rule is a function of the legislature.

This development threatens the legislative process whether for laws voted by the legislative body or by the people within the framework of the process of initiative. Oregon state agencies can now drop policies they disapprove of, even if mandated by law, simply by acceding to a friendly lawsuit challenging the policies, without full judicial review.

Richard Botteri is a retired lawyer and election expert. He lives in Raleigh Hills.

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