Oregon’s Measure 111 could establish health care access as a constitutional right

By PETER WONG
Oregon Capital Bureau

Voters will decide in Measure 111 whether access to health care should be written into the Oregon constitution.

Other states have created legal rights, but Oregon’s proposal is one of a kind. It was referred to voters by the 2021 Legislature along party lines — most Democrats voting for it, except for then-Sen. Betsy Johnson, now an unaffiliated candidate for governor, and all Republicans against it.

Advocates liken it to an existing state constitutional guarantee for “a uniform and general system of common schools,” but the measure does not specify how that is to be achieved. Opponents say that is exactly why voters should reject it.

The measure also says that the state’s obligation for health care “must be balanced against the public interest in funding public schools and other essential public services.”

Measure 111, which is on the Nov. 8 general election ballot, was the focus of a City Club of Eugene panel discussion Oct. 14. The panelists appeared virtually, although the audience was live.

What supporters say

Sen. Elizabeth Steiner Hayward, a Democrat from Portland and a family practice physician, was one of two chief sponsors of the constitutional amendment. She said:

“We believe strongly that including the value of the right to health care in Oregon’s Constitution is the right next step in a state that has proven over and over again that Oregonians in every single county believe that every Oregonian has the right to access health care — affordable and good health care.”

Her reference was to the 2018 statewide vote that upheld a state tax on medical providers and some health plans, proceeds from which are used by the state to recoup more in federal funds for the Oregon Health Plan. The tax has been in existence since 2003, but critics got enough petition signatures in 2017 to force a statewide vote on it.

But like the constitutional provision for public education, Measure 111 does not specify any action for the Legislature to take to ensure “cost-effective, clinically appropriate and affordable health care.”

Steiner Hayward, also an adjunct associate professor at Oregon Health & Science University, said that is deliberate:

“It does not create a new tax. it does not create an individual right of action for people to sue. It does not create a specific single-payer plan for health care.”

Voters did approve a 2000 constitutional amendment that requires lawmakers to say why they did not fund public schools based on a model developed by the Quality Education Commission. Lawmakers never have reached that funding target, although a 2019 law called for a new corporate activity tax, which raises an estimated $1 billion annually for targeted school improvements under the Student Success Act.

The health-care-as-a-right proposal was originated by Mitch Greenlick, a professor of public health at OHSU and a Democratic state representative from Portland from 2003 until his death in May 2020. He led or co-led the House Health Care Committee from 2007 until February 2019.

Emerson Hamlin was an aide to Greenlick who now leads the Right to Health Care political action committee. Hamlin said there is a personal dimension.

“As a consumer of mental health services, by the time I was 20, I received care that had saved my life and been denied care that my doctors and I feel was needed. It was an incredibly painful and challenging experience that I don’t want anyone else to have to go through.

“I feel strongly that health care should be a right and everyone should get the health care they need, when they need it, and at rates they can afford. No one should have to go bankrupt accessing care. This measure shows what our values are and sets us on a path to reach them.”

What opponents say

Outgoing Rep. Ron Noble, a Republican from McMinnville, sat on the House Health Care Committee during the 2021 session. He said there is agreement on the value of health care, but Measure 111 offers no specifics on how Oregon should provide it.

“It’s not defined. It becomes a policy issue that is nebulous for somebody else to understand,” he said. “We open ourselves up to creating a bureaucracy that comes up with a policy decision for individual rights.”

For business, Noble said, a return on investment that is cost-effective could easily be defined as 80% or 90%.

“Yet if that is how we value health care, I am going to tell you that if your life or mine is on the line, a 20% chance of living is probably cost-effective,” he said.

Noble said people are still arguing the meaning of the Second Amendment to the U.S. Constitution and whether it applies to the organization of state militias or the right of individuals to possess firearms. (The U.S. Supreme Court decided on the latter interpretation in 2008, but also said some state regulations are permitted.)

As a retired anesthesiologist from Portland, and vice president of Physicians for a National Health Program/Oregon, Samuel Metz originally filed a statement with the state voters pamphlet in support of Measure 111.

But in the debate, Metz opposed it vigorously. He said voter approval of it could well block creation of a statewide single-payer system under which the government pays all health care costs, instead of the existing system of consumers, businesses and government.

“Single payer is the only working format that provides better care for more people for less money,” he said.

“This is not a foundation. It is not a stepping stone. It creates obstacles that may ironically render Oregon as the only state where single payer is prohibited.”

Metz is one of 19 members of the Legislature’s Joint Task Force on Universal Health Care, but did not speak for it.

No state has an operating single-payer system. Vermont approved one in 2011, but abandoned the attempt three years later. Metz said any tax that Oregon lawmakers came up with to help pay for it would be subject to challenge in the courts, even if the overall plan cost less than the current mixed system.

“We can imagine an opponent challenge that needed tax in the Oregon Supreme Court, contending that it imbalances state spending,” Metz said. “What would the court decide? I do not know — and I do not want to give the court an opportunity to answer.

“Measure 111 offers no benefit, only risks. In medicine, any risk is unacceptable if there is no benefit.”