Oregon News

Voters may decide constitutional protection for abortion, gay rights

Oregon Capital Bureau

If the Legislature’s majority Democrats get their way, Oregon voters will decide in November 2024 whether the Oregon Constitution should protect abortion, reproductive and gender-affirming health care.

It also would remove 20-year-old language, now unenforceable under current federal court rulings, defining marriage as the union of one man and one woman.

Democratic leaders on Wednesday unveiled the proposed constitutional amendment in the form of Senate Joint Resolution 33, which would be referred to voters in the general election of Nov. 5, 2024. The resolution requires only simple majorities in both chambers.

Senate President Rob Wagner said the ballot measure was prompted by the uncertainty created by the 2022 decision of the U.S. Supreme Court to overturn abortion as a federal constitutional right and return the issue to states. One of the concurring justices said its reasoning could be applied to other issues, such as marriage by same-sex couples that the high court upheld in 2015.

During a meeting with reporters, Wagner said:

“If you are seeing what is going on in this country right now, I can’t go to a town hall or out into my community without people asking me what I am doing to protect the rights of Oregonians — whether it’s a right to legal marriage, regardless of how you identify, or whether you have access to reproductive health care services. That’s beyond passing a statutory bill that codifies those.”

Abortion history

Oregon is the only state with no restrictions on abortion, such as waiting periods, among the states that permit it.

Oregon lawmakers in 2017 passed and then-Gov. Kate Brown signed the Reproductive Health Equity Act, which ensured access to abortion and other reproductive health care. Oregon lawmakers repealed criminal penalties for abortion in 1969 — four years before the U.S. Supreme Court declared it a federal constitutional right in Roe v. Wade — and began state funding of abortions in 1977, the year after Congress restricted federal funds for most abortions.

Oregon voters rejected six ballot initiatives between 1978 and 2018 to ban or restrict abortion. Republican legislative majorities did approve a requirement for parental notification involving minors in 1999 — but Democratic Gov. John Kitzhaber, a physician, vetoed it.

The 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization has prompted a legislative work group to draft a new bill to safeguard access to both reproductive and gender-affirming health care. House Bill 2002 is scheduled for a vote of the full House on May 1. Every Democrat on the joint budget committee voted for it on April 14 — and every Republican on the committee voted against it.

Same-sex marriage

In that same decision, Justice Clarence Thomas said that returning the issue of abortion to the states could be applied to marriage by same-sex couples — contradicting a statement in the opinion written by Justice Samuel Alito. The high court held in 2015, both Alito and Thomas dissenting, that bans on same-sex marriages violate the federal constitutional guarantee of equal protection of the laws.

Oregon voters approved such an initiative in 2004, when all 11 states where it was on the ballot passed it, to define marriage as the union of a man and a woman. The state constitutional amendment in Measure 36 effectively negated a legal challenge pending before the Oregon Supreme Court.

The state restriction, however, was itself negated in 2014 — one year before the U.S. Supreme Court weighed in — when a U.S. District Court judge, Michael McShane, declared that it violated the federal constitutional guarantee of equal protection.

“I think that (definition) is not an honest reflection of who Oregonians are anymore,” Wagner said. “I think it’s perfectly appropriate for us to go ask the voters whether we honestly believe that we are a state that feels it’s OK, regardless of where (Justice) Alito drew the line in Dobbs, whether we think Oregon should protect the right to marriage.”

Advocates of same-sex marriage took some preliminary steps toward a 2014 ballot initiative to repeal the 2004 ban. But they dropped the effort after they won in U.S. District Court.

“We want to be sure Oregonians are protected should the Supreme Court reverse its long-held positions on these issues,” Sen. Elizabeth Steiner, a Democrat from Northwest Portland, told reporters at the same event. “The vast majority of people in the United States, regardless of political affiliation, support marriage equality. Marriage as one man and one woman — that is not who we are, so we need to take it out.”

Oregon in 2007 barred discrimination based on sexual orientation and gender identity. A different law, also signed by Gov. Ted Kulongoski, created domestic partnerships for same-sex couples with many legal rights similar to those for opposite-sex couples.

Weighing in

Among the groups pledging support for the proposed constitutional amendment were the American Civil Liberties Union of Oregon, Basic Rights Oregon — the state’s leading gay rights organization — and Planned Parenthood Advocates of Oregon.

Todd Addams, interim executive director for Basic Rights Oregon, said this in a statement:

“At Basic Rights Oregon, we hear every day from community members fearful about their futures. They see anti-trans and anti-queer legislation being passed in other states, and worry the same thing could happen in Oregon. That’s why we’re working to secure our rights in a constitutional amendment.”

Senate Majority Leader Kate Lieber, a Democrat whose district includes Southwest Portland and Beaverton, is the first lesbian to serve in that chamber. Her statement:

“This bill is personal. I know how it feels to live somewhere that doesn’t accept you for who you are. From bans on abortion to bans on medical care for transgender people, hate is on the rise across the country, and this is Oregon’s opportunity to respond with hope. We can make Oregon a healthier, safer, and more just place for everyone, and I could not be more proud to take part in this effort.”

House Majority Leader Julie Fahey, D-Eugene, said this in a statement:

“Every person should be free to make their own decisions about their own bodies, without political interference. As red states criminalize basic health care and fundamental rights, here in Oregon, we are working to protect those rights.”

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