by Sen. Doug Whitsett
Article 1, Section 20 of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution already guarantee women, and all other citizens, equal rights under the law
Ballot Measure 89 is the Oregon Equal Rights Amendment for women.
It purports to amend the Oregon Constitution by adding a new Section 46 to Article I that guarantees “equality of rights under the law shall not be denied or abridged by the State of Oregon or by any political subdivision in the state on account of sex.”
I do not support the measure because it is not needed and adds duplicate and unnecessary language to our Constitution. Moreover, the measure may be construed by future Oregon courts to mandate the State to pay for abortions.
Article 1, Section 20 of the Oregon Constitution states that “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which upon the same terms, shall not equally belong to all citizens.” The current constitutional wording containing “any citizen or class of citizen” certainly includes citizens of any gender. However, the proposed addition of sex as a specific class of citizen, in the proposed new Section 46, may open the “equality” determination to sex-specific conditions such as pregnancy.
There is already legal precedence for this.
The state of New Mexico adopted an Equal Rights Amendment in 1973 that is very similar to the language proposed in Measure 89. That Amendment states that “Equality of rights under the law shall not be denied on account of the sex of any person.”
Planned Parenthood, NARAL and others brought a lawsuit claiming that the State ERA requires the state to pay for medically necessary abortions. The apparent logic of their claim was that women comprise a separate class of citizen that is capable of the condition of pregnancy. That pregnancy condition may require a medical necessary abortion. Therefore, to deny them a medically necessary abortion would be denying a medically necessary treatment to a class of citizens.
In a 1998 decision, the New Mexico Supreme Court agreed. The Court ruled 5-0 that the refusal to fund elective abortions violated the state’s ERA because it does not apply the same standard of medical necessity to both men and women. The court ordered the state to pay for medically necessary abortions.
It is my understanding that a medically necessary abortion is generally determined to mean an abortion performed by a licensed professional. For that reason, the New Mexico Supreme Court order essentially requires the state to pay for abortion on demand for women covered by Medicaid.
All Oregonians should want equal rights under the law for all citizens, and I support that. Both Article 1, Section 20 of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution already guarantee women, and all other citizens, equal rights under the law.
I will not speculate regarding the motives of those who proposed and are financially supporting Measure 89. However, Oregon voters should seriously consider the potential negative consequences of adopting the Equal Rights Amendment.
Because of all this, I urge a “no” vote on this unnecessary and potentially troubling proposed amendment to the Oregon Constitution.
Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls