Oregon “Equal Rights Amendment” WAS about paying for abortions

by Sen. Doug Whitsett

The Oregon “Equal Rights Amendment” passed last November is being used with new bill SB 894 to mandate that health plans must pay for abortions. The abortions will be essentially free (no copay or deductible), at ANY stage of pregnancy and upon demand.

The Oregon Equal Rights Amendment was adopted last November when the people of Oregon passed ballot Measure 89 by a nearly a two-to-one margin.

The measure created and added Article 1, Section 46 to the Oregon Constitution. That section states that “equality of rights under the law shall not be denied or abridged by the state of Oregon or by any political subdivision of the state on account of sex.” The Measure further authorized the state Legislature to enforce that provision through appropriate legislation.

During the campaign, I warned that the adoption of this amendment, as written, could likely require the state to mandate that government-funded health plans must pay for abortions. I based my conclusion on the 1998 New Mexico Supreme Court decision that nearly identical language in that state’s Equal Rights Amendment required the state to essentially pay for abortion on demand.

The Court reasoned that only women can become pregnant and that the Amendment made women a class of citizens. Therefore, any restriction on the termination of a pregnancy would affect only that protected class of citizens and would be unconstitutional under the Equal Rights Amendment.

Last week, Sen. Elizabeth Steiner-Hayward (D-Beaverton), an Oregon family physician, and 28 other Democrat legislators co-sponsored Senate Bill 894. Section 1, subsection (15) of that bill finds that “restrictions on abortion coverage interfere with a woman’s personal decision-making, her health and well-being and her constitutionally protected right to safe and legal medical procedures.”

My understanding of SB 894 is that it requires all private and public health insurance providers to offer essentially free abortions, at any stage of gestation, upon demand. This was confirmed to me by an attorney from Legislative Counsel. 

Section 3 (1) of the bill defines “health benefit plan” to have the meaning provided in ORS 743.730. That statute includes any person who provides health benefit plans in this state including (a) a licensed insurance company; (b) a health care service contractor; (c) a health insurance maintenance organization; (d) an association or group of employers that provides benefits; or (e) any other person or corporation responsible for the payment of benefits or provision of services.

Section 5 (2) further requires that a health benefit plan must provide payment or reimbursement expenses associated with preconception care, contraceptives, pregnancy care, childbirth, postpartum care, breast feeding support and supplies and abortion.

Bill states no copay or deductible for abortions

The bill continues at Section 3 (2) to state that the coverage under a health benefit plan for services or drugs to terminate a pregnancy may not (a) impose a copayment or coinsurance amount that exceeds 10 percent of the cost of the service or drug; or (b) be subject to a deductible.

Section 7 further requires the care and services prescribed by the Oregon Health Authority must include preconception care, contraceptives, pregnancy care, postpartum care and supplies and breastfeeding support, and abortion.

Section 9 of the bill declares an emergency to exist, causing the Act to take effect on its passage. Of course, this provision is meant to prevent the people of Oregon from referring the Act to the people to decide.

SB 894 is being called the Comprehensive Women’s Health Bill. Supporters claim that it provides clarity that the federal Affordable Care Act mandates that insurance carriers must cover the full range of reproductive health services. Further, they claim that SB 894 fills in the gaps in existing Oregon law to insure that women have access to all reproductive health services.

To clarify, the “gap” that this bill serves to “fill in” is abortion upon demand at any stage of gestation.

One would be very hard-pressed to recall any of these matters having been brought up during the campaign to pass Measure 89. Discussion of the potential unintended consequences of the Equal Rights Amendment would have complicated efforts by supporters and proponents of the measure to convince voters that it was a benign measure meant only to ensure gender equality.

Over 40 years after the U.S. Supreme Court ruled in the case of Roe vs. Wade, abortion remains an extremely divisive political issue. The decades since its mandate have done little to change the very strongly felt opinions among millions of Americans that abortion is fundamentally and morally wrong. Many feel that it is not right to force them, through their tax dollars, to pay for procedures that they object to so strongly. Moreover, they feel equally strongly that they should not be required to pay higher private insurance premiums in order to help pay for abortions by others.

The passage of Measure 89 and the introduction of SB 894 will do little to settle the longstanding debates regarding abortion. They may, in fact, cause further dissention and angst among Oregonians on both sides of the debate.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls