
FILED: NOVEMBER 28, 2003  
IN THE SUPREME COURT OF THE STATE OF OREGON
DEBRALEE M. WYANT,
Petitioner,
    v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent,
    and
DR. MARK NICHOLS,
KITTY PIERCY, NANCY BENNETT,
and CAROLINE FITCHETT,
Intervenors.
DR. MARK NICHOLS,
KITTY PIERCY, NANCY BENNETT,
and CAROLINE FITCHETT,
Petitioners,
    v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(S50490; S50493)
(Consolidated for Opinion)
    En Banc
    On petitions to review ballot title.
    Submitted on the record August 19, 2003.
    Kelly W.G. Clark, O’Donnell & Clark, LLP, Portland, filed
the petition for petitioner Wyant.  With him on the petition was
Kristian Roggendorf.
    Katherine A. McDowell, Portland, and Jennifer E. Horan,
appeared for intervenors.
    Katherine A. McDowell, Portland, filed the petition for
petitioners Nichols, Piercy, Bennett, and Fitchett.  With her on
the petition was Jennifer E. Horan.
    Judy C. Lucas, Assistant Attorney General, Salem, filed the
answering memorandum for respondent.  With her on the answering
memorandum were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
    DURHAM, J.
    Ballot title referred to the Attorney General for
modification.
    DURHAM, J.
         In this consolidated ballot title proceeding under ORS
250.085(2), petitioners contend that the Attorney General’s
ballot title regarding Initiative Petition 40 (2004) does not
comply substantially with the requirements of ORS 250.035.
 (1)
See
ORS 250.085(5) (describing that standard for judicial review of
ballot title).  Initiative Petition 40, if adopted, would amend
ORS 677.097, which now requires a physician or podiatric
physician and surgeon to disclose certain information to a
patient to obtain the patient’s informed consent to a procedure
or treatment.  The amendment, if adopted, would require a “health
care provider” to make additional disclosures and fulfill new
procedural duties if the patient is “[a]ny woman seeking an
abortion * * *.”
         Appendix A to this opinion sets out the text of
Initiative Petition 40.  For that proposed measure, the Attorney
General certified the following ballot title:
“REQUIRES MEDICAL PROVIDERS MAKE SPECIFIED STATEMENTS
TO PATIENTS BEFORE ABORTIONS, REPORT COMPLIANCE;
REQUIRES
INFORMATION PUBLICATION
“RESULT OF ‘YES’ VOTE:  ‘Yes’ vote requires
medical provider to:  provide specified statements to
patient 24 hours before abortion, report compliance;
requires state to publish specified information about
abortions.
“RESULT OF ‘NO’ VOTE:  ‘No’ vote retains current
law requiring medical provider to obtain patient’s
informed consent to abortion after explanation of risks
and alternatives; retains current statistical
reporting.
“SUMMARY:  Current law requires physician to: 
obtain patient’s informed consent for abortion by
explaining in general terms the procedure, risks,
alternative treatments/procedures; provide more
information on request.  Measure requires medical
provider to have conversation with patient at least 24
hours before abortion about abortion risks, gestational
age of fetus, medical risks of pregnancy.  Requires
provider, before abortion, to:  make specified
statements about medical benefits, child support;
receive patient’s written certification indicating
statements were made.  Expands current reporting
requirements to include whether and how statements were
made to patient.  Requires state to print and place on
website specified materials containing:  specified
information about abortion, services available for
pregnancy, childbirth, care of children; showing visual
representations of fetuses.  Provides no funding for
additional state duties.  Other provisions.”
         We have examined the contentions of petitioner Wyant
regarding the Attorney General’s ballot title and conclude that
none is well taken.  An opinion explaining in detail the basis
for that conclusion would not benefit the parties, the bar, or
the public.  However, for the reasons explained below, some of
the arguments that the Nichols petitioners advance are well taken
and require a modification of the ballot title that the Attorney
General has prepared. 
OREGON’S LAW OF INFORMED CONSENT 
          A brief discussion of the law of Oregon regarding
“informed consent” is necessary for a proper understanding of the
dispute presented here.  As a general matter, the phrase
“informed consent” refers to a physician’s duty to inform a
patient of the health risks involved in a proposed medical
procedure and the availability of feasible alternative
procedures.  This court held in Mayor v. Dowsett, 240 Or 196,
233, 400 P2d 234 (1965), that a physician’s failure to obtain a
patient’s consent before performing an operation “would * * * be
a violation of the established standard of care and actionable as
malpractice.”  In Mayor, the court remanded the case for a jury
trial on the question of informed consent, because the evidence
was sufficient to create a factual question whether the defendant
doctor had informed the plaintiff before surgery of known dangers
from a spinal anesthetic.  Id. at 235.
         In Getchell v. Mansfield, 260 Or 174, 180-83, 489 P2d
953 (1971), the court clarified that the physician’s
responsibility to warn of risks extends only to material risks
with serious consequences, not to all possible risks. 
Additionally, the court required the introduction of expert
testimony to establish the materiality of the risk in question,
but relieved plaintiffs of any obligation to introduce expert
testimony that it is the custom of physicians in the locality to
give warnings in similar cases.  Id. at 183.
         In 1977, the legislature enacted ORS 677.097 to specify
the steps that a physician must take to obtain the informed
consent of a patient to a medical procedure or method of
treatment.  Or Laws 1977, ch 657, § 1.  The enactment of ORS
677.097 “codified the essence of the Getchell decision * * * with
some modification.”  Tiedemann v. Radiation Therapy Consultants,
299 Or 238, 247, 701 P2d 440 (1985).  ORS 677.097 currently
provides:
“(1) In order to obtain the informed consent of a
patient, a physician or podiatric physician and surgeon
shall explain the following:
“(a) In general terms the procedure or treatment
to be undertaken;
“(b) That there may be alternative procedures or
methods of treatment, if any; and
“(c) That there are risks, if any, to the
procedure or treatment.
“(2) After giving the explanation specified in
subsection (1) of this section, the physician or
podiatric physician and surgeon shall ask the patient
if the patient wants a more detailed explanation.  If
the patient requests further explanation, the physician
or podiatric physician and surgeon shall disclose in
substantial detail the procedure, the viable
alternatives and the material risks unless to do so
would be materially detrimental to the patient.  In
determining that further explanation would be
materially detrimental the physician or podiatric
physician and surgeon shall give due consideration to
the standards of practice of reasonable medical or
podiatric practitioners in the same or a similar
community under the same or similar circumstances.”
Failure to comply with the foregoing statutory requirements can
serve as a factual predicate for an action for malpractice.  See
Arena v. Gingrich, 305 Or 1, 7, 748 P2d 547 (1988) (court
remanded for trial negligence claim that physician violated ORS
677.097 by failing to obtain patient’s informed consent to
surgery).
PROPOSED CHANGES TO ORS 677.097   
         The proposed measure in this case would make several
additions to ORS 677.097.  Among other additions, subsection (3)
A of the proposed measure would require a “health care provider”
or a “referring health care provider” to give an expanded
notification to a female who seeks one particular medical
procedure:  an abortion.  The expanded notification obligation
would have both substantive and procedural components, which we
outline below.  
         The proposed measure would require notification not
only of the medical risks of the procedure, as under current law,
but also of the probable gestational age of the unborn child and
the medical risks to the female of carrying the unborn child to
term.  Subsection (3) A(2) of the proposed measure also would
require a health care provider to provide the required
information “in a conversation with the female in which the
female may ask questions[,]” and would prohibit providing the
information through a recording.  The proposed measure would
require that the notification precede, by at least 24 hours, the
performance of the abortion.
         Subsection (3) B of the proposed measure also would
impose an additional notification obligation on “[a] health care
provider who is to perform an abortion, a referring health care
provider, an agent of the health care provider who is to perform
the abortion or an agent of the referring health care provider.” 
That subsection would require notice to the female that medical
assistance benefits may be available for prenatal, childbirth,
and neonatal care; that the father may be required to assist in
the support of the child despite any offer to pay for the
abortion; that the female has the right to certain information
provided by the Department of Human Services; that the State of
Oregon provides that information, that the information includes a
description of an unborn child, and that it is available in print
form and on a state-maintained Internet website; and that the
party providing the notice will deliver the information from the
State of Oregon either in person 24 hours before the abortion or
by certified mail 72 hours before the abortion.  The party
providing the notice described in that paragraph must do so
either in person or by telephone 24 hours before the performance
of the abortion.
         The proposed measure would require the female to
certify in writing that she has received the information that the
health care provider must provide under the proposal.  It also
would require the health care provider or that party’s agent to
receive a copy of the female’s written certification.
         The proposed measure would require the Department of
Human Services to print materials that, among other things, would
inform a female about services that are available to her; the
“probable anatomical and physiological characteristics of an
unborn child at two-week gestational increments[;]” and abortion
procedures commonly employed, the medical risks commonly
associated with those procedures, the possible detrimental
physiological effects of an abortion, and the medical risks of
carrying a child to term.  The proposed measure would require the
State of Oregon’s materials to include other information and
would require the state to provide that information on a website,
the resolution of which is “not less than 72 dots per inch,” to
print the information in 10-point type in multiple languages, and
to update the information annually.  The proposed measure also
specifies the content of the required notification that it would
require a health care provider to deliver, if possible, when a
medical emergency compels termination of a pregnancy.
         For purposes of addressing this ballot title dispute,
three aspects of the additions to ORS 677.097 described in the
proposed measure are significant.  First, the proposed changes
would alter current Oregon law that now requires physicians who
provide abortion services to make specific disclosures to the
physician’s patients that explain (1) in general terms the
procedure or treatment to be undertaken; (2) possible alternative
procedures or methods of treatment, if any; and (3) the risks, if
any, from the procedure or treatment.  Under current law, the
physician must ask the patient if she wants a more detailed
explanation.  If she does, then the physician must make
additional detailed disclosures about those three matters unless
to do so would be materially detrimental to the patient.
         Second, in general, the proposed measure would obligate
a health care provider, who is to perform an abortion, to notify
the female patient of an additional quantum of medical facts and
opinions and a variety of data about the abortion procedure and
other matters.  The notification would be required to occur
within the timelines and by the methods of communication that the
proposed measure specifies.  The proposed measure declares that,
except in the case of a medical emergency, for which the proposed
measure requires a separate notification to the pregnant female,
“consent to an abortion is voluntary and informed only if, at
least 24 hours before the abortion, the female receives by
telephone or in person the information required by this section
pursuant to the process and in the manner set forth” in the
proposed measure.
         Third, the proposed measure does not disturb the civil
liability of a health care provider who conducts a medical
procedure without the patient’s informed consent.  The proposed
measure, if adopted, would render a pregnant woman’s consent to a
non-emergency abortion to be involuntary and uninformed unless
the health care provider who performs the abortion, a referring
health care provider, or their agent gives a notice to the woman
that complies in every respect with all the substantive and
procedural requirements for such a notice that the proposed
measure identifies.  In legal terms, any failure of compliance by
a health care provider with every substantive and procedural
notice requirement that the proposed initiative describes would
expose the health care provider, under Oregon law, to potential
civil liability for medical malpractice.
THE CAPTION
         ORS 250.035(2)(a) requires a ballot title for a state
measure to include a 15-word caption “that reasonably identifies
the subject matter of the state measure.”  This court has stated:
“Because the caption is the cornerstone for the other
portions of the ballot title, the caption must identify
the subject matter of the proposed measure ‘in terms
that will not confuse or mislead potential petition
signers and voters.’  Mabon v. Myers, 332 Or 633, 637,
33 P3d 988 (2001).”
Kain v. Myers, 333 Or 497, 502, 41 P3d 1076 (2002). 
         The Nichols petitioners argue that an accurate caption
must identify the proposed measure as a “prohibition” on abortion
unless the medical provider complies with the new notification
requirements regarding abortion that the proposed measure would
add to the informed consent statute.  As a description of the
proposed measure’s subject matter, petitioners’ point is
debatable.  On the one hand, the proposed measure plainly
contemplates a complete cessation of non-emergency abortion
services to pregnant women during at least the 24-hour period
following the required notification.  Any physician who provided
an abortion before expiration of the 24-hour waiting period
following notification would face potential civil liability for
malpractice due to the lack of informed consent.  In a practical
sense, and especially considering the perspective of the pregnant
woman, those aspects of the proposed measure would operate to
prohibit access to abortion services at least until the
notification period expired.
         On the other hand, the proposed measure, by amending
the informed consent statute, heightens the physician’s risk of
civil liability for noncompliance with the statute without
imposing a specific prohibition on the act of performing an
abortion itself.  Because the proposed measure would affect a
female’s informed consent to abortion –- a civil law concept –-
questions exist about whether a female either may waive the
statute or covenant to refrain from seeking its protection.  We
do not address those questions except to note that the proposed
measure lacks any words of prohibition that might preclude a
female’s attempt to sidestep the additional notification
requirements.
         The foregoing indicates that it is not essential that
the caption identify the proposed measure as a “prohibition” on
abortion to state accurately the proposed measure’s subject
matter.  We conclude that, under our substantial compliance
standard of review, the Attorney General’s caption does not fall
short of statutory requirements for that reason. (2)

         The Nichols petitioners next argue that the Attorney
General’s caption falls short of statutory requirements because
it fails to disclose that the proposed measure creates no medical
emergency exception to the notice requirements when the life or
health of the mother are at risk.  Subsection (3) E of the
proposed measure, creates a special notification requirement,
that applies if compliance is “possible,” in cases of medical
emergency but otherwise does not modify a provider’s authority in
cases of medical emergency.  Thus, as the Attorney General points
out, the proposed measure leaves in place whatever the law might
be regarding a provider’s duty to comply with notice requirements
or to take other actions regarding a medical emergency.  That
feature of the proposed measure, although important as a general
matter, concerns what the proposed measure fails to create, not
what it would create.  Particularly in light of the word
limitation that governs the caption, we cannot conclude that the
Attorney General’s caption falls short of statutory requirements
for that reason.
“YES” AND “NO” VOTE RESULT STATEMENTS
         ORS 250.035(2)(b) and (c) require “simple and
understandable” statements of not more than 25 words that
describe the result if the voters approve the proposed measure
and if they reject it.  The Nichols petitioners challenge the
Attorney General’s “yes” and “no” vote result statements.  They
contend that the “yes” vote result statement must mention that
the proposed measure would “prohibit abortions until after
specified statements are made and after a waiting period.”  For
the reasons discussed above, we conclude that the Attorney
General’s “yes” vote result statement is not deficient for the
reason that the Nichols petitioners urge. 
         The Nichols petitioners also assert that the “no” vote
result statement is insufficient because it fails to disclose
that “current state law provides for a limited medical emergency
exception.”  The Attorney General responds that, at present, ORS
677.097 contains no medical exception provision.
         The Nichols petitioners argue that, under Planned
Parenthood of Southeastern Pa. v. Casey, 505 US 833, 879-80, 112
S Ct 2791, 120 L Ed 2d 674 (1992), the absence of a medical
emergency exception “may render a statute such as this
unconstitutional.”  We conclude, however, that petitioners’
argument falls short of demonstrating that the Attorney General
has erred, under our “substantial compliance” standard, in
failing to recite, in the “no” vote result statement, that
current state law provides a medical emergency exception.  The
state law sources that petitioners cite are less than clear on
that question.  Moreover, Casey sustained a statutory definition
of medical emergency against a constitutional attack.  It is
difficult to extrapolate from that holding that federal
constitutional law compels Oregon to recognize a medical
emergency exception as a matter of state law.  Finally, even if
Casey forbids states from restricting abortions under a medical
emergency, as the Nichols petitioners advocate, the Attorney
General properly may conclude that that proposition offers no
point of contrast between the proposed measure and current law
and, thus, the “no” vote result statement need not mention it.
         The Attorney General’s “yes” and “no” vote result
statements do not fall short of statutory requirements for the
reasons that the Nichols petitioners advocate.
SUMMARY
         The summary is a “concise and impartial statement of
not more than 125 words summarizing the state measure and its
major effect.”  ORS 250.035(2)(d).  The purpose of the summary
“is to help voters understand what will happen if the measure is
approved, and * * * [it] should * * * be worded so that voters
will understand the breadth of its impact.”  Fred Meyer, Inc. v. 
Roberts, 308 Or 169, 175, 777 P2d 406 (1989).
         For the reasons expressed above, we reject the Nichols
petitioners’ argument that the summary must tell voters that the
proposed measure “would prohibit abortions in the absence of
specified statements and a waiting period, even in the case of a
medical emergency.”  Nevertheless, for other reasons that the
Nichols petitioners assert, the Attorney General’s summary is not
accurate and requires modification.  
         The Attorney General’s summary purports to state
current Oregon law as follows:  “Current law requires physician
to:  obtain patient’s informed consent for abortion by explaining
in general terms the procedure, risks, alternative
treatments/procedures; provide more information on request.”  ORS
677.097(2) provides in part that “[a]fter giving the explanation
specified in subsection (1) of this section, the physician or
podiatric physician and surgeon shall ask the patient if the
patient wants a more detailed explanation.”  (Emphasis added.)
         The Attorney General’s summary contains an error
regarding current Oregon law.  The phrase “in general terms” is
part of ORS 677.097(1)(a), but does not appear in subsections (b)
or (c).  The Attorney General’s summary indicates that the
physician must explain "in general terms" each of the three items
of medical information that ORS 677.097(1) sets out.  However,
the physician has an additional statutory duty to ask the patient
if the patient wants a more detailed explanation than the one
delivered under ORS 677.097(1).  The Attorney General’s summary
fails to disclose that duty.  The Attorney General’s failure to
refer in the summary to the physician’s responsibility to ask the
patient whether she desires a more detailed explanation
incorrectly indicates to a reader that the patient now receives
an explanation in general terms and nothing more, unless she
happens to request more information.  The Attorney General must
modify the summary to address that error.
         The Attorney General’s summary indicates that the
proposed measure would require the physician to deliver certain
information in a “conversation” with the patient.  The summary
then describes other information that the physician must convey
but fails to disclose that the proposed measure would authorize
delivery of that information by means other than a conversation,
such as by a tape recording.
         The Attorney General asserts that petitioners resist
any reference to a “conversation” in the summary.  Additionally,
the Attorney General acknowledges that the proposed measure
authorizes the physician to deliver some statements through a
tape recording under certain circumstances but that the Attorney
General’s summary accurately reflects both provisions (i.e.,
those relating to notice by conversation and by tape recording).
         The Attorney General’s arguments are wrong on both
counts.  The reference in the summary to notification by
conversation for some components of the physician’s information,
coupled with silence about permissible methods of communication
regarding other information, creates the incorrect inference that
the proposed measure either would require the physician to
deliver the entire notification in a conversation with the
patient or would say nothing about other required and authorized
methods of communication.  If the Attorney General has determined
that the method of communication is a necessary part of the
summary, then the summary must refer to the authorized methods of
communication in a way that accurately reflects the proposed
measure’s text.  The Attorney General must modify the summary to
address those errors.  See ORS 250.085(8).
         Ballot title referred to the Attorney General for
modification. 


1. 	Petitioner Wyant challenges the caption and the “yes”
and “no” result statements, but not the summary in the ballot
title that the Attorney General certified.  The Nichols
petitioners challenge each segment of the Attorney General’s
ballot title.
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2. 	ORS 250.085(5) provides:
“The Supreme Court shall review the title for
substantial compliance with the requirements of ORS
250.035.”

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