A patient is tended to by a nurse in the intensive care unit at Oregon Health and Science University on Portland, Ore., Aug. 19, 2021. Oregon voters will consider whether the state should recognize access to health care as a "fundamental right" in next month's general election.
Kristyna Wentz-Graff / OPB
In November, Oregon voters will decide whether to amend the state’s constitution to create a new fundamental right for everyone living here: access to affordable health care.
The language of the measure is simple. It states: “It is the obligation of the state to ensure that every resident of Oregon has access to cost-effective, clinically appropriate and affordable health care as a fundamental right.”
If it passes, Oregon will be the first state in the nation with a right to health care in its constitution.
Legal experts say the closest parallel is the right to a K-12 education, which is also guaranteed by state constitutions.
The Oregon Legislature voted in May 2021 to refer the proposed amendment to the voters. Known then as Senate Joint Resolution 12, it passed on a near-party-line vote. Democrats supported it. Republicans opposed it, with then-Democrat Betsy Johnson, who is now running for governor as an unaffiliated candidate, joining the opposition.
Legislators disagree on what it means and its implications.
Supporters say the measure will not change how Oregonians get their health insurance or who pays for it. They say it will focus the Legislature on efforts to bring down the cost of health care insurance and copays for individuals and to continue efforts to drive down the percentage of people who are uninsured.
Opponents argue it will inevitably lead to an increase in the number of people on Medicaid that could cost the state billions of dollars, and that it gives individuals who lack access to health care the right to sue the state — with myriad potential unintended consequences.
Legal experts agree the amendment, if passed by voters, opens the door for Oregonians who don’t have access to affordable health care to sue the state. But the measure also says that state funding for health care must be balanced against funding for public schools and other essential public services.
Supportive and encouraging messages are posted on the staff entrance to the emergency department at Salem Health in Salem, Jan. 27, 2022. If Measure 111 passes, Oregon will be the first state in the nation with a right to health care in its constitution.
Kristyna Wentz-Graff / OPB
While there’s no guarantee as to how Oregon courts will interpret it, that language gives courts a path to defer to the Legislature on questions of how to implement and fund health care access.
The legislature passed the resolution to refer Measure 111 to the voters in tribute to state representative Mitch Greenlick. A health care policy expert, Greenlick had championed the idea of amending the state constitution to include a right to access health care and had tried many times to pass similar legislation. He died in 2020.
Most of Oregon’s large health care providers and insurers have not taken a position on Measure 111. Two have endorsed it: The coordinated care organization Care Oregon and health care giant Providence Health and Services.
Jessica Adamson, the executive director of state government and public affairs for Providence, said she and Greenlick spoke about the idea behind Measure 111 often.
“He really believed that a constitution should reflect the state’s values,” Adamson said. “We had disagreements about how you achieve universal access to care. But we never disagreed on the goal, that it was important to state that goal.”
The largest donors to the PAC campaigning in support of Measure 111 are the Nurses United Political Action Committee, the SEIU and Health Care for All Oregon, a coalition advocating for a single-payer, universal health care system.
What does a ‘right to access health care’ mean?
Sen. Elizabeth Steiner Hayward, who led the effort to pass SJR 12, said that she does not believe Measure 111 will require the state to radically overhaul how people get their health insurance, nor will it set Oregon up to switch to a single payer system, like the ones in Canada or the United Kingdom, where a public agency pays for all health care.
“It just says this is a value and the state should be paying attention to making sure that every Oregonian has access to high quality, cost effective, affordable, evidence-based health care‚” Steiner Hayward said. “It does not say how we’re supposed to do this.”
Steiner Hayward and Adamson both say a careful read of the text of the measure makes it clear it doesn’t require Oregon to establish a single payer system.
If the measure passes, the state’s obligation will be to ensure “access” to affordable care — a goal it can achieve working within the existing health care system, Adamson said.
“This wasn’t saying that the state would pay for it for everyone, or that it would be free, or that access meant provide. Those are all very different,” Adamson said.
What would Measure 111 actually do?
What the measure would do depends in part on how close you think the state’s current policies come to hitting the target of access to affordable care for everyone.
According to survey data collected by Oregon Health Authority, the percentage of Oregonians without insurance has fallen significantly over the past 10 years as the state has made more people eligible for Medicaid and after the Affordable Care Act, signed into law in 2010 by then President Barack Obama, made individual plans available with government subsidies.
In 2011, about 15% of people in Oregon reported being uninsured. In 2021, that number had fallen to about 5%, according to OHA’s data. Many of those currently uninsured likely qualify for either a subsidized individual plan or Medicaid, according to OHA.
The Kaiser Family Foundation, using federal data and a slightly different methodology, puts the current uninsured rate in Oregon a little higher, at 6% in 2021.
Roughly 30% of Oregonians have health insurance through the Oregon Health Plan, and an additional 15% have Medicare, according to OHA. Around half of Oregonians have employer based or group insurance.
The rising cost of those group plans is already a major focus of state policymakers, who in 2021 gave OHA the authority to set an overall cost growth target for health care providers. Providers that fail to meet the target could be required to complete a “performance improvement plan.”
Steiner Hayward believes Measure 111 will give Oregon “additional authority” to work on the issue of the underinsured: people on employer sponsored plans or individual plans purchased on the marketplace who pay “such high copays and deductibles that they can’t really afford to go in for care,” she said.
She also said it would make it harder — but not impossible — for the Legislature to cut some current recipients of Medicaid, like undocumented immigrants.
“I think the Legislature would still have the power to make those decisions if they worked with those groups to figure out how else they were going to get health care,” she said.
The opposition
There’s no official “no on Measure 111″ campaign, and relatively little organized opposition. High-profile opponents include two of the current candidates for governor: Betsy Johnson and Christine Drazan.
Another public critic is former state Rep. Julie Parrish, now a staffer for Rep. Cedric Hayden.
Parrish has written a detailed critique of the ballot measure.
She argues that the measure will be “a tremendous cost burden to state and local government budgets.” The official financial impact statement in the Oregon voters guide describes the financial impact of the measure as indeterminate.
“The impact of the measure will depend on future legislative action to establish additional health benefits and determine how they will be paid for,” the committee responsible for evaluating the measures wrote.
Parrish argues that extending Medicaid coverage to everyone who is currently uninsured could cost the state $2.5 billion biennially, but that the costs of the measure could be much greater than that depending on how courts interpret it.
“Without a special legislative session, the battle over seemingly benign words like ‘affordable health care’” and “‘fundamental right’” might begin in a courtroom before it can take place in a legislative hearing room,” she wrote.
Bruce Howell teaches health law at Willamette University. Howell says he’s concerned the measure could have unintended consequences.
“I could see the state getting sued all over the place,” he said.
Howell also wonders if the Legislature, in implementing Measure 111, will require physicians and hospitals to provide care for all, regardless of their ability to pay — going beyond the current legal requirements that nonprofit health systems provide some degree of charity care and emergency departments evaluate and stabilize anyone who walks through their doors.
An analysis written for the Legislature by Lorey Freeman, Chief Deputy Legislative Counsel, explored the potential cost and scope of Measure 111.
Freeman suggested state courts would be likely to defer to the Legislature when it comes to the question of how to fund access to health care for all Oregonians, especially in light of the language in the measure directing courts not to interfere with the balance of funding for essential services.
But multiple legal experts told OPB there are no guarantees when it comes to how the state Supreme Court might interpret ballot Measure 111, because there’s comparatively little relevant case law in Oregon to consider.