Oregon Citizen's Alliance v. Roberts , 308 Or. 599 ( 1989 )

PER CURIAM

In this ballot title proceeding (consolidating three petitions for purposes of argument and opinion), petitioners Oregon Citizen’s Alliance, Henry Kane, and Damian Klauss and Maryann Gernegliaro challenge a ballot title certified by the Attorney General for an initiative measure that would amend the Oregon Constitution to prohibit abortion, except “to prevent the death of the mother and in reported cases of rape or incest.”¹ We review pursuant to ORS 250.085(4).²

In accordance with ORS 250.067(2), the Attorney General certified the following ballot title to the Secretary of State:

“AMENDS OREGON CONSTITUTION TO PROHIBIT ABORTION WITH THREE EXCEPTIONS

“QUESTION: Shall state constitution prohibit abortions except to prevent death of pregnant woman and in reported cases of rape or incest?

“EXPLANATION: Adds new provision to Oregon Constitution. The new provision would prohibit abortion with three exceptions. The exceptions, in which abortion would not be prohibited, are to prevent the death of the pregnant woman and in reported cases of rape or incest. The new provision would prohibit state or local government authorization, support or funding of abortions that are outside the three exceptions. The new provision does not itself establish penalties or sanctions for persons who are involved with prohibited abortions.”

Each petitioner alleges that the ballot title does not comply with the requirements of ORS 250.035(1)³ and each petitioner suggests alternative language. ORS 250.085(2). In addressing these contentions, we review the ballot title for “substantial compliance” with the statutory requirements.

THE CAPTION

(Subject of the Measure)

Petitioners Klauss and Gernegliaro argue that the Caption does not “reasonably identify” the subject of the measure because “the subject matter is the elimination of rights.” It is true that the effect of the measure may be to prohibit certain presently permissible activity. Nonetheless, the subject matter of the measure is the prohibition of abortion, the Caption states as much, and it thus complies with the requirements of ORS 250.085(l)(a).

THE QUESTION

(Chief Purpose of the Measure)

Petitioners Klauss and Gernegliaro again assert that the question does not “plainly phrase the chief purpose of the measure” and that it is “partial and inaccurate” because it fails to inform voters that the chief purpose of the measure is “to unconstitutionally restrict existing rights.” The “chief purpose” of a measure is the most significant aim or end which a measure is designed to achieve. Reed v. Roberts, 304 Or 649, 654, 748 P2d 542 (1988). As we stated above, although an effect may be to prohibit certain presently permissible activity, the measure is designed to prohibit abortion. There is no plainer way to state it.

Petitioner Oregon Citizen’s Alliance claims that the term “pregnant woman” in the question should be replaced by “mother” because the term “mother” is the language in the measure and would thus “be the controlling constitutional language in case the measure were adopted.” The Attorney General responds by stating that “[s]ince without doubt all will agree that the proponents’ ‘mothers’ are pregnant women, the ballot title properly uses the accurate and neutral term.”

There is no doubt that only pregnant women can obtain abortions. The Attorney General’s wording adequately explains the chief purpose of the measure. The issues of when life begins or when someone becomes a mother are not decided here.

THE EXPLANATION

(Summary and Major Effect)

Petitioners Klauss and Gernegliaro renew their arguments about elimination of rights, stating that the measure “attempts to take away a woman’s right to be free form [sic] gender based discrimination.” As the Attorney General correctly points out:

“Assuming arguendo that the measure would ‘take away a woman’s right to be free from gender based discrimination,’ it would do so only by eliminating or limiting her right and opportunity to have an abortion. Thus, nothing is left unsaid when the ballot title informs voters of what the measure does.”

Petitioner Oregon Citizen’s Alliance maintains that the Explanation should include the phrase “[m]akes abortion for reasons of social convenience, which are outside the three exceptions, against public policy” because this statement more accurately summarizes the measure and its major effect. They further maintain that the phrase “in which abortion would not be prohibited” in the third sentence is “unnecessary verbiage.” The measure does not purport to make a statement about public policy; it simply prohibits certain activities. With respect to this petitioner’s second complaint, because the disputed language substantially complies with the requirements of ORS 250.035(1)(c), we see no reason to change it.

Petitioner Kane objects to the last two sentences of the Explanation as conjecture and speculation. We agree with Petitioner Kane that the last two sentences of the Explanation are conjecture. In this case, we have a situation where the major effect of the measure corresponds directly with its purpose. Although it is possible to speculate on secondary effects of the measure, it is inappropriate for the Attorney General to choose two potential secondary effects from a universe of such effects and to place them in the Explanation. The Explanation may contain up to 85 words, yet there is no requirement that it do so. A ballot title, although it may have extremely far-reaching ramifications, may require relatively few words to explain. A greater number of words may obfuscate as well as clarify.

In summary, we certify the following ballot title to the Secretary of State:

AMENDS OREGON CONSTITUTION TO PROHIBIT ABORTION WITH THREE EXCEPTIONS

QUESTION: Shall state constitution prohibit abortions except to prevent death of pregnant woman and in reported cases of rape or incest?

EXPLANATION: Adds new provision to Oregon Constitution. The new provision would prohibit abortion with three exceptions. The exceptions, in which abortion would not be prohibited, are to prevent the death of the pregnant woman and in reported cases of rape or incest.

Ballot title certified as modified.

1 The full text of the proposed initiative measure is:

“Article I of the Oregon Constitution is amended by addition of a new Section 41:

“41. Notwithstanding any provision of this Constitution, abortion is prohibited except to prevent the death of the mother and in reported cases of rape or incest.”

2 ORS 250.085(4) provides:

“The court shall review the title for substantial compliance with the requirements of ORS 250.035 and 250.039, and shall certify a title meeting this standard to the Secretary of State.”

3 ORS 250.035(1) provides:

“The ballot title of any measure to be initiated or referred shall consist of:

“(a) A caption of not more than 10 words which reasonably identifies the subject of the measure;

“(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and

“(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect.”