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Richard Botteri: 'State agencies can now abandon policies they disfavor even though mandated by legislation...'

The Oregon Health Authority and Oregon Medical Board have decided to repeal temporally a portion of Oregon law adopted by voters in 1994.

The provision is the requirement that individuals seeking to use Oregon's physician-assisted suicide law (PAS) be residents of the state. A patient may prove residence through, e.g., Oregon voter registration, an Oregon driver's license, owning or leasing Oregon property, or paying Oregon taxes.

Before the assisted suicide law was adopted by the people, an argument against the concept was the fear the law would invite many non-residents to come to Oregon to engage in assisted suicide. The proponents sought to rebut this argument by inserting the residency requirement into the proposed law.

The residency requirement was a selling point considered by the voters. It clearly figured in the decision of many voters to approve the statute. The rule is repeated in PAS laws of seven other states and Washington, D.C.

Now the authority and board have decided to abandon the requirement and will no longer enforce it. Their position stems from their being named in a lawsuit in federal court that contended the residency requirement is unconstitutional.

The argument is that the rule denies to out of state individuals a privilege available to Oregonians. Some physicians have argued that the law prohibits them from providing suicide services to residents in southern Washington. (No Washington resident was a party to the case.)

The lower court never ruled on constitutionality. The state agencies just gave up. The agencies favored repealing the rule or they would have fought the case. The constitutional issue will never be reviewed in the federal district or appellate courts or the United States Supreme Court.

The agencies state they settled after receiving advise from the Oregon attorney general. The Department of Justice did not disclose its advice. It represented the agencies and helped negotiate the settlement.

As part of the settlement, the authorities will request the Oregon Legislature to repeal the provision. The Legislature is not scheduled to meet again until January 2023. Regardless of what the Legislature may do then, several Washington residents will cross the Columbia River to avail themselves of Oregon's assisted suicide system contrary to the decision of Oregon voters.

The issue is not the wisdom of the residency requirement. But how can the attorney general easily advise that such a requirement is unconstitutional? No non-resident joined in the suit and made such a claim. The United States Supreme Court ruled unanimously in Washington v. Glucksberg (1997), "The asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause."

The recent decision of the Oregon Supreme Court confirming our residency requirement to run for governor shows that residency rules are valid expressions of important state policies, especially when adopted by the people in an election. As the agencies half-heartedly recognize, repealing the rule is a function for the Legislature.

This development threatens the legislative process whether for statutes passed by the Legislature or by the people pursuant to the initiative process. Oregon state agencies can now abandon policies they disfavor even though mandated by legislation merely by acceding to a friendly lawsuit challenging the policies, without full judicial review.

Richard Botteri is a retired attorney and elections expert. He lives in Raleigh Hills.

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