Oregon lawmakers are trying to sort out what 'creating a right without a remedy' could mean for state budget, Constitution.

JONATHAN HOUSE/PAMPLIN FILE PHOTO - Oregon Clinic at Northeast 99th Avenue in PortlandSALEM — The Oregon House voted along party lines Tuesday to ask voters to amend the Constitution to make access to cost-effective and affordable health care the right of all state residents.

The proposal is headed to the Senate. If passed, it would stand on the November general election ballot. All 35 Democrats in the House voted for the measure, while the 25 Republicans opposed it.

JAIME VALDEZ/PORTLAND TRIBUNE - Rep. Mitch Greenlick, D-Portland, sits inside the House of Representatives at the Oregon State Capitol Feb. 5, 2018.Rep. Mitch Greenlick, D-Portland, the bill's chief sponsor, said in light of federal efforts to overturn the Affordable Care Act, it is important for Oregon voters to weigh in on whether they want health care to be accessible to everyone.

The practical impact of creating such a right is open to debate.

House Speaker Tina Kotek and Majority Leader Jennifer Williamson, both Democrats from Portland, have said the measure is primarily "aspirational," but some legal experts say adding the right to the Constitution could spur litigation.

"There is always a possibility that the state could be sued for failing to follow a constitutional mandate, but we cannot say whether such a suit would be successful and if so, what the maximum extent of the state's liability would be," Legislative Counsel Dexter Johnson wrote in a Feb. 12 opinion requested by Rep. Julie Parrish, R-West Linn.

It also is "impossible to say whether the amendment would create a financial liability for the state" because the proposal doesn't specify how the state must ensure every resident has access to health care, Johnson wrote in a separate opinion Jan. 9, requested by Greenlick.

"It is worth noting that the proposed amendment does not require the state to provide health care to every resident but only to provide access to health care that is effective, medically appropriate and affordable," Johnson wrote.

The proposal raises the question of how the state will ensure that every resident has access and how it will define "cost effective" and "affordable," said Bruce Howell, a Portland health care attorney and adjunct professor at Salem's Willamette University law school.

"The issue is going to be how are we going to make that work and what does that really mean?" he said.

Oregonians who do not have access to cost-effective and affordable health care could sue the state, Howell said. "Reading the bill as it is, it just raises some interesting questions. I don't see how the state can create a right without a remedy," he said.

In a Feb. 5 letter to lawmakers, the nonpartisan League of Women Voters wrote that universal health care needs to be orchestrated at the national level; otherwise, Oregon would be responsible for all of the cost.

"The state of Oregon has insufficient income to support its current responsibilities and cannot provide the added cost of health care coverage for all its residents at this time," wrote league President Norman Turrill.

Paris Achen
Portland Tribune Capital Bureau
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