No. 76 December 8, 2016 645

IN THE SUPREME COURT OF THE

STATE OF OREGON

Jeff JIMERSON,

Marylin Shannon,

and Suzanne Belatti,

Petitioners,

v.

Ellen F. ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(SC S064348)

On petition to review ballot title filed September 6, 2016; 

considered and under advisement October 25, 2016.

Jill O. Gibson, Gibson Law Firm LLC, Portland, filed the 

petition for review and reply memorandum for petitioners.

Shannon T. Reel, Assistant Attorney General, Salem, 

filed the answering memorandum for respondent. Also on 

the briefs were Ellen F. Rosenblum, Attorney General, and 

Benjamin Gutman, Solicitor General.

Margaret S. Olney, Bennett Hartman Morris, Portland, 

filed the brief for amici curiae Stacy Cross, Lisa Gardner, 

Chantal Downing, Kimberly McCullough, Michele Stranger 

Hunter, and Kara Carmosino.

BALDWIN, J.

The ballot title is referred to the Attorney General for 

modification.

Case Summary: Petitioners challenged aspects of the certified ballot title 

that the Attorney General prepared for Initiative Petition 1 (2018). If approved, 

IP 1 would prohibit public funding for abortions, except when medically necessary or as may be required by federal law, such as in circumstances including 

rape or incest, to the extent that the federal requirement is found to be constitutional. Held: The sentence in the certified ballot title summary that states, “No 

exception for pregnancy resulting from rape or incest[,]” is misleading and must 

be modified, because it does not substantially comply with ORS 250.035(2)(d).

The ballot title is referred to the Attorney General for modification.
646 Jimerson v. Rosenblum

BALDWIN, J.

Petitioners seek review of the Attorney General’s 

certified ballot title for Initiative Petition (IP) 1 (2018), contending that the “yes” and “no” result statements and the 

summary do not comply with the requirements set out in 

ORS 250.035(2). We review the certified ballot title to determine whether it substantially complies with those requirements. See ORS 250.085(5) (setting out that standard). For 

the reasons explained below, we refer the ballot title to the 

Attorney General for modification of the summary.

IP 1 is a proposed amendment to the Oregon 

Constitution that, if approved, would prohibit public funding 

for abortions, “except when medically necessary or as may 

be required by federal law.” Section 1 of IP 1 sets out that 

general prohibition, and Section 2 sets out several related 

definitions. Section 3 sets out two exceptions to the prohibition in Section 1; the first exception is as follows:

“Public funds may be spent to pay for an abortion when 

federal law requires states to provide funding for abortions, such as in circumstances including rape or incest, 

in which case this [new constitutional provision] shall be 

applied consistent with federal law to the extent the federal 

requirement is found to be constitutional.”

IP 1, § 3(1). Section 4 provides that nothing in the proposed 

amendment “shall be construed as prohibiting the expenditure of public funds to pay for health insurance,” so long as 

“such funds are not spent to pay or reimburse for the costs of 

performing abortions.”

The Attorney General drafted a ballot title for IP 1, 

ORS 250.065(3), and the Secretary of State circulated that 

title for public comment, ORS 250.067(1). After receiving 

comments, the Attorney General modified the draft ballot 

title, ORS 250.067(2)(a), and certified the following ballot 

title to the Secretary of State:

“Amends Constitution: Prohibits spending ‘public 

funds’ (defined) directly/indirectly for ‘abortion’ 

(defined); exceptions; reduces abortion access

“Result of ‘Yes’ Vote: ‘Yes’ vote amends constitution, prohibits spending ‘public funds’ (defined) directly/indirectly 
Cite as 360 Or 645 (2016) 647

for any ‘abortion’ (defined), health plans/insurance covering ‘abortion’; limited exceptions; reduces abortion access.

“Result of ‘No’ Vote: ‘No’ vote retains current law that 

places no restrictions on spending public funds for abortion 

or health plans covering abortion when approved by medical professional.

“Summary: Amends Constitution. Under current law, 

abortions may be obtained, when approved by medical 

professional, under state-funded health plans or under 

health insurance procured by or through a public employer 

or other public service. Measure amends constitution to 

prohibit spending ‘public funds’ (defined) for ‘abortion’ 

(defined) or health benefit plans that cover ‘abortion.’ 

Measure defines ‘abortion,’ in part, as ‘purposeful termination of a clinically diagnosed pregnancy.’ Exception for 

ectopic pregnancy and for pregnant women in danger of 

death due to her physical condition. Exception for spending required by federal law, if requirement is ‘found to be 

constitutional.’ No exception for pregnancy resulting from 

rape or incest. Effect on spending by public entities other 

than the state is unclear. Measure reduces access to abortion. Other provisions.”

Petitioners are the chief petitioners for IP 1 and 

also are electors who timely submitted comments about the 

Attorney General’s draft ballot title for IP 1 and who now are 

dissatisfied with the certified ballot title, ORS 250.085(2). 

They challenge the “yes” and “no” result statements 

and the summary, including aspects that the Attorney 

General added after the comment period ended. See ORS 

250.085(6) (permitting consideration of such arguments). 

We have considered petitioners’ arguments regarding the 

“yes” and “no” result statements in the certified title, and 

conclude that those statements substantially comply with 

statutory requirements. See ORS 250.035(2)(b), (c) (“yes” 

result statement must set out simple and understandable 

statement, within 25-word limit, that describes result if 

proposed measure approved; “no” result statement must 

describe, within 25-word limit, result if proposed measure 

is rejected). As explained below, however, we agree with one 

of petitioners’ arguments challenging the summary, and 

we therefore refer the summary to the Attorney General 

for modification.
648 Jimerson v. Rosenblum

As noted, IP 1 contains an exception based on 

“federal law,” to the effect that public funds may pay for 

abortions when federal law requires states to provide abortion funding, “such as in circumstances including rape or 

incest,” so long as the federal requirement is constitutional. 

IP 1, § 3(1). The certified summary accurately (but only 

generally) refers to that exception in the sentence that 

states, “Exception for spending required by federal law, 

if requirement is ‘found to be constitutional.’” Petitioners 

argue, however, that the following sentence in the summary—“[n]o exception for pregnancy resulting from rape 

or incest”—is speculative and misleading. Specifically, 

in their view, that sentence is based on the Attorney 

General’s legal interpretation that current federal law does 

not require state spending for abortion in instances of rape 

or incest. Petitioners contend, however, that current federal law is unclear, and so the Attorney General may not 

speculate how that issue might be resolved and how it will 

affect the measure. See ORS 250.035(2)(d) (summary must 

set out concise and impartial statement, within 125-word 

limit, summarizing measure and major effect); Conroy v. 

Rosenblum, 358 Or 807, 815, 371 P3d 1180 (2016) (when 

legal effect of measure unclear, court will not speculate 

about it).

The Attorney General responds that the sentence at 

issue is accurate. She explains that the “federal law” exception in IP 1 applies to federal law that “requires” states to 

provide abortion funding (emphasis added), “such as in circumstances including rape or incest.” IP 1, § 3(1). Current 

federal law, she continues, “allows” state abortion funding 

in circumstances of rape or incest, but does not “require[]” 

such funding.1

 Thus, current federal law does not fall within 

the exception, and the summary therefore correctly states 

that IP 1 does not provide an exception for public funding 

of abortions in instances of rape or incest. Amici add that, 

regardless of the state of federal law, IP 1 contains no rape 

or incest exceptions for purposes of state law; thus, the 

1 See Pub L 113-76, § 613, 128 Stat 227 (2014) (prohibition on appropriating 

public funds to pay for abortions); id. § 614 (exception to appropriations prohibition for abortions of pregnancies resulting from rape or incest, or when woman’s 

life would be endangered if carried to term).
Cite as 360 Or 645 (2016) 649

summary accurately explains that the proposed new state 

prohibition contains no such exception.

We agree with petitioners that the sentence, “No 

exception for pregnancy resulting from rape or incest[,]” is 

misleading and must be modified. That sentence suggests 

that IP 1 categorically would prohibit public spending for 

abortions in instances of rape or incest. But IP 1 does contain an exception—dependent on federal law—that may provide for public funding of abortion in those circumstances. 

Whether federal law currently “requires” such funding, IP 

1, § 3(1)—or, in the future, may (or may not) require it—

is uncertain, but it is inaccurate and misleading to state 

that IP 1 contains no such exception at all. See Berman v. 

Kroger, 347 Or 581, 584-85, 227 P3d 692 (2010) (aspects of 

ballot title, including summary, that focused on only partial 

application of proposed measure were impermissibly misleading); Wolf v. Myers, 343 Or 494, 501, 173 P3d 812 (2007) 

(although preparing ballot title necessarily requires some 

level of interpretation, when specific provision of measure 

subject to multiple interpretations, Attorney General may 

not choose one interpretation for purposes of ballot title). 

The summary therefore does not substantially comply with 

ORS 250.035(2)(d) and must be modified.

The ballot title is referred to the Attorney General 

for modification.