Oregon lawmakers may boost protections for those seeking and providing reproductive or gender-affirming care

The Oregon state Senate may soon take up the bill that would enshrine additional protections for Oregonian patients and providers of reproductive services or gender-affirming care. That bill, HB 4088, has already passed in the House and has been referred to the Senate by committee. Chief sponsor Rep. Lisa Fragala (D-Eugene) says the bill reflects a commitment to the rights of Oregonians to access these types of medical care and retain their privacy. Fragala joins us with more on the legislation. We also hear from Rep. Virgle Osborne (R- Roseburg) who voted against the bill.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The Oregon State Senate is considering a bill right now that has already passed in the House. It would strengthen legal protections for people who seek or provide abortions or gender-affirming care in the state. In particular, the bill would prohibit public agencies in Oregon from cooperating with federal or out-of-state investigations into the provision of reproductive or gender affirming care that is legal in Oregon. It would also extend more privacy protections. We’ll hear from an opponent of the bill in a few minutes. We start with its chief sponsor. Lisa Fragala is a Democratic representative from Central and South Eugene. Welcome to Think Out Loud.

Lisa Fragala: Thank you. I’m excited to be here today. I always enjoyed listening to your show.

Miller: Thank you. So to understand this new bill, I think some context for the status quo is helpful. What are the existing protections that Oregon lawmakers have put in place for those seeking reproductive services and gender-affirming care or those who are providing that care?

Fragala: So, Oregon led the nation by passing strong laws to protect reproductive health care and gender-affirming care. In 2017, we passed the Reproductive Health Equity Act, or as some people fondly call it, RHEA, and that was really a landmark piece of legislation across the country. And then in 2023, Oregon, like many other states across the country, passed a shield law to provide protections to patients and providers seeking this medically necessary and legally protected care, and that was passed in 2023.

Miller: OK, so the shield law is in place. Other protections before that. So let’s turn to what you think needs to be done now, starting with the cooperation that public agencies in Oregon might have to do with federal or out-of-state investigations. What would change in terms of what public agencies in Oregon could do if they’re asked by the federal government or, say, some state government about care provided in Oregon?

Fragala: So, the Patient and Provider Privacy Act ensures Oregon protects health care that is legal in Oregon, right? It protects the providers who deliver it and the patients who need it. So if we break that down into very simple language, this bill protects patients’ ability to receive lawful evidence-based healthcare in Oregon. And it protects providers’ ability to safely provide lawful evidence-based health care without fear of retaliation or punishment. We’re not relitigating what is legally protected already.

And so in Oregon, for example, it’s a very technical bill, and the one piece that you identified is only one specific part of the bill, right? That local governments or public agencies in Oregon would not cooperate with federal and out of state investigations of reproductive or gender-affirming care that is legal in Oregon, unless required by law. There are other technical components to the bill. For example, the bill will protect our private data held by the Oregon Health Authority by ensuring individually identifiable information of patients seeking reproductive healthcare and gender-affirming care is not disclosed.

Miller: I want to turn to those other data provisions and privacy protections in just a second, but I want to make sure that I and listeners understand the reasons for this bill. So what is, what would potentially happen in Oregon if this bill were not to pass? What has already been requested, for example, of public agencies in Oregon or in other states and what are you trying to prevent?

Fragala: Good question. So I think many people are quite aware of the climate around access to reproductive healthcare and gender-affirming care in our country. There is a significant chilling effect from the federal government, and we’re also seeing attacks by the federal government, and there are also situations where other states are also attempting to do the same thing, right? So in this current climate, many states have identified the fact that there are gaps in our shield law for protecting patients and for protecting providers, and so this legislation is an attempt to create a firewall against those attacks and strengthen state level protections.

Those attacks, there’s a range of them, from essentially some states have requested to extradite doctors who have provided lawfully protected health care in their own state. I believe that’s happening with Louisiana and New York. There are a couple of cases there.

Miller: Do you know if that has happened in Oregon yet? And do you know if Oregon officials, even without this bill that you’re pushing for, would agree?

Fragala: Who do you mean by Oregon officials?

Miller: Well, I mean, whoever would be responsible for extraditing, say, an Oregon doctor who performed, say, an abortion on somebody who came here from Texas or Louisiana. If this is meant to prevent non-fugitive extraditions, I’m wondering if those have already been attempted in Oregon.

Fragala: I don’t have a specific example of one that has been attempted, but I do know that this is something that we are codifying, that is the current practice of the governor’s office. Governor Kotek has been very transparent about the fact that she will not extradite individuals who have provided lawful health care in the state of Oregon. And so we’re simply codifying that. That is the current practice in the governor’s office and that’s what we’re codifying in the statute.

Miller: In other words, you’re saying that our current chief executive says this is her policy, but you want this to be in state law.

Fragala: Correct.

Miller: I want to turn to another piece that you mentioned there because it seemed like an important one, that you’re saying under this law, if it becomes law, no officer or employee or agent of the Oregon government could cooperate with these investigations at the federal level or at the state level, unless required by federal law. Do you know if there are current federal laws that could compel that kind of cooperation about the provision of gender-affirming or reproductive healthcare?

Fragala: I think this gets into the area where people are really concerned about data privacy. So, for example, there was a recent situation where the federal government was attempting to request certain types of information related to healthcare, Medicaid, Medicare and the information that is provided between OHA and the federal government. So that situation has occurred there. We know of other instances where the federal government has attempted to request information that could make certain communities vulnerable.

With the passage of this law, we would be protecting personally identifiable information so that any individual would not be able to be identified, would not be vulnerable. We know that our trans neighbors are particularly vulnerable in this way. We’ve seen lots of attacks on that community in the last several years and so it is important that we make sure that our data is secure and private.

Miller: One of the people who provided written testimony this week to the state Senate was a Canadian endocrinologist, and I want to run part of what he wrote by you, to get your take on it. He was talking about scientific data about gender-affirming care. He said this: “This bill shuts down data sharing that is the lifeblood of clinical research. Given the poor and low-quality evidence in this area, one would think that the aim would be to increase research. This bill does the opposite. This bill stops data sharing to researchers but allows the data to be shared with HHS as required by statute.” What’s your response?

Fragala: I think I’d like to be really clear that this bill does not create, expand, mandate, or regulate any medical treatment for anyone. It does not set clinical standards of care, override parental consent laws or weigh in on medical debates. It does not create a barrier to medical research or the advancement of science in any way. This bill clarifies our state’s right to regulate the practices of medicine by ensuring that healthcare that is already legal in Oregon can be provided and accessed without interference from out-of-state or federal attacks.

Miller: Would it not change in any way the way that data about gender-affirming care could be shared, because this quote here, it’s not at all about the provision of care. So you’re totally right about that in terms of this comment. He’s saying that he worries that this could impede science by making it harder for scientists to get data about care.

Fragala: Yes, and I don’t think the legislation will do that.

Miller: Just briefly, there’s not too much time left in this short session; what, something like under a week now, or close to a week. Where does this bill stand?

Fragala: This bill was voted out of the Senate Judiciary Committee yesterday and it’s on its way to the floor in the Senate.

Miller: Lisa Fragala, thanks very much.

Fragala: Yeah, thank you so much.

Miller: Lisa Fragala is a Democratic representative from South and Central Eugene.

I’m joined now by an opponent of the bill. Virgle Osborne is a Republican representative from Roseburg. Virgle Osborne, welcome to Think Out Loud.

Virgle Osborne: Thank you for having me.

Miller: It’s great to have you on. Why are you opposed to this bill?

Osborne: Well, it’s gonna take a lot longer than 15 minutes to tell you why I’m opposed to this bill, but I’ll just start out with the fact that, once again, in the state of Oregon, we’re making it easier to harm our kids. We’re making it easier for somebody that’s 15 years old to make a decision that will be a life-changing, lifelong decision that’s gonna potentially cause a lot of harm in their life, and the suicide rates are fairly high as well for people who’ve made this decision at a young age.

There’s a host of reasons why I’m opposed to it, but it’s all about the kids. This bill allows doctors immunity from basically doing something to a kid, with no knowledge of the family or their parents or guardians. And this bill just gives a whole bunch of workarounds for the doctors to have immunity from any of the responsibility of potentially harming a person.

Miller: As you heard that this bill doesn’t say anything about existing Oregon law. So, what exactly is the Oregon-specific change in the provision of care that you’re worried about?

Osborne: I think you’re correct. It doesn’t change the Oregon law. We’ve already made some bad decisions in Oregon and that happened back in ‘23 or ‘24, I don’t remember, it’s when I first came to the legislature. We basically made the decision in Oregon that it was gonna be OK for a 12-year old to have an abortion or a 15-year-old to have transgender surgery or whatever. This doesn’t change that. That’s already something that is law in Oregon. What this changes is, there’s no backlash.

So, in other words, if you go to the doctor and you have a broken leg and you decide that, two months later, that your leg wasn’t set right, you can go back and sue the doctor for having done a botched job. But if you go to the doctor at 15 years old because your uncle took you in without telling your parents, and you have a transgender surgery or you have your breast augmentation, whatever it may be, you have that work done, and then when you’re 22 you decide that you really shouldn’t have made that decision because you were 15 when you made it, there’s no backlash on the doctor or anybody that was involved in letting you do that.

Miller: Unless I’m misunderstanding this law, it seems that that example isn’t quite accurate. To me it’d be more like saying that there couldn’t be backlash from somebody in another state or somebody at the federal level.

Osborne: That is correct. It shields out-of-state people from coming in from out of state. It basically makes Oregon a state where people will come to have that work done. I didn’t specify that, but, yes, you are correct.

Miller: I’m just curious why you think that you want somebody from some other state to be able to prosecute people for what they did in Oregon. If it is legal in Oregon, and obviously as you said, we don’t have time to debate the merits of what passed here. You vehemently disagree with existing Oregon statute, but I’m just trying to focus specifically on this current bill. If something is legal in Oregon, why should Oregon officials take part in an investigation stemming from some other state?

Osborne: Well, I understand your point. I think what your point misses is the fact that these are kids. There’s a host of reasons why you could come from another state. That doesn’t make it right. And what this will do is codify a bad decision that we’ve already made, and it will cover out-of-state patients coming into Oregon as well. And again, my first and foremost concern is the abuse of our children. The rest of it is minutiae, but the fact is we’re allowing this to happen in this state, which we shouldn’t be, but this will just codify that.

And other states, folks will come from other states, come to Oregon because they know that they have immunity, let alone the other issues where you’re not tracking data, you’re not helping with research. I mean, it is basically hiding what you’re doing. And I think when you’re 15 years old, I think transparency is the best remedy for most things. I think when you’re 15 years old, you haven’t developed your brain enough to make a decision about what your life is gonna look like when you’re 29 or 30.

Miller: As a hypothetical, because I’m still stuck on the out-of-state piece of this, and that this is a slightly tortured hypothetical, but please stick with me because I really am curious about your response. Let’s say that an Oregonian went to a state with more lenient gun laws – say Texas – and they bought a gun there that for whatever reason they wouldn’t have been able to buy here. And then some Oregonians found out about it and tried to get Texas officials to extradite the Texan gun seller. How would you feel about that?

Osborne: I think it’s two totally different things, and I don’t think you can get there with your example, because I think when you talk about… Of course, that people have different feelings toward guns. This is irreversible surgery. Let me give you a scenario. What if a 15-year-old girl was impregnated in Idaho, or I don’t know, pick a state, and she knows she can’t get and have an abortion there, and the uncle was the one that did it.

So what they’re gonna do is, the uncle’s gonna, without the knowledge of the parents, he’s gonna take that 15-year-old girl to Oregon, and there will never be a police report. There will never be anything that says, hey, why is a 15-year-old girl pregnant? Obviously, somebody did this, and Oregon is shielding the potential for prosecution, a completely different scenario than if you bought a gun in Texas. That is my concern.

Miller: I want to turn to the privacy protections that are also a part of this bill. For example, protecting the privacy of name or gender marker changes, and this is not a question of age. We could be talking about people who are 30 or 40 or 80. What are your thoughts about that piece of this bill?

Osborne: Frankly, if you’re 21 years old and you decide that you want to go to the hospital and have a transgender surgery, I am all about it. I think you should do it, and make up your own mind. If you’re 15, there should be transparency. Your parents should know about it. A legal guardian should know about it. I’m just using 15 as a base age. I mean, this can happen at 16, 17, 12, our kids are making decisions that… we don’t let them vote till they’re 18, but we’ll let them have, I don’t know, testosterone treatment at 15 because they decided they woke up one day and I feel like a girl today. It’s simply about being a minor. And the rest of it, I don’t really care if that’s what they wanna do with their body when they turn 21, they can do whatever they want.

Miller: My understanding, you’ve talked about parents not knowing about this. My understanding is that surgeons do not do this without parental consent. That’s not at all the norm here, that parents or guardians in general are very much a part of these decisions.

Osborne: I would argue that you are incorrect with that information, and this bill just makes it even easier to hide it.

Miller: Virgle Osborne, thanks very much for joining us.

Osborne: Absolutely, thank you for having me.

Miller: Virgle Osborne is a Republican representative from Roseburg.

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