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Herb Rothschild Jr.: What do we have a right to know?

The U.S. Constitution doesn’t guarantee a Right to Know. Nonetheless, the concept has widespread currency and in varying contexts has been mandated by statutory law. Some of these laws, such as state Open Records and Open Meetings requirements and the federal Freedom of Information Act, have general support; people across the political spectrum favor governmental transparency. Other such laws are hotly contested. In 2014, 1.5 million Oregon voters split almost 50-50 on a ballot proposition to require labeling of GMO content in food products; Measure 92 lost by 837 votes.

I’m guessing that you, my reader, voted for Measure 92 and believe that you support the right to know. Don’t be sure. The matter is more complex than may appear. For example, 25 states require that women seeking abortions be given counseling materials by their providers, some of which are designed to discourage them from going through with the procedure, and then wait from one

to three days before proceeding. Of those 25 states,

12 also require that women have an ultrasound and be invited to look at the image. Right to choose advocates have opposed such laws as a strategy to undermine Roe v. Wade. But as one supporter of them put it, “The counseling is a necessary part of informed consent ... It is the physician’s duty to inform a woman of all her choices, including those that do not terminate a pregnancy.”

Information is power. It helps us make choices we think are in our best interest individually or collectively. But what information should be mandated by law isn’t easy to determine. Take military recruiting. Among the many things recruiters don’t share with their prospects is that terms of enlistment can be extended beyond what the recruits sign up for and they’ll have no recourse but to serve the additional time. Should recruiters be required to make that known up front? Perhaps. But what other negative information should be mandated? What about the above-average rates of sexual assault in the military? Congress would never require recruiters to divulge that.

However, prompted by the rape and murder of a 19-year-old Lehigh College student in her dorm, in 1990 Congress did pass the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, which requires colleges and universities to make public their annual crime statistics. Although it’s hard to determine how much attention college applicants pay to such statistics, the Clery Act was a big incentive to reduce campus crime.

The preceding sentence raises two considerations when deciding what information the public should have a legal Right to Know. If the information will improve recipients’ choices in important matters, such as avoiding foods to which they are allergic, that’s a strong reason to mandate it. If transparency will induce providers to behave better, as with open meetings laws, that too is a strong reason. Is the intent of the mandate also a consideration? Suppose legislators in the states mentioned above mandated abortion counseling, ultrasounds and waiting periods to discourage emotionally fragile women from choosing to abort, does that vitiate the reality that the mandates might promote informed choices?

Next week I’ll work at these complexities by considering SB 649, a bill filed in the last state legislative session that would have required doctors to give patients the Centers for Disease Control’s excipient list (I’ll explain that term) for each vaccine they offer. The proposal is an interesting test of our take on Right to Know.

Herb Rothschild’s column appears in the Ashland Tidings every Saturday.

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