Published on: 3/30/2022
With the right to abortion threatened in states throughout the country and a major Supreme Court decision expected later this year that could gut or overturn Roe v. Wade, we asked Leah Rutman, the ACLU of Washington’s Health Care and Liberty Counsel, to discuss the national landscape, to explain why pregnant people will retain the right to abortion in Washington regardless of what happens with Roe, and to consider what we can do in Washington to expand and ensure abortion access for pregnant people here and from other states.
What is happening with abortion rights and the Supreme Court?On May 2, Politico published a leaked draft of the Court's majority opinion overturning Roe v. Wade. The Supreme Court has confirmed the draft is authentic but not final. REMINDER: The draft opinion is not an official decision. Abortion is a right and Roe is still the law of the land. The Supreme Court is expected to rule this term on a Mississippi case — Dobbs v. Jackson Women’s Health Organization — that has the potential to either limit the abortion rights protections established under Roe or overturn the landmark decision altogether. If Roe is overturned, 26 states could move to ban abortion and 36 million women and other people who can become pregnant could lose abortion access.
What is the status of abortion rights nationwide?Nationally, the right to abortion is more at risk than it has been since the U.S. Supreme Court’s decision nearly 50 years ago in Roe v. Wade. In Texas, the state Legislature passed an extreme abortion ban making abortion illegal at six weeks of pregnancy before many people even know they're pregnant. The law prohibits Texas providers from performing abortions and allows private citizens to sue abortion providers and anyone who assists a pregnant person with accessing an abortion. Successful lawsuits result in private citizens receiving at least $10,000 in damages. In addition to putting health care providers in legal and financial jeopardy, Senate Bill 8 means anyone, from the Uber driver who drives the pregnant person to their doctor to a friend who loans a pregnant person money for an abortion, can be sued. The law is particularly harmful and worrying because it is drafted in such a way that makes it especially resistant to legal challenges by empowering private citizens to sue. In December, the Supreme Court dismissed most of the case brought by abortion providers against SB 8 and, just this month, the Texas Supreme Court blocked the rest of that case from proceeding.
New legal challenges are on the horizon, but as of today, SB 8 is the law in Texas and pregnant people are being forced to leave the state for abortions. Since the law went into effect last year, thousands of pregnant people in Texas have crossed state lines for abortion care. And the burdens associated with seeking out-of-state care are magnified for people who are low income, people of color, young people, people who need childcare and people who can't take time off work. There are so many factors that mean people who already face systemic racism, discrimination, and economic hardship are hit the hardest by these laws.
Who is most impacted by the extreme abortion ban in Texas?
Earlier this month, Idaho passed a similar law, which will allow certain individuals to sue abortion providers and obtain $20,000 in damages. If implemented, the Idaho law, which has been blocked for now by the state Supreme Court, will likely lead to an increase of pregnant patients seeking access to abortion in Washington state. Other legislatures are considering similar bills. In Missouri, a bill was introduced that includes similar provisions to SB 8 and extends the law to cover those who aid or abet pregnant patients who obtain out-of-state abortions.
Are other states adopting Texas-like abortion bans?
The right to abortion will continue to exist in Washington, regardless of what happens with Roe. The Reproductive Privacy Act, which passed by voter initiative in 1991, guarantees the fundamental right to choose or refuse an abortion in Washington. All pregnant people who seek an abortion in Washington will continue to have that right. The state also provides funding for abortions for people with low incomes.
What happens in Washington state if Roe is overturned?
Most recently, HB 1851, legislation passed this year, crucially expands abortion access just as some are predicting a dramatic increase in the number of pregnant individuals who will seek abortion care in Washington if Roe is overturned. HB 1851 ensures that qualified practitioners other than doctors can provide abortions. It also makes the Reproductive Privacy Act gender neutral to protect and provide for the reproductive health care needs of transgender, non-binary, and gender non-conforming individuals.
We need to ensure out-of-state patients have access to care here, while protecting abortion providers and the individuals and organizations that help pregnant people access abortion care. Because abortion is still legal in Washington, we will likely see an influx of people coming here for care as more states adopt abortion bans. If Roe is overturned, Washington will become one of a minority of states where pregnant people will be able to access safe and legal abortions. The ACLU of Washington is working with allies to determine the best ways to protect providers and “helpers” and ensure access to abortions for patients who live in Washington as well as those who are forced to travel in search of care.
What can we do in Washington state to prepare for more pregnant people traveling to secure abortion care here?
Funding is an important place to start. We need to ensure that patients coming to Washington have the financial resources they need for travel and care by allocating money to abortion funds like the Northwest Abortion Access Fund. We also need to provide the funding necessary to support reproductive health infrastructure, which will ensure Washington has the capacity to take in pregnant people who need care here. Oregon has already allocated $15 million to a reproductive equity fund.
Making sure money is directed to help pregnant people pay for travel, childcare, lodging and other associated costs in addition to reimbursing providers is vital to address the disproportionate burden of abortion bans and existing disparities in abortion access experienced by people of color, people with low incomes and people from other marginalized communities.
As more pregnant patients come to Washington in search of abortion care, we need to help protect providers and those who assist pregnant patients in accessing abortion. It is critical that providers feel secure offering abortions to anyone seeking care in our state, regardless of where the patient comes from.
What about legal protections for abortion providers and those who assist pregnant people in accessing abortion?
HB 1851 expands access to abortion for pregnant patients in Washington by allowing more providers —such as nurse practitioners and physician assistants — to offer abortion care and by making the Reproductive Privacy Act gender neutral. This legislation is an important step, but we must now go further to ensure that abortion is available and accessible across the state. In Washington, there is an ongoing concern about health entities consolidating and ceasing to provide abortions.
What else can we do to improve access to healthcare in Washington state?
This year, the ACLU of Washington supported the introduction of legislation, the Keep Our Care Act, to ensure that communities will not lose access to quality, affordable care when health system consolidations take place. Unfortunately, this legislation did not pass. As we face a dramatic rise in the number of pregnant patients seeking abortions in Washington, the protections provided by the Keep Our Care Act are especially critical. And this is just one of the many efforts we will need to engage in to increase and safeguard abortion access in Washington state.
In California, lawmakers have introduced multiple bills to protect and expand abortion access, and advocates have formed a large abortion rights council. In Connecticut, the legislature passed a bill to protect persons receiving and providing reproductive health care services. The bill is currently awaiting the governor’s signature. And Oregon is routing $15 million in state funds to establish a new reproductive equity fund that will help serve the expected increase in people from out of state seeking abortion care.
How are other states working to protect access to abortion?
Honestly, I don't think there's a silver bullet. Already, these cruel and extreme bans and other measures are preventing patients from accessing safe and legal abortions. And it's hard to fix this when the restrictions on abortion are being created in other states.
But I do feel heartened by the fact that we have strong protections in Washington. Even if Roe is gutted or overturned, the right to choose or refuse an abortion still exists in Washington. We don't have the right to abortion just because of Roe v. Wade — that right is enshrined in our state law.
As politicians around the country continue to pursue attacks on abortion rights, this is our state’s opportunity to really show up and help people. We will continue to fight to protect access to abortion and make sure every person can get the care they need.