How Washington state made its abortion laws Trump-proof

With Neil Gorsuch on the Supreme Court and nominee Judge Brett Kavanaugh likely waiting in the wings, the high-court majority appears to headed toward conservatism. Some Washington state reproductive-health advocates are concerned that could mean a challenge for the landmark abortion-rights case Roe v. Wade.

“I certainly think that is the intent … to appoint a judge who would move our country towards overturning Roe v. Wade and ending the constitutional right to access abortion in this country,” says Jennifer Allen, CEO of Planned Parenthood Votes Northwest and Hawaii, the policy and advocacy arm of the national organization’s local affiliate.

If a challenge to abortion rights does advance, advocates say it’s more likely to take the form of a case making its way through the court system than a dramatic reversal of law, leaving abortion rights to be determined by individual states. In some states, that means abortion bans, or so-called “trigger laws,” would criminalize the procedure.

But in Washington, something else would come into play: a 27-year-old state law intended to defend abortion rights from challenges at the national level. Initiative 120 declared that a woman has a right to choose physician-performed abortion before fetal viability. The law emerged from a political climate not unlike today’s, and was passed narrowly in 1991 by a vote of the people.

Abortion-rights activist Marcy Bloom was there to see it.

In 1991, she was the director of Aradia Women’s Health Center and board president of NARAL Pro-Choice Washington. As part of the coalition that advocated for Initiative 120, Bloom knocked on doors and handed out literature.

“Everyone did a little bit of everything,” she said, including making sure voters understood the language of the initiative, and knew to fill in a “yes” response (wording in initiatives can sometimes make this ambiguous).

Activists like Bloom were concerned about challenges to abortion at the national level, with reproductive rights taking “center stage in U.S. politics” and an increasingly organized backlash fomenting against legal abortion.

“The blue states like ours realized we can’t really depend on the feds … you never know,” said Bloom. “We saw the power of the right wing. We saw the power of the Catholic Church and the evangelicals … they weren’t a political force until the Reagan years.”

And so Initiative 120 evolved, as Bloom put it, into “our own statewide Roe v. Wade.”

Though today’s players are different – Gorsuch and Kavanaugh and a nominally anti-abortion president, not the spiritual heirs to Jerry Falwell and the Moral Majority – advocates face a challenge to Roe similar to the one they predicted — and prepared for — in 1991.

“You know, history repeats itself,” said Bloom.

And so the law passed in 1991 may finally serve one of its intended purposes.

But Initiative 120 did more than legalize abortion at the state level. It included an economic-equality provision to ensure that women could access the procedure regardless of cost. This is the reason that Washington allocates state Medicaid funding for abortion, a rare deviation in a country where the federal Hyde Amendment restricts the use of public dollars for most abortion care.

“Each state gets to decide how it uses its Medicaid funding, so part of it was making sure that economic issues would not be a barrier to women to make this choice,” said Bloom, “and that is critical because … women of privilege, women of means, women of wealth can access safe abortions because they can go to another state, they can go to another country … And poor women and girls can’t.”

In January, Washington further expanded access to abortion through the Legislature’s passage of the Reproductive Parity Act, which mandates that insurance companies that cover maternity care services also cover abortion.

“We have very strong protections here,” says Sara Ainsworth, advocacy director of the feminist legal-advocacy group Legal Voice. But she’s concerned about other barriers, like the Trump administration’s domestic-gag rule, which would bar health-care providers who receive public funds through Title X from discussing pregnancy termination with their patients; the rule would represent a reemergence of Reagan-era abortion policy.

That’s a shift that may not square with the latest public-opinion data on abortion.

“Seventy-two percent of the population … is with us and wants to know how to act,” said Allen, citing Perry Undem polling released in January, “so we are working with our folks in states across the country … contacting our Senators Cantwell and Murray to ask them to do everything in their power to oppose this nomination.”