An old question will come before the U.S. Supreme Court in a new form this spring, and the Inland Northwest delegation is staking its ideological claims ahead of a ruling that could change how abortions are provided.
The region’s Republican lawmakers all signed a brief earlier this month urging the nation’s highest court to uphold a Louisiana law requiring doctors who perform abortions to obtain permission to admit their patients at local hospitals. Democrats, including Washington Sens. Maria Cantwell and Patty Murray, called the case troubling and said it continued efforts from the Trump administration to curtail reproductive rights for women.
“As a woman, and as someone who represents a lot of women and men who care deeply about making their own personal choices, I am deeply concerned,” said Murray in an interview in Washington D.C. last week.
The legal brief signed by Reps. Cathy McMorris Rodgers, Dan Newhouse and Russ Fulcher only asks the court to uphold Louisiana’s law, which is similar to a Texas law that was struck down by the Supreme Court a little fewer than four years ago. But since then, the bench’s perceived ideological balance has shifted, with the appointments of Justices Neil Gorsuch and Brett Kavanaugh by President Donald Trump.
McMorris Rodgers and Fulcher both said they’d prefer restrictions on abortions to go even further. McMorris Rodgers said she believed the Constitution protects fetal life, citing the guarantee in the Declaration of Independence of the right to “life, liberty and the pursuit of happiness.”
“This is a Constitutional right, that I believe is so foundational to our country and to our society,” the congresswoman said.
She’s tried to get that right written into law as recently as earlier this month, when McMorris Rodgers pushed for an amendment to a bill calling for regulation of the cancer-causing chemical found in firefighting foam on military bases, including Fairchild. The congresswoman’s amendment would have identified unborn children as a “vulnerable population” for the purposes of the bill, extending to them a legal right of protection in the bill.
The measure was defeated by the Democratic majority. As for the Louisiana case, McMorris Rodgers said she didn’t see its outcome fundamentally altering the right to an abortion in the United States.
“I can’t say that I’ve had that thought,” she said. “I believe every life should be valued.”
Fulcher said he signed the brief over procedural concerns, but he also supported the idea of chipping away at Roe v. Wade, the 1973 Supreme Court decision that declared a constitutional right to an abortion.
“If it were, I wouldn’t mind doing it,” said Fulcher. “I’m a life guy, so I try to look at every legal angle to chip away at that.”
One of the questions the court will have to answer is whether Louisiana’s law creates an “undue burden” on women attempting to obtain an abortion. A 1992 Supreme Court ruling declared that states could not create laws that passed that threshold, upholding some restrictions placed upon women seeking abortions in Pennsylvania and throwing out a requirement that a woman notify her spouse of the decision.
Newhouse said his support of the brief was limited to his belief that women receiving abortions should receive the same quality health care as others, and he didn’t see the lawsuit as an attack on Roe v. Wade.
“This is ensuring that women who go through complicated, dangerous procedures, such as an abortion, have the same high-quality health care available to them as anybody else going through a complicated procedure,” Newhouse said.
The Louisiana law being challenged requires abortion providers to obtain admitting privileges at a hospital within 30 miles of where the procedure is being performed. Murray took exception to the argument that bill backers were trying to make abortions safer, instead arguing that the law was intended to regulate providers out of existence.
“What it essentially does is limit a woman’s right to even find a place that is safe, and capable of doing it,” Murray said of the Louisiana law. “That’s a specious argument that people throw out on the table when they want you to misunderstand what the actual consequences of this decision would be.”
Supporters argue that the Louisiana law would ensure that, if complications occurred during the operation, the pregnant mother could be taken to a licensed health care facility for treatment. However, statistics from the Centers for Disease Control found that serious complications during abortion are rare. In 2013, for example, more than 664,000 abortions were reported by the CDC. Four of those, or roughly 0.0006%, ended with the death of the mother from complications.
Cantwell offered a defense of the right to an abortion that also has its roots in the Constitution. A ruling that paved the way for Roe v. Wade established a Constitutional right to privacy. That right is not explicitly stated in the Constitution, but is a part of what’s known as the “penumbra” that Cantwell believes defends a woman’s right to receive an abortion in the United States.
“The fact that people try to chip away at that right is frustrating,” Cantwell said.
The senator said when she sat on the Senate’s Judiciary Committee, responsible for vetting picks to federal courts, she would often ask candidates whether they agreed that the penumbra of the Constitution guaranteed a right to privacy, and that true conservatives would say no. It’s why she said she voted in 2005 against the confirmation of Chief Justice John Roberts, who will preside over the Supreme Court’s decision in the Louisiana case.
“I’m worried about the courts. I’m worried about their interpretation,” Cantwell said.
But, she noted, it would take a drastic change at the federal level to alter the process of receiving an abortion in Washington state. Voters codified the right to receive an early-term abortion in Washington state by referendum in 1970, and re-affirmed that right in 1991 with the narrow passage of an initiative permitting abortion by a physician.
The U.S. Supreme Court is scheduled to hear oral arguments in the Louisiana case on March 4. The court previously left in place a lower court injunction blocking enforcement of the law until the Supreme Court renders its decision.
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