OLYMPIA – Following the U.S. Supreme Court’s overturning of Roe v. Wade last year, Democrats in Washington have made it a priority to protect access to abortion.
As other states, like neighboring Idaho, begin passing laws to restrict abortion access, the Washington Legislature this year is looking at a number of ways to increase protections for providers and patients.
One idea: shielding patients who travel for an abortion or gender-affirming care from criminal investigations in other states. Supporters say the “shield law” is necessary as states try to find ways to prosecute for abortions that happen outside of their state, while opponents say the bill is unnecessary “fear mongering” that could hurt Washington’s relationships with other states.
“If other states are going to be creative and aggressive in restricting abortion, we will be creative and aggressive in fighting back,” sponsor Rep. Drew Hansen, D-Bremerton, said during a floor debate.
Planned Parenthood of Greater Washington and North Idaho saw a 25% increase of abortion patients this January compared to January of last year, spokesman Paul Dillon said. The number of patients coming from Idaho, where an abortion ban went into effect in August, increased by 75% in the last year.
The biggest influx of patients was at clinics in Pullman and Kennewick, but the Spokane center has seen patients who have had to travel the furthest, coming from places like Texas and Florida, Dillon said.
“There’s so much fear and confusion right now about the different patchwork of laws and facing repercussions of care,” Dillon said.
Under the shield law proposal, Washington would not help other states where abortion is illegal prosecute patients who come to Washington for an abortion or gender-affirming care.
The bill would stop Washington courts and law enforcement from issuing or enforcing subpoenas, aiding criminal investigations or making arrests at the request of another state seeking information about cases related to reproductive health services or gender-affirming treatment legal in Washington. Gender-affirming care under the bill is treatments, including hormone therapy and surgical procedures, affirming someone’s gender identity.
The bill also would ban the summons of witnesses and extraditions requested by other states for cases related to reproductive health or gender-affirming care. Businesses would be barred from complying with requests for information or subpoenas from other states related to those cases .
People targeted by out-of-state lawsuits for seeking an abortion or gender-affirming care could recover damages by filing their own lawsuits to seek up to $10,000 and reimbursement of legal fees.
The bill would protect health care providers from threats and harassment by allowing them to apply to the Secretary of State’s Confidentiality Program to keep some of their personal information private.
The state House of Representatives on Tuesday voted 59-38 to pass the bill. Only two Republicans, Rep. Spencer Hutchins, R-Gig Harbor, and Rep. Michelle Caldier, R-Gig Harbor, voted in favor. The state Senate has a companion bill awaiting a vote on the floor.
Legality of travel bans for abortion, shield laws
Currently, 13 states have abortion bans in place, according to the New York Times. Five other states have severe limits on the gestational period after which an abortion is banned. Six states have potential bans that are currently held up in the courts.
Washington Attorney General Bob Ferguson’s Office has made it clear in handouts released to patients they have the right in Washington to receive an abortion and that it is confidential, but as other states begin restricting access to abortions for their own residents, it could get complicated.
Missouri is the only place where a proposal that would limit out-of-state abortions has been introduced, but other states could follow. The proposal would allow private citizens to sue those who helped a Missouri resident have an abortion, even if it’s someone out of state who performed it, or someone who transports the resident to a clinic.
At the moment, the right to travel to other states for services like abortion is legal, and one jurisdiction can’t prosecute someone for acts that occurred in another jurisdiction, such as an Idaho citizen getting an abortion in Washington.
Under the Commerce clause and the privileges and immunities clause of the Constitution, states can’t regulate interstate economic activity, and they have to treat every person traveling to another state equally.
However, the right to travel – similar to the right to privacy – is an unenumerated right, meaning it is not specifically laid out in the Constitution. That could leave room for the Supreme Court to limit it in the future, said Deirdre Bowen, law professor and director of the Family Law Center at Seattle University.
Missouri’s legislation could be the first to make its way to the Supreme Court.
“Essentially, it’s complicated, and, yes, right now you have that right,” Bowen said. “But it is something that clearly is going to be litigated in the courts.”
Even if the right to travel for an abortion is legal, there are other ways states could prosecute getting an abortion in another state, Bowen said.
For example, a person who assists another person in getting access to an abortion, while currently in a state where it is illegal, could be prosecuted in that state, if the state chooses to do so. Idaho lawmakers, for example, have introduced a bill that would add transporting, recruiting or harboring minors to seek an abortion to Idaho’s human trafficking laws.
“Because these things are so complicated, it’s not clear to most prosecutors, ‘What exactly are we prosecuting for? What exactly would the crime be?’ ” Bowen said.
The way abortion will be prosecuted across the states could be similar to how the states deal with other issues that are not yet federally regulated, such as marijuana. For example, the state of Idaho can’t say it is a crime to travel to Washington to purchase marijuana, but they could say it is illegal to possess it in Idaho.
The idea behind shield laws for health services, like what Washington is proposing, is to protect those patients coming to Washington to receive an abortion by refusing to assist prosecutors and law enforcement in other states, Bowen said.
Washington’s proposal would add a narrow exception to laws that require the state to aid in subpoenas, witness summons and communications requests from other states.
The ability to enact a shield law is fully in the power of each state, which has the ability to decide what they want to allow to happen within their jurisdiction, Bowen said.
Supporters, opponents of shield law disagree over necessity
Supporters of the proposal say the bill is necessary, but opponents say it may only lend itself to more conflict among states.
In a Jan. 24 Law and Justice Committee hearing, Diana Amirehteshami, director of the Conservative Ladies of Washington, called the bill “irresponsible.” She said it implies that people who come to Washington for an abortion might be criminalized in another state for it, which she said is false.
“This bill appears to be aimed at creating an environment of fear in a state that is very pro-abortion,” Amirehteshami said. “This bill is unnecessary.”
Dillon said it’s important Washington stand up against states that are trying to strip fundamental rights.
“This legislation will make an impact that providers and patients are protected within our border against this egregious overreach,” he said.
Rep. Jim Walsh, R-Aberdeen, said refusing to comply with other states’ actions could result in retaliation .
“We can’t afford the unintended harm and the unintended division that this policy may drive into the heart of Washington,” Walsh said.
Hansen disagreed. He said the bill is not trying to restrict the ability of what other states can do, but is instead trying to restrict the ability of Washington’s courts, which is in the Legislature’s power.
In a Law and Justice Committee hearing, James McMahan, representing the Washington Association of Sheriffs and Police Chiefs, said the proposal could create unnecessary challenges for law enforcement agencies.
“We ask that the Legislature not place Washington law enforcement agencies in the middle of the abortion debate,” McMahan said.
Rep. Darya Farivar, D-Seattle, said on the floor that law enforcement works to protect the people of Washington state.
“If these reproductive services are protected in Washington, we must also protect them from any out-of-state criminal actions,” Farivar said.
Editor’s note: A previous version of this article said Rep. Hutchins was the only Republican to vote for the shield law. Republican Michelle Caldier also voted in favor of it.