First, a public service announcement: At the time of this publication, people who need abortion care can still safely travel to Washington to get it. That was the overwhelming message from the pro-choice advocates and lawmakers I spoke with this week in the wake of the Supreme Court’s reversal of Roe v. Wade.
How long that fact remains true, however, is uncertain. With prohibition states considering a variety of tactics to criminalize abortion across state lines, Democratic lawmakers and policy advocates in Washington are watching closely to develop “airtight” legal protections for both abortion patients and medical providers.
Currently, Democratic lawmakers in Olympia aren’t planning to seek a special session to pass those laws before regular session starts in January, but advocates worry that they may need to act sooner than that to counter concerning developments in Republican state legislatures.
Because Washington’s State Legislature operates on a part-time basis, passing new laws in response to the Supreme Court’s reversal of Roe would require a special session. In a 2015 special session that went into triple overtime, the total bill for the additional convening of the State Legislature totaled a little under $500,000.
When asked about the urgency of passing legislative protections for abortion rights, Kia Guarino, the executive director of Pro-Choice Washington, said in a phone interview that “the sooner [Washington] can get something on the books, the better.” In her view, the risk of losing either chamber of the Legislature to Republican control after November’s midterm elections presents the “most compelling reason” to call a special session. As recently as March, Democratic consultants and legislators expressed concern about losing those majorities in a year many expected to be challenging for down-ballot Democratic candidates.
Securing control of one or both chambers wouldn’t allow Republicans to roll back abortion protections over a presumed veto from Governor Inslee, but it would prevent passage of the kinds of protections advocates say patients and providers need in a post-Roe America.
Other Democratic states, such as Connecticut and California, have already taken action. Connecticut passed a law earlier this year providing expansive protections against attempts to sue abortion care providers in their state and prohibiting law enforcement from cooperating with criminal investigations from prohibition states. California’s State Assembly approved a constitutional amendment codifying Roe in the state’s constitution earlier this week.
In response to Governor Inslee’s request for similar legislation, Democrats in Olympia say they’re working on legislative language for those protections. Democratic State Senator Manka Dhingra, chair of the Senate’s Law & Justice Committee, said in a phone interview that she prefers to have a whole suite of bills ready for passage whenever the Legislature takes action on this issue.
In addition to measures like the ones Connecticut took earlier this year, she says Washington needs to look closely at how tech companies handle sensitive data that could incriminate people who travel to Washington for legal abortion care. Companies that run apps that track a user’s location, in addition to increasingly common period-tracking apps such as Flo, could sell or be forced to turn over data to prosecutors in prohibition states.
Senator Dhingra wants to include some measure to prohibit that kind of cooperation from companies headquartered in Washington or from those who store their data on servers located here.
She also wants her colleagues to consider revising telehealth regulations, or lowering licensing requirements for medical providers that prescribe “Plan C” abortion pills through the mail, which would help deal with the projected surge in demand for care.
The state also plans to provide additional funding to doctors and clinics who provide abortion care, but lawmakers want to direct that money to the places that abortion care refugees end up using the most, Dhingra said.
Democratic Rep. Joe Fitzgibbon, who leads the House Democrats’ campaign committee, also stressed the need to tailor the upcoming legislation carefully to make sure they don’t leave any gaps for prohibition states to exploit in subsequent legal battles.
Though they have no plans to call a special session at the moment, both lawmakers acknowledged that further action from states like Texas and Idaho might not give them the luxury of waiting until January.
If any state put the legal framework in place to prosecute a Washington-based medical provider or patient for receiving abortion care in Washington, Rep. Fitzgibbon said that would trigger a “tripwire” for the State Legislature to convene a special session.
Senator Dhingra acknowledged that the unpredictable nature of this conflict between states could require a special session to pass a limited number of protections, with some of the more innovative solutions she’s working on to follow in January.
A spokesperson for Governor Inslee did not immediately return a request for comment on his red line for a special session. Only the Governor or a ⅔ majority of the lawmakers in each chamber of the Legislature can call for one. Since the Dems don’t have majorities that large in Olympia, the Governor would need to do it.
For advocates like Guarino, that trigger seems likely to come sooner rather than later. Just this morning, the National Right to Life Committee issued model legislation for anti-choice state legislatures to enact that would subject people to criminal and civil penalties for “aiding or abetting” an abortion, including “hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion.”
She wasn’t surprised by the “abhorrent” attempt to censor information about legal health care procedures, and she expects Republican-led states emboldened by the Supreme Court’s decision to keep pushing the envelope.