I’m still reeling from the US Supreme Court’s disastrous decision in Dobbs v. Jackson Women’s Health Organization. I did a little ranting over at the Token Majority blog on Friday. But I’ve now had the weekend to do some mental processing, and I started to wonder what the legal landscape looked like for abortion rights under Washington state law. So I did some research. I learned a few things I didn’t know, and the news is mostly good.
Edited to add—if you want the tl;dr version, click here for the visual explainer published by KUOW.
Washington state already has several statutes in place to protect a woman’s right to choose. The Seattle Times noted in a recent article that Washington decriminalized abortion by a referendum in 1970—three years before Roe v. Wade was decided. It legalized abortion until “four lunar months after conception.” (What a way to frame the timing. I wonder if there was an accepted definition of a lunar month? I’m guessing no.) It also came with a spousal/parental consent requirement, but that requirement was soon subject to the analysis in Roe. Interestingly, in a 1975 decision in State v. Koome, our state Supreme Court held unconstitutional the parental consent requirement for minors who sought an abortion under both the federal and state constitutions. 84 Wn.2d 901, 530 P.2d 260 (1975).
Then in 1991, voters passed Initiative 120, sometimes referred to as the reproductive privacy act, which further strengthened protections for reproductive rights. It starts out by saying “[t]he sovereign people hereby declare that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.” RCW 9.02.100. It then goes on to state that every individual has the fundamental right to choose or refuse birth control and to choose or refuse to have an abortion with a few express exceptions. It also specifically states that “[t]he state may not deny or interfere with a woman’s right to choose to have an abortion prior to viability of the fetus, or to protect her life or health.” RCW 9.02.110.
Other protections for reproductive rights followed. For example, if the state provides maternity care benefits, services, or information through any program funded in whole or in part by the state must also provide individuals with “substantially equivalent benefits, services, or information” to allow them to seek an abortion, if they choose. RCW 9.02.160. Later, the state also required all health plans that provide coverage for maternity care to provide “substantially equivalent coverage” to allow for abortions. RCW 48.43.073. It also mandated coverage for student health plans for contraception, preventative services, screenings for physical, mental, sexual, and reproductive health care needs following a sexual assault, and others. RCW 48.43.072. There are probably others, too. This wasn’t meant to be an exhaustive list.
In 2022, the legislature passed new legislation to preserve the right to abortion care and modernize the laws governing reproductive rights. It included a new broad purpose statement:
It is the longstanding public policy of this state to promote access to affordable, high quality sexual and reproductive health care, including abortion care, without unnecessary burdens or 10 restrictions on patients or providers.
It went on to explain why modernization was needed:
Although the abortion rights movement has historically centered on women in our advocacy, that must no longer be the case and it is critical that we recognize that transgender, nonbinary, and gender expansive people also get pregnant and require abortion care. Washington's law should reflect the most inclusive understanding of who needs abortions and be updated with gender neutral language. All people deserve access to qualified providers in their community who can provide whatever method of abortion care works for them and no individual who chooses to manage their own abortion should fear arrest or prosecution because of their pregnancy decision or outcome.
The legislation then changed references to “woman” to “pregnant individual.” It also updated the category of medical provider to include protections for qualified advanced practice clinicians, who were authorized under the law law to provide abortions, in addition to M.D.’s.
Finally, the new legislation clarified what actions were punishable for an abortion in violation of the laws. It previously read:
Unless authorized by RCW 9.02.110, any person who performs an abortion on another person shall be guilty of a class C felony punishable under chapter 9A.20 RCW.
RCW 9.02.120. To that, the 2022 legislation added two new sentences:
The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.
Id.
My read is that under current state law, abortions are legal up to the point of viability and to protect the life and/or health of the mother. Those rights may not have any “unnecessary burdens or restrictions” placed on them, whatever that means. But because abortions don’t seem to be authorized by law beyond those three scenarios, in theory there still could be criminal penalties. Given the addition to RCW 9.02.120, however, I’m not sure who could even be subject to criminal prosecution. Plus, we have both a Governor and Attorney General who are dedicated to reproductive freedom rights and access.
So that’s great, you say. Washington is a safe place to be. And that’s generally right. But ….
We don’t know what the political landscape will look like in 5 years or 10 years or 25 years. And this is where things get a little more complicated. Near as I can tell, no Washington appellate court has held that there is a fundamental constitutional right to abortion protected by the state constitution. This is largely, I suspect, because the courts have never needed to say that since Roe was decided about 50 years ago.
Where might such a right be found? I am not a constitutional scholar, but there are a couple of places that come to mind. Article I, section 3 protects personal rights and article I, section 7 protects against the invasion of private affairs.
Article I, section 3 of our state constitution is entitled “Personal Rights” and states “No person shall be deprived of life, liberty, or property, without due process of law.” That is the state version of the federal 14th Amendment Due Process Clause. The problem is that our Supreme Court has said several times that generally speaking, the state due process clause “does not afford broader protection than that given by the Fourteenth Amendment to the United States Constitution.” State v. McCormick, 166 Wn.2d 689, 699, 213 P.3d 32, 36 (2009); see also In re Estate of Hambleton, 181 Wn.2d 802, 823, 335 P.3d 398, 409 (2014) (noting the courts use the federal constitutional due process analysis because the state due process clause does not provide greater process protections); In re Pers. Restraint of Dyer, 143 Wn.2d 384, 394, 20 P.3d 907 (2001) (same). The rights recognized in Roe were based on a substantive due process argument grounded in the 14th Amendment.
If it’s really true the state constitution does not provide greater protections than the federal constitution, and the Dobbs decision just eliminated substantive due process protections for the right to an abortion under the federal constitution, then by the transitive property, the state constitution no longer provides state constitutional protections for the right to an abortion.
Now I don’t actually think the analysis would be that simple. I haven’t gone through every state case discussing the state constitutional due process protections, but it wouldn’t surprise me if none—or very few—of the cases concern reproductive rights. Roe and especially Planned Parenthood v. Casey have basically dominated the legal analysis over the last several decades. As a result, there was rarely, if ever, a need to analyze the state constitution on these issues.
Assuming that’s true, then, it can be argued that the state Supreme Court should still do an independent analysis (generally called a Gunwall analysis, after the case that laid out what the analysis should encompass) that looks at several factors to determine whether and the extent to which the specific issue in the case is protected the same or more broadly under the state constitution vs. the federal constitution.
In 2019, the Washington Supreme Court issued a decision in Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019). In that case, the court explained the basis for the independent state analysis this way:
“[T]he protection of the fundamental rights of Washington citizens was intended to be and remains a separate and important function of our state constitution and courts that is closely associated with our sovereignty.” Therefore, this court has a duty to recognize heightened constitutional protections as a matter of independent state law in appropriate cases. Nevertheless, “[t]his court traditionally has practiced great restraint in expanding state due process beyond federal perimeters.” Accordingly, we have never before required heightened scrutiny in substantive due process challenges to laws regulating the use of property as a matter of independent state law.
Yim, 194 Wn.2d at 690 (internal citations omitted). Why on earth, you ask, would I be discussing a land use case? Because of what the court goes on to say, which caught my attention.
Because the heightened scrutiny apparently required by some of our precedent derives from federal law, we need not consider whether such heightened scrutiny is “incorrect and harmful.” Instead, we may consider whether the federal “legal underpinnings of our precedent have changed or disappeared altogether.” As discussed below, the federal legal underpinnings of our precedent have disappeared because the United States Supreme Court requires only rational basis review in substantive due process challenges to laws regulating the use of property. In the absence of a Gunwall analysis or any other principled basis for departing from federal law, we decline to do so at this time.
Yim, 194 Wn.2d at 692 (internal citations omitted).
That’s the court’s way of saying, you didn’t ask us to make any differentiation between state constitutional law and federal constitutional law, so we’re not going to do so “at this time.” Interesting, no? I’m not suggesting the court has pre-decided that it would make such a differentiation. Just perhaps that the possibility is there.
There is another place in the state constitution the right to an abortion could be found: Article I, section 7. That provision provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
For decades our Supreme Court has recognized that “this provision is qualitatively different from the Fourth Amendment and provides greater protections.” State v. Muhammad, 194 Wn.2d 577, 586, 451 P.3d 1060, 1069 (2019). Article I, section 7 recognizes “the right to privacy is broad, and the circumstances under which that right may be disturbed are limited.” State v. Arreola, 176 Wn.2d 284, 291, 290 P.3d 983, 988 (2012). A statute can authorize intrusion into the broad privacy right, but only to the extent “reasonably necessary to further substantial governmental interests that justify the intrusion.” Id. at 292. The inquiry “focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass.” State v. Jackson, 150 Wn.2d 251, 259–60, 76 P.3d 217, 222 (2003) (internal quotations and citation omitted).
There are probably hundreds of appellate decisions in the state that explicitly state this provision is more protective of an individual’s right to privacy than the federal 4th Amendment. For example, the Washington Supreme Court has held that article I, section 7 of the state constitution protects an individual’s privacy interest in bank records. State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864, 869 (2007). The Fourth Amendment does not. Under article I, section 7, “warrantless searches are presumed unreasonable” and “[e]xceptions to this strict rule are limited and narrowly drawn.” State v. O'Neill, 110 Wn. App. 604, 608, 43 P.3d 522, 524 (2002). The vast majority of these cases involve criminal prosecutions and searches by government authorities and/or arrests.
There have been a few occasions where our courts have looked at article I, section 7 in a non-criminal prosecution setting. For example, a few years ago the Washington Supreme Court looked at whether the right to privacy articulated in article I, section 7 protected state employees from having their birth dates disclosed in documents responsive to Public Records Act requests. Wash. Pub. Emp’s Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 504-08, 450 P.3d 601, 611-14 (2019).
In that case, the court explained that it had previously recognized two constitutional interests protected by article I, section 7: “the right to autonomous decision-making and the right to nondisclosure of intimate personal information, or confidentiality.” Id. at 504. It noted it had only recognized the autonomy right as a fundamental right, which it defined as “issues related to marriage, procreation, family relationships, child rearing and education. Id. Accordingly, the state must meet strict scrutiny in its attempts to infringe on that right and “identify a compelling governmental interest to justify such action.” Id.
All that seems positive, except when you trace back the origins of this autonomy right in the state cases, it ultimately rests on analysis of federal law. In this case, the legal support goes back to Whalen v. Roe, 429 U.S. 589, 598–600, 97 S. Ct. 869, 876-77, 51 L. Ed. 2d 64 (1977). Whalen relies in part, but not entirely, on the analysis in Roe v. Wade, which has now been overturned, in noting the constitution protects an “interest in independence in making certain kinds of important decisions.” Id. at 598-600 & n. 23, n.26. So where does that leave the state constitutional right to privacy? It’s a little bit up in the air.
There are also examples of the appellate courts finding article I, section 7 provides the same protections as the federal constitution. In McNabb v. Dep’t of Corrections, 163 Wn.2d 393, 180 P.3d 1257 (2008), the Washington Supreme Court considered whether an inmate has a privacy interest protected by the constitution in refusing artificial means of nutrition and hydration. The court issued a splintered decision in that case in which no opinion garnered a majority vote. However, under these circumstances four justices would have found that article I, section 7 granted the same protections as the federal constitution. Id. at 400-01 (lead opinion). It also found that the state’s compelling interests outweighed McNabb’s rights, based in part on the judicial deference shown to prison administrative decisions. Id. at 405-06.
On the other hand, the court has also held that a terminally ill adult has a constitutional right to privacy that includes the right to refuse treatment when they are in advanced stages of a terminal and incurable illness and suffering severe and permanent mental and physical deterioration. In re Guardianship of Grant, 109 Wn.2d 545, 556, 747 P.2d 445, 451 (1987), amended sub nom. Matter of Guardianship of Grant, 757 P.2d 534 (Wash. 1988).
The other issue is that a case has to be brought in order to get the state Supreme Court to weigh in on whether there is a fundamental right to abortion in the state constitution. And not just anyone can bring the case. It would have to be someone with standing somehow, whether it’s someone who has been threatened with prosecution or faces prosecution for involvement in an abortion or somehow has their right to abortion interfered with. I’m not sure how that would come about. I suppose this may be an issue in more conservative parts of the state, but I think it could be tough to get the issue actually in front of the state Supreme Court.
All of this is to say that the safest and easiest way to protect reproductive rights is to amend our state constitution to provide for those protections. Governor Inslee has already suggested this should be done to protect reproductive rights in the future. So that may be coming. I also expect we’ll see a flurry of new legislation in next year’s legislative session.