The Planned Parenthood clinic in Spokane, Washington, is just a 30-minute drive from the Idaho border, and since May, when Idaho’s “abortion trafficking” law went into effect, it’s been sitting on a timebomb.
Like many blue-state abortion clinics, the Spokane health center has been inundated with patients from out of state since the supreme court overturned Roe v Wade a year ago in Dobbs v Jackson Women’s Health Organization decision, allowing abortion to be banned outright or severely restricted in many states. In Spokane, they have received patients from as far away as Texas and Florida. But the new law in Idaho, which criminalizes anyone who helps a minor travel out of state for an abortion without the permission of their parents, threatens this already unsustainable reality. It is the first effort to criminalize travel for the purposes of abortion, and to make the state’s ban on abortion within its borders into something more like a ban on its citizens accessing abortion anywhere.
The Idaho law marks a major escalation in the post-Dobbs battle over abortion: an attempt by an anti-choice state to extend its abortion ban beyond its borders. And it puts a target on those who travel along the interstate highway to the Spokane Planned Parenthood. If the trafficking law is ultimately enforced – if an aunt or a sister drives a teenage girl across the Idaho border to have an abortion, and gets caught – the prosecution and civil suits that follow will more likely than not center around a procedure that takes place at the Spokane center. “Nobody wants to be the guinea pig case,” says Sarah Dixit, the public affairs manager for Planned Parenthood of Greater Washington and North Idaho. “Nobody wants to be the example of what it looks like when a state tries to enforce one of these laws.”
If Idaho gets its way, the Spokane clinic won’t have a choice.
But Washington is one of a growing list of Democratic-controlled states that are pushing back through abortion “shield” laws that aim to extend protections to doctors providing abortions to out-of-state patients and to the patients themselves. Ten states have passed different versions of such laws and more are likely to come.
In April, the state passed a set of bills that add new legal protections for medical providers, restrict the reach of out-of-state subpoenas, prohibit the use of state resources for out-of-state anti-abortion legal actions, protect patient data from use in out-of-state legal actions, and expands access to abortion care. The bills provide some much-needed peace of mind to a reproductive health field that’s reeling from anxiety and uncertainty about what’s legal, what’s actionable, and what an emboldened and inventive anti-choice movement might do next. They also advance an untested legal theory about what obligations states have – and don’t have – to honor and assist with the enforcement of other states’ laws.
The five bills, collectively referred to as Washington’s “shield law”, were signed by Governor Jay Inslee in Seattle on 27 April. But they were nearly a year in the making. The state senator Yasmin Trudeau, a Democrat representing Tacoma was one of the law’s architects. A millennial, Trudeau is acerbic and funny, and surprisingly candid for a politician. She remembers being at a state senate event with her mother when the Dobbs draft opinion was leaked on 3 May 2022. Like many women, they were both intimately invested in the abortion right: Trudeau was born when her mother, denied an abortion, was just 14. “She was forced to marry and forced to mother,” Trudeau told me. At the time of the leak, Trudeau herself was pregnant, and all too familiar with the burden and gravity of pregnancy. “Carrying a baby,” she said, “is not like carrying a purse.” She began looking into what could be done to secure the rights of women and medical providers in Washington.
Trudeau was connected to other Washington legislators looking to expand and secure abortion access in their state. Among them was Drew Hansen, a lawyer and Washington house member from Bainbridge Island who did much of the legwork in shaping the bills. Like Trudeau, he set to work as soon as he learned that Dobbs was coming. “As soon as the draft decision leaked, we started mapping out what other states would have to do to prosecute or enforce civil liability,” Hansen told me. He talked to law enforcement about what interstate prosecutions look like and require; he talked to north-west reproductive rights activists, law professors and a panel of OBGYNs. “I spent all last summer and fall incorporating their feedback, going through drafts [of the bills],” he said. The idea was to get a complete picture of all the ways that another state’s laws could impede access in Washington, and get as close as they could to eliminating them.
Washington, like other states that have passed abortion shield laws – including California, Illinois, Massachusetts, Minnesota and New York – is looking to provide some clarity in a confusing new era. Even in pro-choice states, the end of Roe v Wade has changed the abortion landscape, and providers are now staring down a vast, complex and ever-changing regime of new criminal penalties and civil liabilities imposed by anti-choice states.
The possibilities unravel in an endless stream of questions, which Hansen and Trudeau alike say they have received from anxious, uncertain medical practitioners. Could an abortion provider based in Spokane be subpoenaed to comply with the Idaho travel ban, made to describe the care they provided or incriminate someone who brought a patient to their doors? Could that same provider be sued under Idaho’s law that allows people who can claim a blood relation to an aborted fetus to file civil suits against those who facilitated an abortion? Or could she be targeted by an “aiding and abetting” clause that seeks to sweep up anyone even tangentially related to an abortion into a net of legal liability?
Many of these questions are still unanswered, looming ominously in the muck of legal chaos that Dobbs has unleashed. The Washington shield law aims to provide at least some answers: an assurance that the state will argue that no one following Washington’s laws, and acting within Washington’s borders, will be legally punished by another state while Washington stands idly by.
There are limits, however, to what a shield law can accomplish. There is only so much protection the laws can extend to the patients and their companions who travel for abortion care – and then have to travel back. Prosecutions and lawsuits are possible for returning patients and companions, because just as Washington’s shield law prevents Idaho’s anti-choice attacks from reaching over the border, Idaho also has no need to respect Washington’s own legal regime. There’s nothing in the shield law that can protect women from being prosecuted or sued once they travel back into Idaho after a legal abortion in Washington.
There’s also nothing that prevents Idaho from arresting a Washington abortion doctor if she crosses into their territory for, say, a ski trip. A doctor who practices in both Washington and Idaho may find her license suspended in the latter state over abortion procedures she provided legally in the former. Washington’s law, in particular, is not as aggressive and proactive as those of some other pro-choice states. Some, like Massachusetts, have worked to provide more protection for telemedicine providers in their state, advancing the novel new claim that medical care is subject to the laws of the state where the provider is – not where the patient is located. This means that abortion providers in Boston, under state law, can prescribe abortion medication to a patient living in, say, Florida. Not so in Washington: under the shield law there, a Walla Walla provider who prescribes pills to her Sioux Falls patient online would not be protected.
Some of this, of course, is on purpose. Both Trudeau and Hansen are eager to point out the limits of the law, casting Washington’s abortion shield regime as alternately comprehensive and constitutionally modest. Idaho, they both told me, is free to do whatever it wants – in Idaho. It’s just not free to do it in Washington. “The idea is not to interrupt what other states are doing,” Trudeau said. “We’re not the state that’s trying to come down on other states. We’re the ones trying to outline what the obligations are.”
If Trudeau sounds defensive, it might be because those obligations are not entirely clear. Abortion shield laws like Washington’s have to be crafted in ways that avoid running afoul of the full faith and credit clause of the US constitution, which states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Courts have traditionally interpreted this to allow for some degree of flexibility and discretion by states as to how they cooperate with other states, but a zealous and aggressive anti-abortion legal movement is likely to press the issue.
This is what is most confounding about shield laws like Washington’s, and what is likely to be subject to considerable fighting in federal courts: the question they raise about what the states owe to one another, and how to mitigate those obligations when they conflict with the passionately held desires – and personal freedoms – of their citizens. In an interconnected country – where commerce, social life and healthcare are all dense with inextricable interstate connections – it remains uncertain if states like Washington will really be able to legally harden their own borders, and meaningfully protect themselves from the reach of other states’ anti-abortion laws.
It raises questions, too, about just how long this country can remain so deeply and profoundly divided against itself. If legal judgements and criminal investigations no longer command inter-state cooperation, then what does it mean for the states to be in union with each other? If something is considered a fundamental right of citizenship in one state, and a crime 30 minutes away in another, then what entitlement does one state have to protect conduct that its neighbors want to prosecute? And what entitlement do other states have to stop their people leaving to a place where they might commit what the law understands as murder?
Shield laws are likely to be the subject of lawsuits between pro- and anti-choice states sooner rather than later. In a federal judiciary that has been profoundly reshaped by a conservative legal movement propelled by anti-abortion animus, it would appear likely that many federal courts will invoke the obligations of interstate cooperation, or expansive estimations of anti-choice states’ interests in preventing their citizens from obtaining abortions. But as far as Hansen and Trudeau are concerned, the abortion shield law is nothing less than an assertion of Washington state’s sovereignty, and its right to democratic self-government.
“The people of our state have spoken on this issue,” says Trudeau, and both election results and popular polling suggest that the strength of pro-choice sentiment in Washington is not ambiguous. “It’s a judgment of democratically elected officials in Washington state to decide what conduct is criminal and what is not,” Hansen says.
As for the coming constitutional challenges, he thinks he’s done his homework. “I ran it by civil procedure scholars, by constitutional law scholars. No one could identify any federal constitutional barrier or federal statutory barrier,” Hansen told me. “No one could tell me why we couldn’t do it.”
Source: US Politics - theguardian.com
