Here's What Could Happen in Washington if Roe v. Wade Is Overturned

by Megan Burbank

With the U.S. Supreme Court poised to overturn Roe v. Wade, the landmark decision that legalized abortion in 1973, abortion access could be newly restricted as soon as this summer. But abortion won't be criminalized overnight. Because there's no national anti-abortion law, reversing Roe would leave the future of abortion access up to the discretion of state legislatures. That means 26 states would likely ban the procedure, but in Washington State, abortion care would continue.

Back in October, when Texas' six-week abortion ban sparked speculation about the future of Roe, Stephanie Marquis of the Office of the Insurance Commissioner confirmed that this is what would happen in Washington if Roe were gutted.

When I asked Marquis that question, it seemed like a hypothetical. It isn't anymore. But activists in Washington have long been prepared for this moment.

In 1991, abortion rights advocates rallied around Initiative 120, which legalized abortion at the state level and included an economic equality provision dedicating State Medicaid funds to the procedure. With the Hyde Amendment banning federal Medicaid dollars from covering abortion care nationally, state Medicaid coverage is one way to ensure equal access for low-income patients.

The activists behind Initiative 120 saw it as a response to the backlash that followed Roe: the rise of the Moral Majority and Evangelical anti-abortion activism — values reflected in the politics of justices like Amy Coney Barrett and the overall conservative leanings of the Supreme Court's most recent appointees.

And now, as we consider the very real prospect of losing Roe, the passage of Initiative 120 means that if the decision is overturned, abortion access — and Medicaid coverage for it — will both remain in place in Washington.

Abortion access would also hold in Washington, D.C., California, Oregon, and 12 other states that also have laws protecting abortion, according to the Guttmacher Institute, which tracks state policies on abortion.

But 26 states are likely to criminalize care. Twenty-one of these states have abortion bans passed before Roe, state constitutions that ban protections for abortion, bans specific to a pregnancy's gestational age, or "trigger" laws, which immediately make abortion illegal if Roe is overturned. Based on their histories of anti-abortion legislation, five additional states are likely to follow suit.

The fallout from these bans is likely to place the burden of care on states like Washington, which already deviate from nationwide trends toward banning and limiting abortion access.

This isn't a new development.

Roe legalized abortion in 1973, but the Court's ruling in the 1992 case Planned Parenthood v. Casey allowed states to impose regulations on abortion as long as they did not constitute an "undue burden" on patients; state legislatures have imposed 1,313 such restrictions since 1973. So while overturning Roe v. Wade would be a monumental reversal of settled law, living without its protections is already a reality for people who live in states where access has been incrementally weakened over decades.

Take Mississippi, the state at the heart of the case currently under consideration, where there is only one abortion clinic, and it only provides abortion care for up to 16 weeks of pregnancy. In Texas, access to abortion was essentially nullified by the passage of SB 8, the six-week abortion ban that also deputized private citizens to inform on their neighbors for seeking or facilitating abortion care. The U.S. Supreme Court has ruled to allow a challenge against the law to advance, but won't stop the law's implementation in the interim.

Generally, when abortion access is curtailed, patients don't stop having abortions. Those with the resources to do so will often just end up crossing state lines for care in regions like the Pacific Northwest. Earlier this fall, this is exactly what happened after the Texas law was implemented: Patients from Texas traveled all the way to Seattle for care. If Idaho's "trigger" law goes into effect, this dynamic is only likely to worsen.

In California, which has also seen an influx of patients from Texas, state legislators are currently working to expand abortion services and access in response to the Roe challenge, in what The New York Times has called a bid to make the state "a sanctuary for women seeking abortions."

But states like California, Oregon, and Washington already were destination states for abortion. The country already had a patchwork of access. And a Roe reversal would simply amplify these existing disparities. If that happens, states like Washington will have to fill the gaps in care, as they always have.

And that, ultimately, could impact access for Washingtonians. Back in October, Lisa Humes-Schulz of Planned Parenthood Alliance Advocates described the domino effect that can occur when a law like SB 8 impedes abortion access. When clinics are overloaded with out-of-state patients seeking care, that can impact access even for patients living in states without restrictive laws. "The reality is that this influx of patients may increase wait times for Washington patients seeking care," she told the Emerald.

Featured image is attributed to Thomas Hawk (under a Creative Commons, CC BY-NC 2.0 license).