Abortion Bill Would Recognize More Providers, Shield Pregnant People From Prosecution

by Megan Burbank

If you have an abortion in Washington State, you might not see a provider with an M.D. after their name. That's normal. In our state, with requisite training and certification, advanced registered nurse practitioners (ARNPs) and physician assistants (PAs) can become abortion providers, and a new bill introduced in this year's legislative session would make it official. This proposed change to Washington's Reproductive Privacy Act, which codified abortion rights statewide in 1991, is one of several changes raised in the new bill, known as the Affirm Washington Abortion Access Act (HB 1851/SB 5766).

In addition to officially broadening the state's base of abortion providers, the bill, which was voted out of the House Health Care & Wellness Committee on Wednesday, Jan. 26, also seeks to "[preserve] a pregnant individual's ability to access abortion care" through making the language of the law gender-neutral and protecting individuals from prosecution for self-managed abortion. In what reads as a blue-state clapback to the vigilantism promoted by Texas' extreme six-week abortion ban, the bill would also shield anyone who provides assistance to someone else seeking abortion care.

The expansion of Washington State's base of abortion providers isn't new: Advanced-practice clinicians already provide abortions, supported by opinions issued by the attorney general's office under Bob Ferguson in 2019 and Christine Gregoire in 2004. But the opinion issued by Ferguson concluded that "a statutory clarification that removes any doubt about the authority of PAs and ARNPs would be ideal." The Affirm Washington Abortion Access Act would do just that, and it follows similar legislation passed by California in 2013.

With some states ready to ban abortion if Roe v. Wade is reversed or weakened later this year, it's also notable that the Affirm Washington Abortion Access Act includes language protecting Washingtonians from prosecution for self-managing or facilitating abortion — a topical development, given the rise of self-managed medication abortion and the legal questions its availability raises.

According to Sara Ainsworth, senior legal and policy director at the reproductive justice law group If/When/How, no one has been prosecuted for simply ordering abortion pills through the mail for personal use, and the Food and Drug Administration has clarified that obtaining medication abortion by mail through telehealth is unambiguously legal. But if the drugs are obtained outside of the health care system or through a pharmacy in another country, state and federal laws regulating prescription drugs introduce a legal gray area for both patients and providers.

Ainsworth says the number of people ordering pills online and using them safely and without legal consequences far exceeds the number of prosecutions, but navigating the overlap between different state and national policies can be confusing. With its protections for people who have abortions, Washington's abortion bill would help clear up that ambiguity locally. This is also why If/When/How operates a Repro Legal Helpline, which helps people sourcing abortion pills determine the legality of doing so within specific jurisdictions. As with so many things related to abortion and reproductive health, whether the law is on your side — and whether you have access to care at all — depends a lot on where you live.

The protections would also keep pregnant people from being prosecuted for their own pregnancy outcomes. While it may sound like something out of The Handmaid's Tale, this has happened: Laws against "feticide" or "fetal harm" have been used against pregnant people who self-manage abortion, miscarry, or even happen to be a victim of a violent crime while pregnant. In 2019, that's exactly what happened to an Alabama woman named Marshae Jones, who was charged with manslaughter after a shooting ended her pregnancy. In cases like these, evidence that someone has purchased abortion pills online could be used against them.

Black, Indigenous, and People of Color and folks living in poverty are more likely to be targeted by this prosecutorial overreach. "From all of the cases that we are familiar with … it's clear that you're more likely to be targeted if you're a Person of Color," said Ainsworth. "You're more likely to be targeted if you're an immigrant. All of the people targeted for these kinds of prosecutions have been low-income, with very few exceptions."

Though a case like Jones' would be unlikely to proceed in Washington, the State code does contain a fetal harm law that could open the door to prosecutions like the ones Ainsworth described. The legislature's abortion bill would keep that from happening.

Featured Image: Photo by Tingey Injury Law Firm on Unsplash with editing by Emerald Staff.