OPINION: What Now? What's Next for Abortion in Washington and Beyond

by Megan Burbank

After Supreme Court Justice Samuel Alito's draft opinion overruling Roe v. Wade leaked the night of May 2, the court's credibility hit an all-time low and the outcome reproductive rights advocates long feared became prematurely real months before a decision had been expected. While the court could theoretically release a different decision when it officially rules on Mississippi's 15-week abortion ban this summer, it's incredibly unlikely, and the draft ruling itself, rooted in anti-feminist rhetoric that quite literally comes out of the 17th century, shows the activist tendencies of the court's conservative majority.

But Washington is fighting back, along with other states that support abortion rights, and the mood at rallies held May 3 at Kerry Park and Westlake Park was one of righteous frustration and a reminder that whatever five justices on the Supreme Court may think, half of Americans support abortion access.

For the Supreme Court to ignore this is a decision that "portends a future that is dark and dangerous," said Planned Parenthood Alliance Advocates CEO Jennifer Allen at the Kerry Park rally, where Gov. Jay Inslee announced his intention to enshrine abortion protections in the Washington State constitution through an amendment. Allen said the ruling would disproportionately impact People of Color, low-income people, and those with limited access to health care. "In Washington, we don't accept that fate," she said.

An official ruling is not expected until June, and in the meantime, it's important to remember that abortion is still legal across the country and will remain that way until the court releases an official decision. Still, considering what a world without Roe will look like understandably brings forth a flurry of questions. Here are the ones we can answer now.

What Happens to Abortion Access in Washington if Roe Is Overturned?

There's no national law criminalizing abortion — more on that soon — which means that in Roe's absence, states get to decide whether abortion remains legal and how strictly to regulate it. Washington State has strong protections for abortion access: Abortion access was codified into our legal code with the 1991 passage of Initiative 120, which protects the right to abortion in the event that Roe is overturned. In opposition to the Hyde Amendment's ban on federal funding for abortion, the law also allows State Medicaid dollars to cover the procedure, which means that if you have an abortion in Washington State, it can be covered under Medicaid.

What Happens Everywhere Else?

This is where things get complicated. Because there's no national law for or against abortion, states get to decide how to regulate care if the leaked decision takes effect, and every state has its own set of abortion regulations on the books: Some have trigger bans, which automatically criminalize abortion if Roe is overturned; some have old abortion bans enacted before Roe; some state constitutions have amendments prohibiting abortion access protections; and several have abortion bans that run the gamut from outlawing abortion at eight weeks' gestation to outlawing abortion in most cases. In all, 22 states have laws like these that would make abortion illegal if Roe is overturned. Additionally, four states have introduced abortion-hostile policies that suggest they'll likely ban abortion if Roe is overruled.

Can't People Just Order Abortion Pills Online?

Yes and no. Since the FDA under the Biden administration lifted restrictions on how abortion-inducing drugs can be dispensed, people seeking abortions in states that allow it have access to abortion counseling and medication abortion by mail. While this isn't available everywhere, there are online resources folks can use to order pills directly without necessarily going through a clinician. Though some local governments have tried to crack down on this, it's challenging to actually regulate, and to date no one has been prosecuted just for ordering pills online, according to reproductive justice law group If/When/How.

That said, there have been legal cases in which having ordered abortion pills online has been used against a person in a later prosecution. If you have questions about the legality of ordering pills online in the jurisdiction where you live, If/When/How operates a Repro Legal Helpline to assist folks in navigating what can sometimes be a legal gray area. And in Washington, the Affirm Washington Abortion Access Act protects people from being criminalized for self-managing their own abortions. This means that in Washington, abortion pills are much more accessible than they are in neighborhing Idaho. Telehealth abortion resources are available in Washington through providers like Cedar River Clinics and services like Plan C and Hey Jane. You can find a whole list of local providers in the Emerald's Abortion Guide.

That said, not everyone will be a good candidate for a medication abortion — they're only effective up to 11 weeks' gestation, and providers may not be able to prescribe the pills legally across state lines, so it's important to remember that while abortion pills make self-managed abortion significantly safer than it was before Roe, they are not a solution for everyone.

Couldn't Congress Legalize Abortion Nationally?

Theoretically, yes. And congressional Democrats did try to do that in 2021 with the introduction of the Women's Health Protection Act, which passed in the House but not the Senate. With the current makeup of the Senate, passing such a bill is unlikely. Since the Supreme Court draft decision leaked, some congressional Democrats have called for the filibuster to be abolished to allow a Roe codification a better chance of success, but that also seems unlikely. On the other side of the aisle, Republicans likely don't have the votes to attempt to criminalize abortion at the national level, either, so, again: It goes back to the states to decide, which means nationally, abortion access will be a patchwork based on where you live.

If Pregnant People Lose Abortion Care Where They Live, Can't They Come to Washington?

They can. They will. They already do. For the past decade, state legislatures have been introducing abortion restrictions that have in some cases nullified Roe even before the prospect of its being overturned became real. In Washington State, abortion clinics east of the Cascades routinely provide care to patients from Idaho, which has more abortion restrictions and fewer clinics. When the Texas legislature passed SB 8 in September, providers reported seeing abortion patients who'd come to the Seattle area because they couldn't get care where they lived in Texas or in neighboring states. The Northwest Abortion Access Fund (NWAAF) provides financial assistance and practical support to pregnant people seeking abortion in Washington, Idaho, Oregon, and Alaska, and has been helping Idahoans access care across state lines for years.

This isn't some grim new reality that will come to pass if Roe is overturned: It's already happening. But if Roe falls, the need will increase. The Guttmacher Institute has estimated that without the protections in Roe, the number of women of childbearing age whose nearest abortion provider would be in Washington could go up by as much as 385%. This surge may result in delayed care for Washingtonians.

I Want to Help. Should I Volunteer to Drive People to Appointments or Offer to Let People Stay With Me if They Need Care?

If you want to help, it's best not to reinvent the wheel. Reach out to a grassroots organization like NWAAF, who are already providing this type of assistance, and see how you can support their work. Abortion funds and clinics have been anticipating the Roe reversal and shoring up resources and support. They know how best to navigate systems to provide needed services. They've been around long before the Supreme Court draft decision leaked, and they'll be around long after.

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Featured Image: Two people pause during a press conference/protest at Kerry Park on Tuesday, May 3, 2022. (Photo: Alex Garland)