Washington’s Reproductive Privacy Act already codified Roe into state law in 1991 through a narrowly successful voter initiative, and amending the state constitution is a complex process that requires more legislative backing than a typical bill. Why go through the trouble in a state with robust existing protections for abortion?
The answer lies in the amendment process itself: Simply put, it’s much harder to pass a constitutional amendment than a law, and that also means it’s harder to undo.
In contrast, Washington’s Reproductive Privacy Act can be altered through a simple majority vote in the Legislature. Last session, it was altered with the passage of the Affirm Washington Abortion Access Act, which updated state code to include gender-neutral language and to protect people from being criminalized for self-managed abortion.
That adjustment expanded the act’s protections. But while cutting abortion rights would be unlikely under the current Democrat-controlled state Legislature, the opposite is also possible.
And in some states, it’s not theoretical. Many, including Idaho, have long-standing trigger bans tied to Roe that would criminalize abortion if the Supreme Court decision is overturned. Some have already passed legislation modeled on Texas’ Senate Bill 8, which bans abortions at six weeks, before most people know they’re pregnant. The bill also allows private citizens to report anyone involved in facilitating abortion care.
Oklahoma recently moved to ban nearly all abortions, with minimal exceptions for victims of rape and incest. Without the backstop Roe provided, abortion-hostile states could soon have free rein to implement these kinds of policies. But those scenarios didn’t seem likely in Washington state.
If Roe v. Wade is indeed overturned later this summer, Inslee and state Attorney General Bob Ferguson have expressed concern about what future anti-abortion legislation might look like, and have proposed a state constitutional amendment as one possible solution.
The Republican Party “is intent to the extent humanly possible to take away the right of choice from women in the state of Washington and across America,” said Inslee during the 2022 Crosscut Festival. “And if they would obtain a majority in our Legislature and/or a governorship, they would take an action to the extent humanly possible to remove this right, and we can’t allow that.”
The procedural steps required to pass a constitutional amendment — or change an amendment once it’s part of the constitution — would set a high bar.
“Generally speaking, a constitutional right is stronger and more enduring than a statutory law,” said Inslee’s deputy communications director, Mike Faulk. “One just need look around the country to see how access to abortion is about to become subject to the whims of whatever political majority happens to be in power at any given time.”
Ferguson, who previously broadened abortion access in the state with an opinion affirming an expanded pool of providers, recently encouraged health commissions to “disregard criminal prosecutions in anti-choice states” in licensing out-of-state providers.
“If the U.S. Supreme Court eliminates the federal right to abortion and reproductive care, medical providers who come to Washington to practice should be not penalized for providing this essential care that is legal in Washington,” Ferguson said in a news release. “We have the opportunity here to stand up for our values that voters have adopted into law.”
During the Crosscut Festival, Ferguson also voiced concerns echoing Inslee’s that “a legislature could take action that would reverse those protections” of the kind Washington has. “Congress could pass a federal law that would limit abortion rights across the country,” he said.
Ferguson characterized a constitutional amendment as one possible action he thought about during the early days after the draft Supreme Court decision was leaked.
“My job is to defend and enforce Washington state law,” he said. “Here in Washington state, women have the right to a safe and legal abortion, and it’s my job and the job of my team to make sure we do everything in our power to protect that.”
Washington’s support for abortion rights has for years made it a destination for people seeking abortion across state lines. Recently, existing demand on local clinics increased with Texas’ passage of SB 8; without Roe, it will likely grow even more.
Demonstrators stage a “die-in” on East Pine Street in Seattle during a walkout, rally and march in support of abortion rights that began at Seattle Central College on May 26, 2022. Demonstrators marched through downtown, staging brief “die-ins” while lying on the pavement at multiple locations along the way. (David Ryder for Crosscut)
Using census data, the Guttmacher Institute has estimated that the number of women of reproductive age whose nearest abortion clinic would be in Washington could increase by as much as 385% if Roe is overturned.
Fifteen other states have laws similar to Washington’s that make them havens for reproductive care, and many have taken steps to address increased demand on abortion providers. Oregon has allocated $15 million to expand access to abortion care, and California Gov. Gavin Newsom has expressed his support for amending California’s state constitution to codify Roe.
In his appearance at the Crosscut Festival, Inslee said he planned to speak with legislative leaders about taking the next steps to do the same in Washington. But even with the state’s strong support for abortion rights, it’s not exactly a slam dunk: A legislative supermajority would be needed to bring the proposed amendment before voters, and Inslee conceded that “it might take another election cycle” to ensure broad legislative support.
“For anyone who says voting does not have an impact on lives,” he said, “this is it.”