“You name it, there’s a lot of potential legal issues, so we’ve been spending a lot of time preparing for this,” he said at the event presented by Crosscut and Seattle CityClub.
Ferguson expressed concern that rolling back Roe v. Wade could throw other constitutionally protected rights into jeopardy — particularly those rooted, like Roe, in the right to privacy, the basis for legalizing birth control and striking down sodomy laws.
“That is what is so unusual, is [for] the court to roll back a right that’s ingrained in our constitution, in the right to privacy, which so many other rights derive from that right to privacy,” he said. “Once you roll that back, that has implications not just for women’s reproductive rights, which are profound, but for other rights that we frankly take for granted as well.”
In a concurring opinion, Justice Clarence Thomas spoke about those related rights that may face challenges next.
While Roe v. Wade concerns abortion specifically, said Ferguson, “no Supreme Court opinion operates in a vacuum by any stretch of the imagination.” He expected challenges on other issues to follow. Overturning Roe v. Wade is “the first stop on eroding other constitutional rights,” he told the audience in person at Town Hall and online. The Civic Cocktail conversation will be broadcast on KCTS-9 on Wednesday, June 29, at 7 p.m.
Although the erosion of other rights might seem extreme in Washington, which this year passed legislation expanding abortion access, it’s impossible to know what form future legal challenges could take.
Ideology and the political divide have already disrupted access to health care for many, including in Washington state. Ferguson said he has taken an active role in helping other states advocate for these rights by writing briefs in other cases that do not directly affect Washington at this time.
In Washington, hospital mergers between religious and secular institutions already strain Washington’s capacity to provide reproductive health care. And across the country, state legislatures have restricted gender-affirming care, imposing penalties on health-care providers and even caregivers and criminalizing involvement in medically appropriate, standard-of-care treatment for transgender youth.
While Ferguson, along with Gov. Jay Inslee, have previously spoken in support of a state constitutional amendment codifying abortion rights in Washington, Ferguson seemed to distance himself from that idea in Wednesday’s conversation. He still spoke of it in favorable terms, but suggested that it might not even be necessary, depending on one’s reading of the state constitution.
“I’m not convinced that that right [to abortion] in our constitution isn’t already there,” he added. “A state constitution can give you greater rights than the U.S. constitution. It can’t give you fewer rights. And our state constitution… has pretty strong language around privacy.”
Although the concept hasn’t been tested in the courts, Ferguson said the state’s constitutional privacy protections could be interpreted to include abortion rights. Of the proposed constitutional amendment, he said, “I want to be clear: I’m not minimizing that effort… I just think in the short term I’m not sure how practical it is, and No. 2, I think it’s entirely possible that right is in our state constitution,” he said.
In a worst-case scenario, according to Ferguson, Congress could compound the impact of reversing Roe by passing legislation outlawing abortion nationwide, a stated policy goal of anti-abortion activists and Republican members of Congress. If that were to happen, his office would do “everything in our power to uphold the will of the voters” in legal battles pitting state policy against the federal government.
If the balance of power were to change in Congress, said Ferguson, it would open the door to that type of federal policy.
“They will stop at nothing to do that,” he said. “They will stop at nothing and that’s how I view it and that’s how I communicate to my team to prepare for it.”
The next Civic Cocktail event will take place on July 13.
Updated to include the Supreme Court's decision.