How the overturn of ‘Roe’ still impacts Washington abortion care

Seventeen months after the Supreme Court decision, clinics and patients continue to face a maze of legal restrictions that differ from state to state.

Abortion rights protesters march through First Hill on the 50th anniversary of the now-overturned Roe v. Wade

Abortion rights protesters march through First Hill on Jan. 22, 2023, the 50th anniversary of the now-overturned Roe v. Wade ruling. (Lindsey Wasson for Crosscut)

This is part of a series updating our readers on some of our top stories of the past year.

Confusion, fear and delayed abortions for patients traveling from other states are among the lingering impacts in Washington nearly a year and a half after the U.S. Supreme Court overturned Roe v. Wade.

While Washington abortion providers knew they would be helping a lot of people from Idaho and elsewhere in the wake of the Dobbs v. Jackson Women’s Health Organization decision, the reality has been much more complicated than bringing in more providers, expanding abortion training and resources and stockpiling abortion medications, as legal battles that could further restrict abortion access.

“We’re still able to do our jobs, when so many of our colleagues are not,” said Dr. Sarah Prager, a Seattle-area abortion provider and professor of obstetrics and gynecology at the University of Washington, Seattle. “There’s always a constant sense of feeling like we need to be doing more, because we can.”

Planned Parenthood saw a 20% increase in the number of patients coming into Washington for care this summer, although it was difficult to capture more recent data, said Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawaiʻi, Alaska, Indiana, Kentucky. She called that data collection  “a moving target,” mostly blaming Idaho’s abortion bans and punitive anti-abortion policies, whose impacts “we will absolutely continue to feel in the state of Washington.”

Before Roe v. Wade fell, said Prager, it wasn’t unusual to see patients from Idaho, “but now we’re seeing every patient from Idaho.” New risks come with providing this care, as Idaho lawmakers impose provisions criminalizing providers and even ordinary people who help facilitate abortion care.

Demonstrators outside Pike Place Market during a May 26, 2022 walkout, rally and march in support of abortion rights that began at Seattle Central College. (David Ryder for Crosscut)

The most impactful – and headline-grabbing – of these has been a ban on assisting minors with out-of-state abortion travel. The law is currently on hold after a federal judge halted it from going into effect as it makes its way through the legal system. “We are pleased that [the] court put the law on hold during the pendency of this case so that Idahoans don’t have to worry that helping a neighbor access legal health care will make them a criminal,” said Janine Worthington, a spokesperson for Legal Voice, the Seattle-based legal services nonprofit that filed lawsuit against the policy in July.

Mounting criminalization efforts have had a chilling effect on providers and an impact on patients, said Sara Ainsworth, senior legal and policy director at If/When/How, an organization that operates a free legal advice and information helpline for abortion seekers. The group also offers a legal defense fund that covers attorney’s fees and provides bail and other support that people may need for pretrial release in the event that they’re criminalized for a pregnancy outcome.

“I think we didn’t realize how severely impacted OB/GYNs and other health care providers were going to be affected by the fear of being criminalized for helping somebody,” she said. The increase in abortion-related travel was one factor that led to the shield laws that Washington and other states have implemented to protect providers from out-of-state prosecutions. But the protection they afford remains untested.

While some providers in shield-law states now provide abortion pills via telehealth to patients in states that no longer have access, Ainsworth said a shield law’s ability to protect them from legal action in this scenario remains “an open legal question.”

This legal jeopardy is one of numerous points of confusion that patients, legal advocates and providers have faced since the immediate loss of Roe, in part because people were confused by what the law was in the place where they lived, explained Planned Parenthood’s Gibron.

Ainsworth said helpline callers frequently didn’t know the legal status of abortion in their states or whether clinics are open. Those who travel to Washington for care typically have a connection to the region – friends or family who can support them – said Prager and Gibron, who reported that their clinics have received patients from all across the country.

On April 27, 2023, at the University of Washington's Hans Rosling Center for Population Health, lawmakers, including primary bill sponsor state Sen. Karen Keiser, D-Des Moines, behind in gray and pink, applaud as Gov. Jay Inslee signs Senate Bill 5768, which protects abortion-pill access by authorizing the Department of Corrections to distribute a supply of 30,000 doses of mifepristone. (AP Photo/Lindsey Wasson)

The influx was expected, and “We’re not turning anybody away,” said Prager. But she’s noticed that it now takes longer for patients to be seen, and when they are, it’s often at a later gestational age.

“In my clinic, sometimes we’re booking people two weeks out, which used to not really happen,” she said. Delaying abortion doesn’t make it less safe, said Prager. But “it does become slightly more complicated as pregnancy progresses.”

It can also limit what kinds of procedures are available to patients. Medication abortion, which is used in more than half of abortions, is effective only up to 11 weeks into pregnancy.

Even in a state where abortion is legal, patients can still be confused or turned away for a procedure, so some of the patient confusion is homegrown. More than half of the hospitals in Washington are operated by religiously affiliated health care organizations, which ban elective abortion. If they do provide abortions, it’s typically only in emergency situations, which aren’t clearly defined in hospital policies.

That means that providers like Prager were already accustomed to serving patients transferred from institutions where they had been denied care, a practice she said continues despite legislation aimed at protecting providers who deliver emergency care in religiously affiliated institutions. Prager drew a parallel between state-level abortion bans and similar hospital policies: “The language is so unclear that providers are often left unsure what they can safely manage or legally manage,” she said.

In ban states, these vague policies have led to life-threatening situations and substandard care for patients experiencing pregnancy complications and miscarriage. They have also led reproductive health care providers to abandon some of these states altogether, which Gibron characterized as “abortion access deserts,” where a lack of resources is contributing to high patient volume at Northwest clinics. Some were already health care deserts more broadly, and are now losing access even to reproductive health care that does not involve abortion.

“We have two rural hospitals in Idaho who have closed down their maternity departments because they cannot recruit and retain OB/GYNs because of the hostile political climate around reproductive health care,” she said, referring to the loss of Bonner County’s only OB/GYNs and the closure of Valor Health’s labor and delivery unit.

While anti-abortion state legislators continue to enact new policies criminalizing the procedure, nationwide support for abortion rights has never been more evident. In November’s election, the issue played a pivotal role in Democratic victories in Virginia and Kentucky, and in Ohio voters passed a measure establishing a constitutional amendment protecting access to abortion. “We saw that unequivocally in states where abortion was on the ballot, we won,” said Gibron. “And so I think what we’re seeing across this country now is more than just the moment of losing Roe, it’s turning into this movement that is the march forward to reclaim access to reproductive health care in this country.”

Support for abortion has also been clear in local policies allocating municipal dollars to assist patients with logistical costs related to abortion, said Ainsworth. “All of that feels critical and necessary to eliminate barriers,” she said.

Still, there are additional legal remedies that could help people who have abortions and fear criminalization. Even in Washington, said Ainsworth, with relatively robust protections for abortion, dated provisions within the state’s legal code could theoretically be used to criminalize people for their pregnancy outcomes – “things in the books that we could get rid of.”

“There’s this crime called ‘concealing a birth,’ which we can’t find any evidence that it was ever used against anyone in our state,” she said. “But it has been used in other states to criminalize somebody for having a pregnancy loss.”

In fact, If/When/How has found that when people are criminalized for self-managed abortion, prosecutors often charge them under laws like these, which on the surface have nothing to do with abortion. While such prosecutions are rare in states with robust abortion-access protections, they’re not unheard-of – even in Washington. In 2021, Spokane police investigated a miscarriage as a possible violation of the state’s law against criminal mistreatment.

In a recent analysis of 61 similar cases – in which people were criminally investigated for terminating a pregnancy or seeking assistance in doing so – If/When/How found that people criminalized for self-managed abortion were often reported to police by people they’d shared private medical information with, including health care providers.

People of color, low-income people and immigrants are all more likely to be subjected to these investigations and prosecutions, Ainsworth said. When someone is prosecuted for a pregnancy outcome, “The demographics are similar to the discrimination and disproportionality you see in the criminal justice system writ large,” she said. “Criminalization of abortion care falls more heavily on the same targeted people.”

Abortion Timeline by Syd Gladu

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