WASHINGTON, D.C., May 11, 2022 –Political journalism outlet Politico released a leaked Supreme Court draft opinion on May 2, that would reassess its ruling in Roe v. Wade while considering its pending Dobbs v. Jackson’s Women’s Health Organization case.

A day later, the Supreme Court released a statement affirming the authenticity of the draft opinion but added “it does not represent a decision by the Court or the final position of any member on the issue in the case.”

Following the leak, New York Democrat and Senate Majority Leader Chuck Schumer introduced The Women’s Health Protection Act of 2022 that would make the Roe decision law. The Senate, which is 50-50 split Republican and Democrat, voted on the bill May 11, which would prevent states from banning abortion before fetal viability. The bill failed, 49-51, with Sen. Joe Manchin (D-West Virginia) voting with all Senate Republicans.

If the Supreme Court does overturn Roe v. Wade, abortion will be determined on a state-by-state basis. So, what does that mean for Washington?

States where abortion will most likely remain legal

Access to abortion has already been made a fundamental right in 16 states and the District of Columbia including California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington.

If the Roe v. Wade decision is overturned abortion will remain available to any pregnant person who lives in or who can travel to these states, however some experts speculate that states may make it illegal to travel to a different state for an abortion in the future.

In Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming pre-Roe laws already exist prohibiting abortion, but are preempted by the Supreme Court’s ruling, and, if overturned, would automatically go into effect.

The removal of Roe protections may also prompt new anti-abortion restrictions in other states without the Supreme Court’s decision standing in the way. So far, in 2022, 1,991 provisions relating to sexual and reproductive health and rights have already been introduced across 46 states and the District of Columbia, a report by Guttmacher Institute states.

However, it is unlikely Washington will be one of the states that restrict or prohibit a woman’s right to have an abortion based on Initiative 120 and the Democratic Party controlling the Governor’s Office, Secretary of State, Attorney General, and both chambers of the state legislature. 

State Senator Patty Murray voted today to codify Roe v. Wade into law. Republican candidate for State Senate Tiffany Smiley has voiced the opposite proudly stating she is “100% prolife.”

I won’t beat around the bush: I am furious.

Republicans just voted to force women to be pregnant and give birth when they don’t want to. They want this generation of women to have fewer rights than I do. How dare they.

We’ve got to fight back.

— Senator Patty Murray (@PattyMurray) May 11, 2022

“Washington state can count on Patty Murray to stand up for our values and fight every day for reproductive rights, but Tiffany Smiley will stand with her extreme GOP backers like Mitch McConnell and take reproductive rights away,” Tina Padlodoski, Washington State Democratic Party Chair, released in a statement May 2.

“The fallout of this kind of ruling will be devastating—we are talking about millions of women in this country who will be forced to carry a pregnancy to term no matter their personal circumstance—and, yes, we are talking about situations like rape or incest,” Senator Patty Murray (D-Washington) wrote in a statement to the Lynnwood Times. “What people here in Washington state need to know is that the modern Republican Party won’t stop here: Senate Republicans are already working on a federal abortion ban that would overturn the protections we have in place here in Washington state and they are fighting to restrict access to birth control and other reproductive health care, too.”

Congressman Rick Larsen (WA-02) has also taken a clear stance on protecting women’s rights to choose stating, “if it stands this will be an outrageous attack on women across America. We must not let it stand.”

“While the draft from the court would send the question on abortion access back to the states – where over half of women and girls of reproductive age could face immediate bans or limits to this basic medical care – I have no doubt that anti-abortion activists will not stop there,” Congresswoman Suzan DelBene (WA-01) said on the House Floor on May 11, 2022.  

The Lynnwood Times reached out to Governor Inslee’s Office asking if he would veto any legislation that would restrict a woman’s right to choose but received “we don’t normally comment on hypotheticals” in response.

“It’s unlikely the Legislature would send such a proposal to the governor’s desk restricting access to abortion. It’s much more likely the Legislature would send him policies that help protect access,” Mike Falk, Deputy Communications Director and Press Secretary for Governor Inslee’s Office told the Lynnwood Times.

Abortion, Washington and Initiative 120

On November 5, 1991, Washington voters approved initiative 120 (50.4% to 49.96%) declaring that a woman has a right to choose physician performed abortion prior to fetal viability (24 to 25 weeks into pregnancy).

The initiative made it Washington State public policy that:

• Every individual has the fundamental right to choose or refuse birth control;
• Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by this act;
• Except as specifically permitted by this act, the state shall not deny or interfere with a woman’s fundamental right to choose or refuse to have an abortion; and
• The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.

Based on current Washington law, the overturning of Roe v. Wade would not have an immediate effect or impact. However, if the decision is overturned, a woman’s right to choose would not be protected by the U.S. Constitution, the state legislature in Washington would have the ability at any time to expand or prohibit the termination of a pregnancy.

Any action by the legislature would need to be signed by Governor Inslee, who holds veto power. In Washington, a governors can veto entire bills and entire sections of legislation. A veto by the governor can be overturned with two-thirds vote by the legislature.

What is the Roe v. Wade decision?

Roe v. Wade was a landmark decision in the Supreme Court when the court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction, striking down many state and federal laws, in 1973.

The decision involved the case of Norma McCorvey, better known by her pseudonym “Jane Roe” who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas where abortion was illegal. Her attorneys Sarah Weddington and Linda Coffee filed a lawsuit on her behalf in U.S. federal court against her local district attorney Henry Wade, alleging that Texas abortion laws were unconstitutional.

A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in McCorvey’s favor and Texas appealed to the U.S. Supreme Court.

In January, 1973, the Supreme Court issued a 7-2 decision ruling in McCorvey’s favor ruling that the Due Process Clause on the Fourteenth Amendment to the United States Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose to have an abortion.

Roe v. Wade’s legal rulings were modified by the Supreme Court decision of Casey v. Planned Parenthood in 1992, holding that a woman’s right to choose an abortion is protected by the constitution but abandoning Roe’s trimester restrictions before fetus viability.