Washington Preparing for Conflict With Anti-Abortion States


The state attorney general's office and Democratic lawmakers are arming themselves for potential conflict with anti-abortion states, pursuing tactics aimed at fending off attempts to use laws elsewhere to prosecute or sue people in Washington involved in terminating pregnancies.

Attorney General Bob Ferguson announced Thursday his office recruited several Washington law firms to participate in a national network providing free legal aid to abortion patients, providers and others helping those wanting to end their pregnancies.

Democratic lawmakers, meanwhile, are moving forward with a proposed "shield law" that would block abortion-related warrants, subpoenas, extradition requests and court orders from getting traction in Washington.

Whether such legal action is forthcoming is unclear.

"I don't understand the need," said Julie Barrett, founder and president of Conservative Ladies of Washington. "I haven't heard of anybody having issues accessing abortion care in Washington."

But the legal landscape around abortion has dramatically changed since the U.S. Supreme Court overturned Roe v. Wade last June, leaving a dizzying patchwork of opposing laws around the country.

Some state laws, like Washington's, make abortion a right. Legislation in other states make it a crime: Texas abortion providers, for example, can get up to life in prison, and performing or facilitating an abortion can leave someone there vulnerable to a civil lawsuit.

"The concern is that we'll start to see those states attempt to apply their laws beyond their own borders," said Kristin Beneski, Washington's first assistant attorney general.

Anti-abortion activists and lawmakers have floated that possibility as increasing numbers of people are crossing state lines to end their pregnancies. Washington is seeing abortion patients from all over the country, including Texas and other Southern states — though the influx so far has not been as large as predicted, according to several providers.

"A lot of these issues remain untested in the courts," Beneski said. Adding to the cloudiness, hundreds of abortion bills are pending around the country, most seeking further restrictions.

James Bopp, the Indiana-based general counsel for the National Right to Life Committee, said a state with anti-abortion laws could only reach beyond its borders in limited circumstances. "As long as the conduct is in Washington, Texas law wouldn't reach it," he said.

Yet Bopp illustrates creative ways of meeting that standard, contemplating a scenario in which a Washingtonian arranges a flight for someone seeking an abortion.

"The plane takes off in Texas," he said. "That might be enough."

Bopp also added he wasn't sure whether a state could stop someone from traveling elsewhere for an abortion despite what many interpret as a constitutional right to interstate travel — noted by Justice Brett Kavanaugh in a concurring opinion on Roe. U.S. Senate Republicans last year blocked a bill that would protect such interstate travel.

Washington's official position, laid out in a "know your rights" document prepared by Ferguson's office, is that state law allows people from elsewhere to come here for an abortion.

No lawyers in Ferguson's office are participating in the pro bono service, as the office's mission is to represent the state, not individuals, Beneski said. Nor will taxpayer money be used, according to an office spokesperson. A national reproductive rights group called The Lawyering Project is managing the initiative.

State Rep. Drew Hansen, a Bainbridge Island Democrat, said he believes his proposed shield law, House Bill 1469, would give the new legal service "some extremely powerful tools."

The bill requires out-of-state entities looking to enforce abortion laws to say so when sending warrants and other legal mechanisms to Washington — and requires local officials to not honor such requests. The bill similarly protects gender-affirming care.

The proposed legislation would also create a counterclaim for those targeted by anti-abortion legal action, who could receive up to $10,000 plus damages, including attorney fees.

Proponents of the bill met with Republican opposition last month in the House Civil Rights and Judiciary Committee. Ranking minority member Jim Walsh, of Aberdeen, said he worried about "an abortion tourism industry" and, more specifically to this bill, setting up a tit-for-tat scenario.

"If we don't honor the actions of courts, of law enforcement agencies from other states, we run the risk of other states not honoring ours," Walsh said.

The bill nevertheless passed easily out of committee and waits a vote on the House floor.