Washington state prepares for an influx of patients if abortion regulation is handed over to the states

Abortion-rights supporters gather in downtown Spokane roughly 24 hours after Politico posts a leaked draft of a U.S. Supreme Court majority opinion showing the court is poised to overturn Roe v. Wade.

With nearly 50 years of precedent enshrining the right to safe, legal abortion now at risk, the crowd of about 100 people assembles outside the Thomas S. Foley U.S. Courthouse in the rapidly planned rally May 3. Speakers from Planned Parenthood of Greater Washington and North Idaho, as well as supporters from other organizations, lead the crowd in chants, sharing their concerns and intent to continue fighting for reproductive autonomy.

"No back alleys in the night!" the crowd chants. "For safe choices, we will fight!"

Later, a young girl leads the crowd.

"My body!" she shouts. "My choice!" the crowd responds.

One woman holds a sign that says, "We are not ovary-acting." She's dressed as a handmaid from Margaret Atwood's 1985 novel The Handmaid's Tale, which depicts a dystopian future America where a cultish Christian society forcibly impregnates the few remaining women who haven't been sterilized by environmental pollution. In the book, husbands rule over all, not allowing their infertile wives, who hold a higher place in society than handmaids, to read. The wives participate in the ritual rape of the "handmaids" whose children they will later steal and raise as their own.

Wearing a long red cape and a mask meant to symbolize being silenced, the woman asks to be identified as the characters in the book are: "of" the men who control them. In this case, she refers to the conservative Supreme Court justices poised to overturn the 1973 ruling.

"I'm OfSamuel, I'm OfBrett, I'm OfClarence, I'm OfJesse, who is the husband of Amy Coney Barrett," the woman, a Spokane mother of three, tells the Inlander. "I'm Of whoever has decided that this is the time they're going to strip away our rights."

Like others at the rally, she worries about women in rural communities, people of color and those who are marginalized, for whom overturning Roe could mean the complete loss of abortion access. She recognizes privilege and the fact that wealthier women and White women will likely continue to have access, even if it means flying or driving to another state or country.

If the court overturns Roe in the way that Justice Samuel Alito suggests in the 98-page leaked draft, some at the rally ask, what could be next on the chopping block? The right to access contraception? The right to marry someone of the same gender? These decisions were also rooted in arguments around a right to privacy that was interpreted from the Constitution's liberty guarantees and its amendments.

"What's next is they're coming for LGBTQ rights. They're coming for our right to love who we want. They're coming for our right to live the way we want," OfSamuel tells the Inlander. "Six years ago, when we had the Women's March, people were like, 'Oh, calm down. Don't worry, this is never gonna be overturned. No one needs to worry about Roe v. Wade, that's safe.' Well, we were not overreacting, and this is exactly what happened."

WHY ROE IS IN JEOPARDY

The current case in question, Dobbs v. Jackson Women's Health, asked the highest court in the land to weigh whether Mississippi's restrictions on abortions after 15 weeks (which is before viability outside of the womb) should be allowed to stand, or if it should be struck down for violating the standards set by Roe and the 1992 case Planned Parenthood v. Casey, which reaffirmed the right to an abortion and reinterpreted the earlier ruling.

The Supreme Court isn't expected to release its official ruling in Dobbs until June or July. Until then, Roe remains the law of the land and access to safe and legal abortion remains a federal right.

Roe and Casey held that states cannot restrict abortions before a fetus is viable outside the womb, which with modern medicine is somewhere around 23 or 24 weeks.

Children born that early are considered very premature (a normal pregnancy lasts around 37 to 40 weeks), and they must spend months in intensive care units to allow their organs to fully develop. At 22 weeks, a Stanford study looking at births from 2013 to 2018 found that 28 percent survived. At 23 weeks, the same study found a 55 percent survival rate. The Guinness World Record for the most premature baby to survive was awarded last year to a baby born in 2020 at 21 weeks old.

A majority including at least five of the court's nine justices appears ready to not only uphold the 15-week ban as legal, but also completely overturn Roe. Politico's source reported that after oral arguments in December, four other justices joined Alito in supporting the majority opinion he was then assigned to draft, including Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

While the Supreme Court typically shows reverence for prior decisions, it has overturned precedent before, sometimes in very significant ways.

Famously, in Brown v. Board of Education (1954), the Supreme Court reversed the 1896 ruling in Plessy v. Ferguson that had found segregation to be legal. In Lawrence v. Texas (2003) the court found laws against sodomy illegal, overturning the previous decision in Bowers v. Hardwick (1986). The case Loving v. Virginia (1967) held that interracial marriage and relationships are legal, overruling the precedent of Pace v. Alabama (1882).

The Supreme Court has also had leaks before. One prominent example of when the majority thinking was leaked? The final decision in Roe v. Wade, which Time published in its weekly magazine hours before the decision was officially released.

In his majority draft for Dobbs, Alito does not pull punches, saying that "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and the decision has had damaging consequences."

Alito questions the history of abortion laws cited in Roe and tears at the constitutional interpretations finding "unenumerated" rights to privacy and/or the freedom to make "intimate and personal choices" that are "central to personal dignity and autonomy" somewhere within the 14th Amendment's mention of liberty. He also cites anti-abortion groups' arguments that times have changed, with maternity leave being guaranteed in "many cases," a growing acceptance of unmarried pregnancy and "safe haven" laws that allow people to anonymously drop their baby off at places like fire stations if they can't care for them.

In his tear down of the Roe reasoning, Alito seems to be calling his predecessors on the court "constitutional morons," says Mary Pat Treuthart, a law professor at Gonzaga who spoke on her own behalf and not that of the university.

"By saying somebody got this wrong, 'egregiously wrong' at an earlier point," Treuthart says, "you're basically saying that your predecessors on the court were constitutionally, interpretively inept. You know, that's a strong statement."

Treuthart, who went to law school just a few years after Roe was decided, says that, surprisingly, she doesn't remember the case coming up in class, as it didn't seem particularly controversial at the time.

The vote on Roe was 7 to 2, with Justices Harry Blackmun (appointed by President Richard Nixon), Warren Burger (another Nixon appointee), William Douglas (an FDR appointee), William Brennan (an Eisenhower appointee), Potter Stewart (an Eisenhower appointee), Thurgood Marshall (an LBJ appointee), and Lewis Powell (another Nixon appointee) all signing onto the majority.

Treuthart does recall some discussion about whether the right to abortion was securely rooted in a right to privacy, which is not explicitly laid out in the Constitution or its amendments.

She says some people wondered whether the right to abortion should have been rooted in gender, specifically arguing it would be discriminatory against women (modern language would also likely include transgender individuals who may become pregnant) to deny that right. While some issues such as race discrimination require a higher level of scrutiny from the court when considering cases, health and medical decisions such as abortion only require an "intermediary" level of scrutiny from the courts.

Alito's draft argues that if a right is not explicitly spelled out in the Constitution or its amendments, it needs to be "deeply rooted in the nation's history and tradition." Alito cites the thinking of people such as Matthew Hale, an English judge who, in a mid-1600s case, sentenced two women to death for being "witches," and is largely credited with the long-standing legal concept that women couldn't be raped by their husbands. Alito specifically cites Hale's writings that said "post-quickening" abortion was illegal and considered murder if the woman died. "Quickening" is the time when a woman first feels a fetus move inside the womb, around 16 to 18 weeks.

But only looking at the nation's history or the explicit text of the Constitution would leave many rights affecting, say, people of color, women and LGBTQ people out.

"Let's imagine that history and tradition has operated in a discriminatory fashion, which we know it has," Treuthart says.

Alito acknowledges there are unenumerated rights, but appears to say those decisions should be left to state lawmakers as the best representation of the will of the people, she says.

"If we had a pure legislative process, maybe more people such as myself would get on board with that," Treuthart says. "But now, state legislative decision making ... it's beholden to special interest group pluralism."

CURRENT STATE OF ACCESS

If abortion regulation falls to the states, the Supreme Court's decision could have immediate implications, with some states losing access and others working to bolster theirs.

By popular vote, Washington state passed the right to abortion in 1970 in response to multiple tragic deaths of young women who sought illegal and unsafe abortions. Now, the state ensures access to abortion before viability, and extra protections have been passed to ensure that women who miscarry cannot face criminal charges for the loss of their pregnancy.

In Idaho, lawmakers have worked to restrict abortion and passed a so-called "trigger ban" in 2020, so that 30 days after Roe is overturned, providing an abortion will become a felony punishable by at least two years in prison. The law has exceptions for cases where an abortion saves the life of the mother, and for cases of rape or incest that have been reported to law enforcement.

This March, Idaho also passed a Texas-style ban on abortion after a fetal heartbeat is detected (around six weeks). A crowd-enforcement mechanism in the law allows relatives of the "preborn child" to sue and seek $20,000 in fines from someone who provides an abortion after that cutoff. The measure was temporarily blocked by Idaho's Supreme Court in April due to legal challenges.

North Idaho already lacks abortion providers, so Planned Parenthood clinics in Spokane Valley and Pullman already see that 43 percent of their abortion patients come from Idaho, says Paul Dillon, vice president of public affairs for the local Planned Parenthood affiliate.

Planned Parenthood is the only health center that provides surgical abortions in Eastern Washington, says Sarah Dixit, public affairs manager for the affiliate. Dixit adds that part of the struggle whenever abortion restriction makes it into the news cycle is keeping patients informed about access, as it's easy to get confused.

"We got a ton of questions from folks asking if people can still get care," Dixit says of the days after the Dobbs draft leaked. "We want people to know abortion is still legal in all 50 states, and this draft isn't finalized yet."

Local health systems differ in their stance on their providers offering abortion.

Providence does not "offer procedures in which the purpose is to terminate a pregnancy," as the Catholic hospital system's belief is "that every life is sacred," according to parts of an emailed statement sent to the Inlander. MultiCare, meanwhile, a not-for-profit, nonreligious hospital system, allows its providers to "offer abortion services and referrals at their discretion," but the providers are not required to do so, according to an emailed statement sent to the Inlander.

In response to the draft, MultiCare's CEO Bill Robertson issued a statement reading, "Everyone should have full access to the health care services they need, including reproductive medicine. We believe that the decision to have an abortion — whether that be an in-person surgical procedure or an oral medication prescription — should be one made by the pregnant individual and their provider. This is not a new position for MultiCare, but one that we have been committed to for decades as a community-based, secular, not-for-profit health system."

The overturning of Roe and subsequent trigger ban in Idaho are expected to drive up patient demand for abortion in Washington and Oregon. The Guttmacher Institute, a research organization that supports abortion rights, predicts up to a 385 percent increase in women whose closest abortion provider will be in Washington state once Roe is overturned and many states totally ban abortion. Idaho is one of 26 states Guttmacher expects to ban abortion upon the decision.

Other states have set aside funding in anticipation of helping meet a higher demand for abortion access. This spring, for example, Oregon earmarked $15 million to help cover the costs of abortion for those coming from out of state.

ANTI-ABORTION GROUPS ENCOURAGED

Alito notes in his draft that Roe has only further divided the country in recent decades. Pew Research shows that 61 percent of U.S. adults think abortion should be legal in all or most circumstances, while 37 percent think abortion should be illegal in all or most circumstances. The only faith group where more people surveyed believed that abortion should be illegal in all or most cases was White evangelical Christians. Most Catholics, Black protestants, White protestants and those who were not religiously affiliated supported the right to abortion. Other faith groups in the March 2022 survey, such as Muslims, Jews, Buddhists and Hindus, did not represent large enough samples to be statistically significant.

Anti-abortion activists were quick to applaud the leaked draft, feeling that at least one battle in their fight to protect unborn life had finally been won.

Evangelical Pastor Ken Peters, who founded The Church at Planned Parenthood (TCAPP) in Spokane and has since moved his family to Tennessee to spread the efforts of TCAPP, tells the Inlander that learning of the news was "epic." He says his wife was moved to tears. They were at a worship service led by Tennessee Pastor Greg Locke when word of the draft came through.

"He made the announcement right there in the middle of his sermon," Peters tells the Inlander. "I ran up on the platform, and we hugged and high-fived and hooped and hollered for quite a while. The congregation went nuts, cheering and praising God."

While he doesn't believe the decision will end abortion, since states like Washington will still offer it, Peters says the decision did feel significant.

"It's a moment that is probably one of the greatest nights of my life," Peters says. "I'm a pastor's kid and my parents fought this battle with Roe v. Wade for 50 years approximately now. ... It seemed like it would be impossible for Roe to ever be overturned."

Peters believes and preaches that abortion is murder and is never acceptable, even in cases of rape or incest.

"I think the rapist ought to get the death penalty and whatever punishment can or may befall him, I pray that it happens," Peters says. "It's just a horrible thing. But I don't think we should murder the innocent because of somebody else's sin."

Rather than expand government assistance or programs to ensure support for those who can't afford unplanned children, Peters says he has faith that Christian families, such as people in the church communities he participates in, will be able to step in and adopt children.

As the name suggests, TCAPP's main goal is to hold religious gatherings outside Planned Parenthood clinics, where congregants often sing, yell and chant near what they view as the "gates of hell." Peters' group used to meet regularly outside of the Spokane Planned Parenthood clinic, often getting so loud that the clinic's providers and clients felt the demonstrations interfered with their services.

In a lawsuit against TCAPP, Peters, former Washington state Rep. Matt Shea (a far right figure who briefly led services with the group), and others, Planned Parenthood's local affiliate prevailed in getting an injunction against the demonstrations, which violate a Washington law against interfering with the operations of health facilities. As recently as March, judges held that a permanent injunction on the church could stand.

The Catholic Church, meanwhile, has long stood against abortion. Bishop Thomas Daly, who presides over the Spokane Diocese, was also gathered with others of faith when he learned of the leaked draft, but the reaction was far more muted. Daly tells the Inlander that he and a group of Catholic priests were gathered for a retreat when the word of the draft started coming in on Monday, May 2, but the news didn't change their plans or become a major topic of conversation.

Daly says he was somewhat wary of the leaked draft, as the leak itself seemed to be yet another indication of growing divisiveness in the country.

"Of course, the Catholic Church is clear on life issues," Daly tells the Inlander, "but [the leaked decision] just seemed to me just another expression of extreme behavior."

Daly, who has been vocally against abortion and has called for denying communion to local politicians whose actions support access to abortion, appreciates the direction of the opinion. At the same time, he says he recognizes that allowing states to decide won't likely change the situation in Spokane.

"Washington is one of those states that has by popular vote allowed for abortion," Daly says. "I've never used that reality to discourage me because I think it's the Catholic Church's position ... that life is sacred from conception to natural death."

The question then, he says, is how to show the sanctity of life to people, and how to show care for the mother who wants to keep a child, or may be poor, or the child was conceived outside of marriage.

In Washington state, Catholic churches offer a program called PREPARES Pregnancy and Parenting Support, which was started in Spokane, Daly says. The program helps people, regardless of their faith, from pregnancy until the child's fifth birthday, connecting them with community volunteers who offer parenting classes, basic needs such as diapers and clothes, support groups, and more.

"The criticism is the Catholic Church only cares about a mother when she is pregnant and once that child's born we don't care about it, and that's not true," Daly says. "I believe that PREPARES is a really clear example that we do care about that mom and that dad and that child during that period of time. So it's just not, 'Let's be pro-life and that's it.'"

"It's the Catholic Church's position that life is sacred from conception to natural death."

tweet this

REACTION AND CONCERNS

The first week of May, local Planned Parenthood staff were getting ready to meet about a Washington Post article outlining the next goals of the anti-abortion movement, which include winning back conservative control in Congress and passing a federal six-week abortion ban, Planned Parenthood spokesman Dillon says.

"That news ended up falling under the radar given what was happening that evening with the national leak of Alito's draft," Dillon says.

Ultimately, those groups hope to ban abortion completely in every state and shut down Planned Parenthood, Dillon says. The court's apparent intention to overturn Roe goes against the majority of Americans who support access to safe, legal abortion, he says, adding that our political system is often able to be ruled by the minority.

"That does not actually reflect the beliefs of how people really feel in this country," Dillon says. "And what we're witnessing is the system falling apart."

Planned Parenthood's Dixit says that American democracy is now on watch as this move may embolden those in the anti-abortion movement, who are sometimes linked with more extreme groups. Strong connections, Dillon and Dixit say, can be drawn to White supremacist groups, those who spout the "great replacement" conspiracy theory that most recently inspired a mass shooter in Buffalo, participation in the Jan. 6 insurrection, and other troubling views.

"There's a ton of overlap when you look at different movements," Dixit says.

While some may think someone who is anti-abortion deserves a "pass" for being passionate about that single issue, Dixit says it is important to recognize the links with extremism.

Pastor Locke, who was giving the sermon when Pastor Peters learned of the draft opinion, was in the news this last week as the IRS has been asked to investigate his preaching as political activity that shouldn't be tax exempt. That request apparently came after he told congregants they can't vote Democrat, calling Democrats "baby-butcherin'" "God-denying demons." During the same sermon, video shows that Locke also told his congregation "you ain't seen a insurrection yet" in reference to Jan. 6, 2021.

Peters, whose church group was barred from meeting outside of Spokane's Planned Parenthood clinic, says he was upset that Rolling Stone in January linked his anti-abortion rhetoric with a Knoxville Planned Parenthood that was burned down in an arson after he moved to the area and started growing a similar TCAPP congregation. Peters denied involvement and tells the Inlander he doesn't promote violence.

When asked whether his choices to call abortion murder, and to say murderers deserve the death penalty, might translate to someone as a call to action, Peters tells the Inlander he can't change his rhetoric simply because he's "afraid of the idiots."

"There's always some people that are one fry short of a Happy Meal, and, you know, you hope that they don't misunderstand," Peters says. "We're here to worship and pray, and we don't endorse or OK any sort of violence ever. We're here to save life, not endanger it."

But Dillon says you can't separate the violent rhetoric from how it fuels violent acts.

"They desperately try to portray themselves as either a worship service or just a protest when, if you look at their social media videos, the speeches, it paints a very different picture," Dillon says, pointing to a social media video outside the burned clinic, in which Peters' group can be heard laughing about the incident.

WHAT NEXT?

Collette Oliver-Soleil, manager of Planned Parenthood's Pullman health center, says patients are already starting to come to the center confused about whether and how they can access abortion. Some are asking for long-term birth control such as an IUD in case access to the contraceptive pill is put at risk, she says. Others have heard of plans to pass a six-week abortion ban in Washington, D.C., and misinterpreted that as meaning Washington state. Others still have asked whether Planned Parenthood's period-tracking app sells their information to third parties. Unlike some other period trackers out there, no, it doesn't, she says.

Interestingly, there's already been something of a "wave" effect at the Eastern Washington clinics during the time periods when Idaho has worked to restrict abortion, Oliver-Soleil says. For example, after Idaho passed its trigger ban in 2020, the larger health clinics in Kennewick and Spokane saw an influx of patients, so the smaller clinics like Pullman, which only offers medication abortion (in addition to a slew of other health services), saw patients who might normally have been seen at the larger clinic closest to them.

"While we were expecting to see more Idaho patients ourselves, we ended up seeing more Washington residents," she says. That could similarly be the case with the overturning of Roe.

As someone who started her adult life as an anti-abortion activist and who formerly worked as a doula, Oliver-Soleil says her viewpoint changed over time to support access to abortion. At times, she says she wishes she could show those who protest outside her health center the compassionate care her staff provides.

"I would tell them, 'Abortion is not the big, terrible, evil thing that you think it is,'" Oliver-Soleil says.

In general, Oliver-Soleil says she'd like to see less stigma around abortion health care, regardless of someone's situation.

"[For] a lot of people, the only stories they're hearing are these heartstring stories," she says. "But a lot of times it's just a normal medical procedure."

Take, for example, the patient who came in a few weeks ago and said, "I accidentally got pregnant, and I would like to not be anymore," she says.

"That pretty much sums it up," Oliver-Soleil says. "Those other stories are super important and valid, but there's validity across the spectrum."

Still, some of the rarer stories do highlight the very real threat to women's lives should they not be able to access abortion when they need to.

During a May 14 rally in Riverfront Park, English professor Elisabeth Keifer-Kraus shares her such story, saying she grew up in an anti-abortion family and did all the things she was expected to do. She waited until marriage to have sex with her husband, had a college education and a good job, and intentionally got pregnant in hopes of trying to start a family. Unfortunately, Keifer-Kraus says, two of her four pregnancies ended with her needing to opt for a safe, legal, late-term abortion.

In one case, she says she found herself looking at an ultrasound of twin boys whose brains had filled with fluid, who had no stomachs, whose growth had stopped, and who would not survive outside the womb.

"So I chose, as was my right and obligation, health care that kept my body from looming infection and allowed my sons to pass in peace," Keifer-Kraus tells the crowd. "I chose the best that I could in a terrible situation."

She also shares the story of another pregnancy, during which she suffered a placental tear and started hemorrhaging. With a bucket under her hospital bed to catch all the blood, Keifer-Kraus says her doctor told her if she went home, she wouldn't make it back. Keifer-Kraus tells the crowd that if she were in another state without abortion access, she could have died bleeding out in her car trying to get across state lines to have the abortion that saved her life.

"I think the best way to understand what's really happening is to start having conversations with those of us who've lived it, and really listen."

tweet this

She later expands on that idea to the Inlander, sharing that while she often hears that wealthy and White women will most likely maintain access to abortion no matter where they live, in cases where women are miscarrying or have an unexpected pregnancy complication like the ones she had, the distance could still be too far to save them.

"For me, you know it was a pretty emergent situation, I had probably about an hour to make a decision," Keifer-Kraus says. "If I were in a state like Mississippi that will have a flat ban with no exceptions, it would not have mattered if I had the money to get on a flight and go to another state. I wouldn't have had the time."

While she recognizes that her experiences were outliers, Keifer-Kraus says she also recognizes that the procedures that saved her life save lives every day. She sees value in open conversation with people who disagree about abortion access and feels passionate about addressing the myriad issues that lead to someone getting an abortion, such as poverty, domestic violence, rape, incest, lack of housing, lack of food security, and "the million other valid reasons women seek abortion."

"I think that the best way to understand what's really happening is to start having conversations with those of us who've lived it, and really listen," Keifer-Kraus says. "Not because we're going to change your viewpoint, but because we may be able to provoke a little compassion. That's what this conversation, more than anything, lacks on both sides." ♦