PORTLAND, Ore. — The U.S. Supreme Court's leaked draft opinion that would reverse the landmark Roe v. Wade ruling has a lot of people worried about abortion rights across the country.
Kim Clark has been busy answering questions about what it all means for states in the Pacific Northwest. She is a senior reproductive rights attorney at Legal Voice. It's a legal advocacy organization based out of Seattle that serves Washington, Oregon, Idaho, Alaska and Montana.
She said the most important thing to remember is that right now, abortion is still legal, as it has been for decades.
But she said even if the Supreme Court does end up overturning Roe v. Wade, Oregon and Washington may not see a whole lot of change.
“Abortion will still be legal in Washington and Oregon because both states have statutes that have strong protections for access to abortion,” said Clark.
Both states have laws requiring insurance carriers cover abortion. While the Guttmacher Institute says state constitutions in both Oregon and Washington don't specifically provide abortion protections, Clark said there’s a strong argument abortion is protected under state constitution.
“Both states also have the Equal Rights Amendments (ERA), which should provide protection for the right to abortion,” said Clark. But even Clark said deciphering whether an ERA protects abortion rights in particular can be complicated.
According to the Center for Reproductive Rights, “While Oregon added an equal rights amendment (ERA) by voter initiative in 2014, the ERA has not yet been interpreted as to whether it protects abortion.”
Regardless of whether the ERA could be used to protect abortion rights, people in states where there aren’t statutes protecting abortion may face a very different situation. For instance, if Roe v. Wade is overturned, people in Idaho who want to get an abortion wouldn’t be able to get one legally.
“Idaho has both a trigger ban that will go into effect if Roe is overturned, which would ban abortion in Idaho, but it […] also passed a Texas SB 8 lookalike statute that enables family members to bring private causes of action against abortion providers,” Clark said.
SB 8 is a Texas law that prohibits doctors from performing an abortion when a fetal heartbeat is detected, which is typically around six weeks of pregnancy, and doesn’t allow abortions in instances of rape or incest. It does allow the procedure in the case of a medical emergency.
Clark said if Idaho’s “trigger ban” goes into effect, it will likely force people who want to get an abortion to travel to Oregon or Washington to get care.
“Abortion providers in both states are expecting a dramatic increase in patients coming from out of state in order to access care,” said Clark.
That influx of people could put stress on providers in more ways than one. Clark said states that have banned abortion could sue providers in the Northwest.
“We're not under any illusion that the states that are banning abortion will stop at banning abortion just within their borders,” she said.
Additionally, Clark said if Roe v. Wade is overturned and an abortion ban is triggered in states like Idaho, people of color and other marginalized communities may suffer. Clark pointed to communities of color disproportionately facing negative health outcomes associated with pregnancy. In addition, people with the financial means are likely to be the ones who can travel out of state to have an abortion while those who are less privileged may be forced to carry out the pregnancy.
“Who knows what changes will come,” said former Oregon state representative Jeff Barker.
He was one of the chief co-sponsors of the 2017 bill that would become the Reproductive Health Equity Act which, among other things, protects the right to have an abortion. It also expanded access to abortion services for people who might have formerly been ineligible due to their immigration status. After seeing the Supreme Court’s draft opinion, Barker said he’s concerned about what other rights may be on the chopping block in the future — rights like gay marriage.
“We're seeing attacks on gays and trans people,” said Barker. “This is kind of breaking the dam open with this one and I worry about the future.”
Clark said the argument to overturn Roe v. Wade involves the idea that abortion isn’t considered “deeply rooted in our nation’s history and tradition.”
“What does that mean? Are we going to look to 1776 or to 1789,” said Clark.
“[Are we] going to look to the earliest days of the republic to determine values are deeply rooted in our nation's history and tradition? Because there are a lot of values that I think we hold very deeply today that may not have been deeply rooted in our nation's history and traditions in the early days of the republic.”
After seeing the draft opinion, Clark said the best possible outcome is that the court will allow states to make decisions regarding abortion.
“What we will have is an incredible patchwork of state restrictions on abortion where your right to your bodily integrity and reproductive freedom will truly depend on the state in which you live,” Clark said.
At this point, the future of abortion rights or Roe v. Wade isn’t determined yet and won’t be determined until the Supreme Court issues its final decision. Clark said traditionally, the court issues a final decision in June or July, but it’s possible the current issue could take longer.
For the time being, she said it’s important to remember that the law hasn't changed yet.
“We still have a constitutional right to abortion until a final decision is issued.”