What fighting for access to reproductive healthcare looks like in 2023

It has been several months since the U.S. Supreme Court overturned Roe v. Wade, a decision that also overturned decades of legal precedent that gave the right to terminate a pregnancy.

The right to an abortion is no longer considered a federally guaranteed legal right. Individual states have scrambled to pass their own laws to restrict access to abortions and certain kinds of reproductive healthcare. And in some states, abortion has even been criminalized.

Many Washington leaders have been vocal in their support of equitable access to reproductive healthcare and the option of abortion in the state, even as neighboring states such as Idaho move to restrict these options.

On March 21, Congresswoman Suzan DelBene (D-WA) hosted a roundtable meeting in Kirkland that was attended by Washington Attorney General Bob Ferguson, reproductive health care advocates, reproductive healthcare practitioners and other concerned Washingtonians regarding the state of reproductive healthcare, how our state is being affected, and what may be in the future for Washington state and others.

Ferguson called the Supreme Court’s decision to overturn over 50 years of legal precedent regarding the right to abortion a “radical decision,” with the only change in that time frame being the ideological make-up of the members of the highest court in the land.

Ferguson said he believes that the conservative movement across the country is clearly trying to restrict access to reproductive healthcare and trying to ban abortion outright. One of the most recent attempts in this campaign, he said, was a recent legal filing in a federal court to ban the drug mifepristone — an oral tablet that is used to end a pregnancy through the first 10 weeks of gestation.

Kristen Beneski, first assistant attorney general to Ferguson, said that there is “no medical or scientific basis” for the restrictions on mifepristone. She said it is currently one of about 60 medications that have restrictive protections in place by the U.S. Food and Drug Administration. For reference, she said drugs like fentanyl have less restrictive requirements for doctors to prescribe or administer.

Ferguson said the federal filing to restrict access to mifepristone is a designed attempt to ban it nationwide. He said there is a reason it was filed in a federal court in Amarillo, Texas, where a single Trump-appointed judge presides to make the decision that would impact access to the drug across the whole nation.

However, Ferguson said he has a plan to not only prevent mifepristone from being banned, but to expand access to the drug instead. To do this, Ferguson explained that his office has filed legal action in a federal court in Spokane to expand access to mifepristone. If successful, the two opposing federal cases may have to be mediated in other federal courts, which he explained could mean that certain regions in the nation will enforce the ban on the drug while others will not. It could also mean the issue may be decided by the Supreme Court for the whole country.

Ferguson said his office is also filing legal action against the U.S. Food and Drug Administration to expand access to mifepristone.

Out-of-state demand

During the roundtable discussion, Nicole Kern, Government Relations Manager for Planned Parenthood in Washington, said that since states like Idaho have attempted to criminalize abortion, Planned Parenthood clinics in Washington have seen a significant increase in out-of-state demand for reproductive healthcare.

Dr. Mollie Nisen with Physicians for Reproductive Health practices reproductive health care in the area. Nisen said that she has also seen an up-tick in out-of-state demand for reproductive healthcare — noting that one day she saw patients from eight different states in her clinic.

She said restrictive policies are already having an impact on health, with certain states that have adopted restrictive abortion policies, observing an up to 40 percent increase in maternal mortality rates.

Nisen said the new landscape of reproductive healthcare in the country is causing her “moral injury” as well. She said she now has to advise patients on how to avoid legal prosecution when they return to their states after she has provided them treatment — something she said feels inappropriate for doctors who are typically unequipped to do because it has never been necessary.

“It’s really heartbreaking to me, and I fear, I really fear for my patients when I send them home to Mississippi, or Alabama, or Texas that if they have some kind of delayed complications that they are going to be incarcerated or persecuted for that,” Nisen said. “And that as a physician is not why I got into medicine.”

Another topic of the roundtable discussion were policies being put into place by Idaho, which criminalize those who may have helped an individual seek an abortion, or even criminalize those who left the state to seek an abortion in a state like Washington.

Ferguson called policies that aim to prosecute those for actions taken in another state “highly unusual,” and said his office had a team to scrutinize those cases made by another state when they occur.

The Washington State Patrol has been directed by the Governor’s Office to not aid any law enforcement agency investigating those who may have sought or obtained an abortion.

Congresswoman Suzan DelBene emphasized the need for federal data privacy protections so data of an individual’s search history or menstrual data tracking cannot be used to prosecute someone who had an abortion.