In response to the right-wing radicals on the Supreme Court overturning Roe v. Wade last Friday, Governor Inslee issued an executive order on Thursday prohibiting the Washington State Patrol from cooperating with “investigatory requests” from law enforcement agencies or prosecutors’ offices in states that prohibit abortion.
His order will shield abortion providers and out-of-state abortion patients who seek care in Washington from having their health records turned over to prosecutors in states where abortion is banned. It also directs law enforcement to refuse to cooperate with private parties who seek to enforce a prohibition against abortion under the bounty-hunting scheme Texas pioneered last year, where the state offers private individuals a $10,000 reward for successful civil suits against abortion providers or anyone who assists a pregnant person in getting an abortion.
The executive order is a necessary move in the uncertain legal environment the Supreme Court unleashed with its decision to overturn Roe. But it also lays the groundwork for a constitutional crisis not seen since the Civil War.
In a phone interview, Senator Manka Dhingra expressed no hesitation about the state taking the maximalist position codified in the Governor’s executive order. As the Chair of the Senate’s Law & Justice Committee, and as a former King County prosecutor, she said there should be no doubt that the state of Washington will refuse to be complicit in prosecuting pregnant people – regardless of the consequences.
And as she explained, the consequences for the American legal system writ large could be severe. By refusing to cooperate with a subpoena from a state that criminalizes abortion, Washington state would arguably violate the U.S. Constitution’s Full Faith and Credit Clause. That constitutional provision requires states to honor contracts, marriages, and other legal documents issued by other states’ courts.
Senator Dhingra said that once Washington refuses to comply with the first subpoena from a prohibition state, the state issuing that subpoena would have grounds for a lawsuit seeking to have a federal judge force Washington to cooperate.
She pointed out that Washington would have the right to appeal that order if the federal judge sided with the prohibition state, and she expressed hope that Congress would act to codify Roe or otherwise resolve the dispute while that litigation worked its way through the federal court system. That delay would also give Attorney General Bob Ferguson’s office time to develop a slightly more sophisticated legal argument for refusing to honor the subpoena than the one Andrew Jackson allegedly offered all those years ago: “John Marshall has made his decision; now let him enforce it.”
But it’s not even entirely clear that we’d have that luxury of time. Because the Constitution gives the Supreme Court the authority to hear any dispute between two states, Senator Dhingra admitted that it’s possible the prohibition state could try to skip the lengthy appeal process and have its case heard immediately by the same Court that just overturned Roe.
However long the process takes, the ultimate fate of Governor Inslee’s executive order will likely rest in Justice Brett Kavanaugh’s hands. In his concurring opinion in Dobbs v. Jackson Woman’s Health Organization, the case that overturned Roe, he expressed reluctance to interfere with the right to travel to seek medical care:
For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.
In a sign of the Court’s waning legitimacy, Senator Dhingra refused to commit to respecting a decision in such a case if Kavanaugh reversed himself to force Washington to comply with a prohibition state’s subpoena. If the Supreme Court did issue such an order, it would fall to whoever occupies the White House at the time of that order to send federal marshals to enforce Washington’s compliance.
Should that happen, Senator Dhingra reiterated her commitment to refuse to allow Washington to be complicit in prosecuting pregnant people. As this all plays out in the courts, Washington will remain a safe haven in this 21st Century underground railroad.