The U.S. Supreme Court is expected to release an opinion in June 2022 that could impact the current Roe v. Wade ruling. The professional health care regulators of the State of Washington recognize that if Roe v. Wade is impacted it could raise practice concerns for our licensees.
The Washington State Medical Commission, Board of Osteopathic Medicine and Surgery, Nursing Care Quality Assurance Commission, and Pharmacy Quality Assurance Commission wrote these frequently asked questions (FAQ) to clarify how Washington regulators will continue to address this matter regardless of the U.S. Supreme Court’s ruling.
What is the history of abortion laws in Washington state?
Washington became one of the first states to decriminalize abortion before Roe v. Wade in 1970 with Referendum 20. In 1991, Initiative 120 was passed. Initiative 120 ensures that “the state may not deny or interfere with a pregnant individual’s right to choose to have an abortion prior to viability of the fetus, or to protect her life or health.”
The Reproductive Parity Act became law in June 2018. This legislation improved access to reproductive health benefits and preventive services for all Washingtonians. It also specified that health plans may not limit abortion services, and that if health coverage includes maternity care it also must provide coverage permitting abortion.
The Affirm Washington Abortion Access Act, effective June 9, 2022, helps to preserve a pregnant person’s access to abortion care. This legislation expands the list of providers statutorily authorized to terminate pregnancies and updates the language from 1991’s Initiative 120 to include transgender, non-binary and gender expansive people as those who are eligible to receive abortion care. It ensures Washington abortion care providers will be able to serve any person who comes to the State of Washington seeking abortion services.
Will abortions remain legal in Washington state?
Yes.
The law in Washington states, “every individual possesses a fundamental right of privacy with respect to personal reproductive decisions” including “the fundamental right to choose or refuse to have an abortion.” (RCW 9.02.100)
Further, state law makes it clear that no one may interfere with either a pregnant individual's right to choose an abortion prior to fetal viability or a health care practitioner’s right to provide an abortion. (RCW 9.02.110). For more on viability see below.
Under current state law state regulators cannot inhibit, prevent, hamper or interfere with a health care professional, acting within their scope of practice, from providing an abortion that meets the state standard of care.
What is an abortion and at how many weeks may an abortion be performed?
Washington law defines abortion as “any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.” (RCW 9.02.170)
In Washington, abortions are legal up to the point of fetal viability or to protect the life or health of the pregnant individual. (RCW 9.02.110) Viability is defined as “the point in the pregnancy when there is a reasonable likelihood of the fetus's sustained survival outside the uterus without the application extraordinary medical measures.”
Viability is determined by the judgement of a physician, PA, ARNP or other health care provider acting within the provider's scope of practice on the particular facts of the case. (RCW 9.02.170)
Additionally, Washington legally considers a practitioner’s good faith judgement as a defense for violations of RCW 9.02. This means that should viability or the health of the pregnant individual be in question, providers acting in good faith are generally safeguarded.
How do state regulators determine discipline and licensure if Roe v. Wade is overturned?
The ruling does not affect the way health profession regulators operate in Washington State.
Washington regulators are complaint-based. Each complaint presented to a state health care regulator will be evaluated based on its own unique facts and circumstances, as is currently the practice.
The Uniform Disciplinary Act (UDA) defines standards of discipline, licensure and powers given to health care regulators and the Secretary of Health. UDA section RCW 18.130.180 details what constitutes unprofessional conduct. Health profession regulators use their discretion, regarding both licensure and discipline to apply these laws.
In Washington, performing an abortion by means found in RCW 9.02.170, which does not harm the pregnant person and is before the viability of the fetus, does not equal a UDA violation.
Generally, Washington does not discipline or refuse licensure based solely on the status of licensure or discipline in another state.
Who may perform an abortion in Washington state?
A physician (MD), osteopathic physician (DO), physician assistant (PA), advanced registered nurse practitioner (ARNP), or other health care provider acting within the provider's scope of practice may provide an abortion as defined in RCW 9.02.170 within their scope of practice. (EHB 1851, Chapter 65, Laws of 2022)
Additionally, Washington regulation mandates that all hospitals with emergency rooms provide emergency contraception as a treatment option to any woman who seeks treatment as a result of a sexual assault. (WAC 246-320-286)
Providers can refer patients and the public to the Washington State Department of Health website for a compendium of resources regarding who can provide abortions, insurance coverage mandates, privacy laws and more: DOH Abortion Resources webpage.
May a pharmacist dispense hormonal, non-hormonal, or emergency contraceptives in Washington State?
Yes, a pharmacist may dispense hormonal, non-hormonal, or emergency contraceptives pursuant to a valid prescription or chart order. As with all other prescribed medications, pharmacists must comply with all applicable laws and rules when dispensing hormonal, non-hormonal, or emergency contraceptives, including the requirement to ensure a prescribed contraceptive is safe and appropriate for each patient (WAC 246-945-305(2).
Any complaints received by the Pharmacy Commission related to the dispensing of hormonal, non-hormonal, or emergency contraceptives by pharmacists will be reviewed and assessed. The Pharmacy Commission will evaluate each complaint on its facts and circumstances.
Several boards and commissions are united – here’s how.
The following professional health care regulators recognize that the while a U.S. Supreme Court ruling could impact the rights of pregnant individuals nationally, the laws in Washington state would not be changed by such a ruling. For information on how each commission is addressing this issue, please click on the following links:
- Washington Medical Commission
- Board of Osteopathic Medicine and Surgery
- Nursing Care Quality Assurance Commission
- Pharmacy Quality Assurance Commission