Dobbs v. Jackson Women’s Health

In the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health, civil and even criminal penalties on abortion care are beginning to take effect around the country. In response, Governor Inslee has said he will not extradite anyone from Washington on charges brought under such laws, and the Seattle City Council recently declared the city to be a sanctuary for abortion rights.   Although these pronouncements are commendable, the protection they provide is not ideal.  It is small comfort to a person who is charged with a crime by another state to know that they cannot be arrested on the charge so long as they don’t leave our city or state.  Could full spectrum[1] reproductive healthcare providers who provide care exclusively in Washington State be exposed to these laws?

Under certain circumstances, yes: there is a risk that laws banning full spectrum reproductive healthcare in other states could affect providers in states where such care is lawful, including Washington.   And there is a significant chance the Supreme Court might allow state laws to have such reach.  Although in 1975 the Court upheld the right of a Virginia newspaper to publish advertisements for abortion services that were illegal in Virginia but available in New York, Bigelow v. Virginia. 421 U.S. 809 (1975), that decision was based on Roe v. Wade’s special constitutional protection for abortion services, which Dobbs took away. 

But if providers comply with Washington law and make it clear they are doing so, their risks can be minimized, even if purportedly interstate bans are enacted by other states.  The key is the concept of “personal jurisdiction,” a court’s authority over a person or company. Personal jurisdiction is most commonly based on physical presence in the state where the court is located, but it can also be based upon actions which occur partly in that state, or which state law declares to have harmful effect inside the state. The U.S. Constitution requires that a person or action have at least “minimal contacts” with a state before the courts of that state can exercise personal jurisdiction.

In the context of civil liability (for example, a lawsuit seeking monetary damages), out-of-state persons or companies have sufficient “minimal contacts” to support jurisdiction when their “conduct and connection with the forum State are such that [they] should reasonably anticipate being haled into court there . . .” Worldwide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980). An “isolated occurrence” won’t establish jurisdiction, but contacts that result from direct or indirect “efforts” may be sufficient. Id. The Worldwide Volkswagen case held that the corporation did not have the necessary “minimal contacts” with Oklahoma because it did not sell or attempt to sell anything there, did not take advantage of any Oklahoma law, did not solicit Oklahoma business, and did not regularly sell to Oklahoma customers either directly or indirectly. If a Washington provider made direct or indirect “efforts” to offer abortion care to residents of a state where such care is illegal, they could be subject to a civil lawsuit in the courts of the other state if that other state’s laws allow for it.   

In the context of criminal law, personal jurisdiction typically requires the defendant to commit some act within the state. However, some offenses allow a state to criminally prosecute someone who never sets foot in the jurisdiction. For example, the crime of conspiracy occurs when (1) a person agrees with one or more other persons to engage in or cause a crime and (2) any of those persons takes a “substantial step” in furtherance of the agreement. A state has jurisdiction over a conspiracy if any member of the conspiracy is located within the state when the agreement is made, or if any “substantial step” to carry it out occurs there. In a conspiracy, the crime is the agreement, not the underlying activity. Thus, Washington providers should not agree to provide an abortion to patients who are located in states that ban such care.

However, strictly speaking, this is nothing new.  Washington health care providers generally cannot treat patients who are located in other states; and they cannot treat any patient in any manner until and unless the prospective patient has given their informed consent to the procedure, pursuant to Washington law.  RCW 7.70. Because of that, a Washington provider should not agree to perform an abortion on a person who is outside the state; they should only agree to provide the person with the information necessary for that person to decide whether to undergo the procedure—and to perform the procedure if, and only if, the person decides to have it while in Washington, in the manner required by Washington law. In other words, patients do not come to Washington to have an abortion; they come to Washington to discuss, and decide, whether or not to have an abortion, and then to have one if they decide to do so while here in Washington. Although some states may attempt to criminalize traveling for the “purpose” of having an abortion, we think it unlikely that any state could criminalize traveling for the “purpose” of discussing abortion, and even more unlikely that the courts would uphold such a law. So Washington providers may be able to give themselves and their prospective patients considerable protection simply by making clear in their advertising and all communications that what they are offering is the opportunity to discuss the risks and benefits of all available procedures, and to undergo the procedure if, while in Washington, the patient decides to do so. 

The law in this area is rapidly changing and developing on the state and federal level.  There is no way to predict the scope of future laws or their application to particular circumstances.  Persons or entities engaging in activities which may expose them to civil or criminal liability should consult a lawyer to protect their rights and ensure compliance with the law.   

If you are contacted by an official, investigator or law enforcement officer regarding this or any other potentially criminal matter, you should respectfully: (1) not answer any questions, not volunteer any information, and not give permission to search your person or property, (2) ask for a copy of, and cooperate with, any orders, subpoenas, or warrants, and (3) ask for permission to leave, and if detained, ask to speak with an attorney.

If you are seeking legal advice or believe your rights have been violated, contact our civil rights attorneys today: 206-662-1604, info@mhb.com.  This is a blog post, intended for general educational purposes, not legal advice.

[1] The terms “full spectrum” reproductive healthcare and “abortion care” are used interchangeably and refer to the wide variety of medical interventions used throughout human history to end pregnancies.