Washington

Washington

Washington had two sets of pre-Roe abortion statutes. Older statutes prohibited performance of an abortion upon a woman unless the procedure was “necessary to preserve her life or that of [her] child,”^¹ and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).^² In November 1970, however, the voters approved by referendum a new abortion act.^³ This act, which by its terms did not repeal the older statutes,^⁴ allowed abortion on demand of a woman “not quick with child and not more than four lunar months after conception.”^⁵ Following Roe v. Wade, the attorney general stated that the hospitalization requirement in the statutes adopted in November 1970 was unenforceable during the first trimester of pregnancy, and that the residency requirement was also unconstitutional.^⁶ The parental consent requirement was declared unconstitutional on federal constitutional grounds by the Washington Supreme Court in State v. Koome.^⁷ Washington repealed all of its pre-Roe statutes in 1991,^⁸ and the overruling of Roe v. Wade would not revive those statutes. Abortions could be performed for any reason before viability, and for virtually any reason after viability.^⁹

^¹ Wash. Rev. Code Ann.§ 9.02.010 (West. Supp. 1971).

^² Id. § 9.02.020. No prosecutions were reported under this statute.

^³ Id. §§ 9.02.060 to 9.02.090.

^⁴ Id. § 9.020.060.

^⁵ Id. §§ 9.02.060, 0.02.070. The statutes adopted by referendum imposed other conditions. An abortion could be performed only by a licensed physician in a licensed hospital or approved medical facility. If the abortion was being sought by a married woman, the consent of her husband was necessary and, if she was an unmarried minor, the consent of her legal guardian. Id. § 9.020.070. The law also required physical domicile in the State for ninety days prior to the performance of the abortion. Id.

^⁶ See 1973 Wash. Op. Att’y Gen. 7, 11-14.

^⁷ 530 P.2d 260 (Wash. 1975).

^⁸ 1992 Wash. Laws ch. 1, § 9, Initiative Measure No. 120, approved Nov. 5, 1991. The Reproductive Privacy Act declares that “every individual possesses a fundamental right of privacy with respect to personal reproductive decisions,” including abortions. Id. § 1, codified as Wash. Rev. Code Ann. § 9.02.100 (West 2003). Consistent with that declaration, the Act provides further that “The state may not deny or interfere with a woman’s right to choose to have an abortion prior to viability of the fetus, or to protect her life or health.” Id. § 2, codified as Wash. Rev. Code Ann. § 9.02.110 (West 2003). No such statement of public policy is required to make abortion legal in any State. In the absence of specific legislation making abortion criminal (either pre- or post-Roe), abortion would remain legal even if Roe v. Wade were overruled.

^⁹ Because of its undefined health exception, Washington’s post-viability statutes, see Wash. Rev. Code Ann. §§ 9.02.110, 9.02.120 (West 2003), would not effectively prohibit post-viability abortions.