By Darren Smith, Weekend Contributor
Ruling on statutory grounds, Skagit County, Washington Superior Court Judge Raquel Montoya-Lewis held that a public hospital offering maternity services to women must also offer abortion services. Referring patients to Planned Parenthood, the court ruled, violates state law regarding abortion services provided to patients. The suit was brought on behalf of a plaintiff patient by the American Civil Liberties Union.
The fundamental conflict in the case litigated was ostensibly due to the defendant hospital district’s position that while agreeing to offer such services, it experienced difficulty in complying due to lack of health professionals willing to perform abortions. State law does allow heath care professionals to decline to perform voluntary abortions for personal reasons.
For other public hospital districts, the ACLU served notice requesting similar compliance with state law.
In Coffee v. Public Health District No. 1, the ACLU filed on behalf of plaintiff Kevan Coffee who alleges she was unable to carry her pregnancy to term “without facing severe severe, life-threatening birth defects.” The defendants are primarily Public Hospital District No. 1, Skagit County, d/b/a Skagit Regional Health, along with several of the hospital district’s commissioners and its CEO in their official capacities. A copy of the complaint may be read HERE.
In the lead-up to the lawsuit, Plaintiff served two demand letters to Defendants in July, 2014 and February, 2015 requesting that Defendants provide medication abortions and surgical abortions in compliance with Washington state law.
In their response, two days following the second demand letter, Defendants adopted by resolution a policy concerning the Washington Reproductive Privacy Act, stating that they do not prohibit or have a written policy against providing termination services to women. Plaintiff argues, however, that Defendants do not comply with this act despite the resolution in that they do not provide for “substantively equivalent services for terminations as it does maternity care, and Defendants continue to have a practice of never performing medication abortions and of rarely performing surgical abortions for patients seeking or needing such medical care.”
In her cause of action, Plaintiff alleges the following statutory violations:
RCW 9.02.100(2) provides that “[e]very woman has the fundamental right to choose or refuse to have an abortion….”
RCW 9.02.100(4) provides, “[t]he state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.”
RCW 9.02.160 provides that “[I]f the state provides, directly or by contract, maternity care benefits, services, or information to women through any program administered or funded in whole or in part by the state, the state shall also provide women otherwise eligible for any such program with substantially equivalent benefits, services, or information to permit them to voluntarily terminate their pregnancies.”
The suit asked for Defendant to be enjoined from violating these statutes, provide such abortion services, and pay legal costs and expenses.
In a statement provided by the WA ACLU, the advocacy group stated the following information:
Kathleen Taylor, Executive Director of the ACLU of Washington, said the decision affirms reproductive rights in Washington. “The right of women to choose or to refuse to have an abortion is fundamental and has long been recognized under Washington law. We brought the lawsuit to ensure that women can access the full range of reproductive health care at public health facilities in their own communities. We hope this ruling makes the promise of the state’s Reproductive Privacy Act a reality for all women across Washington state,” Taylor said.
ACLU Senior Staff Attorney Brigitte Amiri said, “Today’s decision is a huge victory for women seeking access to abortion, and we hope it will serve as an example for hospitals throughout the country. At a time when much of our nation is facing numerous restrictions on access to abortion, it’s a breath of fresh air to have a court ensure women can get the care they need.”
The suit is part of a statewide effort by the ACLU to ensure that all public hospitals are complying with the RPA. As a result of ACLU advocacy, Jefferson Healthcare, the public hospital district in Jefferson County, put in place a new reproductive health policy that will lead to a Port Townsend hospital providing abortions as part of its full range of women’s health services.
Handling the case for the ACLU are cooperating attorneys Aalok Sharma, Kimberly A. Haviv, Rebecca Tarneja, Lauren C. Fujiu-Berger, Amara Levy-Moore, Alice Tsier, and Marvin E. Bonilla of White & Case LLP and Karen Koehler of Strittmatter Kessler Whelan; and ACLU staff attorneys La Rond Baker, Margaret Chen, Leah Rutman, and Brigitte Amiri.
I suspect there could be a later question locally in the state as to simply allowing physicians and other Planned Parenthood professionals to have hospital rights at public hospitals, or perhaps some form of business venture with planned parenthood that links their facility with that of the hospital or a contracting of providers. On a political perspective it is doubtful the current legislature and governor will muster enough votes to change Chapter 9.02 RCW to repeal such requirements recognized by the Court. The law in question stems from a citizens initiative passing in 1991.
On a national level future issues are likely to generate from this decision, especially if the ACLU brings similar actions on behalf of other plaintiff patients in states having analog statutes.
There have been concerted efforts in a few state legislatures to effectively deny hospital privileges for physicians providing this service by several means, both administrative and statutory. And in the case of such conflicts between mandates of hospitals and availability of qualifying physicians to perform abortion services in-house, hospitals could face liability.
By Darren Smith
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