WASHINGTON'S REPRODUCTIVE PRIVACY ACT: AN INTERPRETATION AND CONSTITUTIONAL ANALYSIS
Ross Tanaka
Abstract: In Roe v. Wade, the Supreme Court declared that the "zone of privacy" inherent in the liberty component of the Due Process Clauses protected a woman's right to choose when to terminate her pregnancy. Nevertheless, in the years following Roe, the Court held that the right of choice did not include a right to state assistance in obtaining an abortion. After decisions such as Webster v. Reproductive Services and Maher v. Roe, the state may express its preference for childbirth by denying the use of its funds, facilities, and personnel for abortion. Although a majority of the Court held that such selective funding did not violate the Constitution, certain Justices argued the state's funding decision would have a coercive impact on a woman's choice. In response to the Court's decisions, Washington enacted the Reproductive Privacy Act, which requires that if the State directly or indirectly provides maternity care, it must also provide substantially equivalent abortion care. The Act also prevents the State from discriminating against the fundamental right of choice. No court, however, has interpreted the Act. Accordingly, this Comment analyzes the Privacy Act and suggests an interpretive framework for courts when determining whether the State has complied with the Act's requirements. In addition, this Comment explores the tension between the Privacy Act and religious healthcare providers that may object to abortion, ultimately arguing that this Comment's interpretation of the Privacy Act passes strict scrutiny under Article 1, section 11 of the Washington Constitution.
INTRODUCTION
Although Washington is a relatively secular state, it could soon have the highest concentration of Catholic-affiliated healthcare in the country.(fn1) Catholic healthcare providers are some of the largest in the country. In 2011 "10 of the 25 largest health systems in the nation were Catholic" and two of those systems were in the top five largest nonprofit healthcare systems in the nation.(fn2) Given its size, resources, and expertise, many Washington providers have turned to Catholic healthcare for support, either through a merger or an affiliation agreement.(fn3) If all of the pending deals go through, the number of Catholic-affiliated acute care beds in Washington may be as high as forty-four percent.(fn4)
The growth of Catholic healthcare in Washington creates a conflict between religious exercise and certain fundamental reproductive rights. Catholic healthcare providers must abide by the Catholic Health Directives, which forbid health services like abortion, birth control, and end-of-life choices.(fn5) As a result of agreements with Catholic providers, secular facilities may alter their services to comply with the Catholic Directives. For example, in Seattle, Swedish Health Services offered elective abortions for decades.(fn6) But the hospital agreed to stop when it joined with Providence Health and Services, one of the largest Catholic systems in the country.(fn7)
Nevertheless, when it comes to reproductive rights, Washington is one of the most protective in the country. Washington's Reproductive Privacy Act (the "Act" or "Privacy Act") declares that every woman has a fundamental right to choose or refuse an abortion and forbids the state from discriminating against the exercise of the fundamental right of choice.(fn8) The Act also requires that the State provide substantially equivalent abortion care whenever the State provides maternity care.(fn9) Given the entanglement of state and private funds, which can occur through affiliation agreements between public and private providers, the State's obligation to provide substantially equivalent abortion care could create a conflict for Catholic healthcare.(fn10)
This Comment suggests a framework to interpret the Privacy Act and explores the tension it creates with free exercise interests.(fn11) Part I of this Comment provides background on federal substantive due process jurisprudence in some detail. Although the Act is a state law, its purpose and substance is integrally tied to the federal abortion jurisprudence. Detailing the evolution of substantive due process helps illustrate both the scope of the constitutional right of choice and the unique concerns underlying Washington's choice to enact greater protection for abortion than currently exists at the federal level. Part II suggests an interpretation of the Act. Part III examines the potential conflict the Act creates for Catholic healthcare and explains why a potential free exercise challenge would probably be brought under the Washington, rather than the federal, Constitution. Finally, Part IV argues that the Act passes strict scrutiny under the Washington Constitution.
I. FEDERAL SUBSTANTIVE DUE PROCESS AND ABORTION JURISPRUDENCE
In 1973, the Supreme Court extended substantive due process protection to a woman's right to choose when to terminate her pregnancy.(fn12) Although the Constitution does not explicitly mention privacy, the Court recognized that a woman's decision to terminate her pregnancy lies within a zone of privacy protected by the "liberty" component of the Fifth(fn13) and Fourteenth(fn14) Amendments' Due Process Clause.(fn15) This Part traces the doctrinal shifts in the Supreme Court's substantive due process and abortion jurisprudence, focusing on the origins of Roe v. Wade(fn16) and the constitutional limits of a woman's right of choice.
A. The Rise and Fall of Lochner and Economic Liberty
Substantive due process doctrine recognizes that the Fifth and Fourteenth Amendment's guarantee that the state shall not deprive any person of "life, liberty, or property, without due process of law"(fn17) goes beyond freedom from bodily restraint, encompassing other substantive limits on the government's ability to act not specifically enumerated in the Constitution.(fn18) Although the exact substance of those boundaries have changed over time, the general principle the Court adheres to in identifying due process rights has not. The doctrine is built on the assumption that although the government has the power to enact laws for the preservation of the public good, there are certain uses of the state's authority that are antithetical to democratic governance.(fn19) Thus, due process seeks to balance the state's police power with the private sphere's liberty. During the rise of laissez-faire economics in the early twentieth century, that liberty was defined in terms of economic freedom.(fn20) Throughout this era, the Court consistently determined that the private ability to enter economic contracts was not an area of public interest, making it impervious to legislative action.(fn21)
Lochner v. New York(fn22) exemplified the Court's libertarian approach to economic legislation. In that case, the Court struck down a law preventing bakers from working more than sixty hours in a week.(fn23) The issue before the Court was whether the New York law was a valid exercise of the state's police power or "an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty."(fn24) The Court determined that the law fell into the latter category.(fn25) Because the amount of time a baker spent working had no relation to the quality of the bread, the New York law did not further the state's legitimate interest in public health.(fn26) Both the baker and the employer, as "grown and intelligent men," were deemed capable of contracting for their own wellbeing without interference from the state.(fn27)
The Court repudiated Lochner in West Coast Hotel v. Parrish,(fn28) in part to facilitate the passage of remedial New Deal legislation.(fn29) Since West Coast Hotel, the Court's approach to economic legislation largely reflects the legal positivist(fn30) approach espoused by Justice Holmes in his Lochner dissent.(fn31) Though courts and commentators routinely reject Lochner and its reasoning,(fn32) the case is nevertheless instructive. The foundation of the Court's zone of privacy and abortion jurisprudence has roots in Lochner's balancing of personal liberty and the state's police powers.(fn33) Implicit in the Lochner Court's reasoning is an understanding of personal liberty as incorporating a degree of privacy in decision-making.(fn34) The Court did not dispute the potential harm to bakers, but recognized that the legislature could not substitute its judgment for either the baker or the employer unless the state acted through a valid use of its power to further the public good.(fn35) Lochner's flaw lay in the Court's determination that the New York law had no relation to public health.(fn36) However, the idea that certain decisions are immune from state action continues today.(fn37) Though the following line of cases concerning personal autonomy leading to Roe represent a paradigm shift in the Court's understanding of what constitutes the private sphere, the Court, as in Lochner, still looks to whether the state action exceeded its boundaries by intruding into an area of solely private concern.
B. The Right to Autonomy in Personal Decision-Making
Decided squarely within the Lochner era, the Court in Meyer v. Nebraska(fn38) and Pierce v. Society of Sisters(fn39) extended the concept of liberty in economic decision-making to autonomy in choices related to...
