McKee signs order to guarantee abortion access
Activists caution legal unknowns
PROVIDENCE – Gov. McKee signed an executive order Tuesday protecting Rhode Island abortion providers and out-of-state patients from legal consequences they may face in other states for seeking or providing an abortion.
The order follows the landmark Supreme Court decision in Dobbs v. Jackson Women’s Health Organization that overturned the nearly 50 years of constitutionally protected right to abortion established in the 1973 Roe v. Wade case. Justice Samuel Alito, writing for the majority of the Court, ruled that states should decide whether and to what extent to permit abortion.
“Women should be trusted with their own health care decisions, and here in Rhode Island, we firmly support a right to choose,” McKee said in a statement. “The executive order I signed today ensures that Rhode Island will continue to stand up for reproductive health care, especially in response to the shameful U.S. Supreme Court decision overturning Roe v. Wade.”
Specifically, the order forbids any executive agency or its employees from aiding an investigation from another state that seeks a civil, criminal or professional sanction for someone or seeking or providing reproductive health care services that are legal in Rhode Island, including abortion.
It also says the governor will decline any request from other states to turn over, or extradite, someone from another state facing prosecution for receiving legal reproductive health care services in Rhode Island.
Lastly, it directs the Rhode Island Department of Health to work with local professional licensure boards to make sure the state’s health care providers do not face professional discipline for providing legal reproductive health care services.
Rhode Island’s legislature protected abortion access in 2019 when it passed the Reproductive Privacy Act. Under this law, abortion is legal up to the point of “fetal viability,” which is defined in the law as the point when there is “reasonable likelihood” of the fetus surviving outside the womb with our without artificial support, typically between
20 and 25 weeks. The law also allows abortion after viability when necessary to preserve the health or life of the mother.
Steven Brown, the executive director of the Rhode Island chapter of the American Civil Liberties Union, said that while the ACLU appreciates McKee’s action, there are still many unknowns in the post-Dobbs landscape.
“The Supreme Court ruling created a giant vacuum,” Brown said. “We’re not sure how courts will respond to executive orders like these.”
Still, he said it sends a message that Rhode Island wants to be a welcoming place to women seeking abortions that may be limited in their home states. He said the next six months will be spent looking at what additional safeguards can be passed as state laws.
“We’re all operating from ground zero,” he said. “We’re all trying to figure out what steps can be taken without contravening the [Dobbs] decision.”
Nicole Jellinek, chair of the Rhode Island Coalition for Reproductive Freedom, said the executive order is “a beginning, not an end.”
While the coalition supports the order, Jellinek said the state already has a problem in that publicly-funded health insurance plans for state employees exclude covering abortions. She said women on state coverage “may as well be living in Texas.”
“We need to make sure here in Rhode Island, we’re doing all we can to protect Rhode Islanders,” she said.
Rep. Liana Cassar (D-Barrington), sponsored a House bill in 2020 that would provide for abortion coverage in the Medicaid program and repeal the abortion coverage exclusion from publicly-funded insurance plans. The bill, named the Equality in Abortion Coverage Act, was introduced in February of 2020, but never taken up in committee.
Jellinek said bills concerning abortion access may have been held because of the uncertainty around the issue.
“We don’t want people to feel protected when, in fact, they may not be,” she said.
Jellinek and Brown both said their organizations will be focusing on passing the Equality in Abortion Coverage Act when the General Assembly reconvenes in January.
Brittany Raposa, a professor and associate director of Bar support at Roger Williams University School of Law, said she views McKee’s executive order as “a victory” but there is more that could be done.
“I think it’s strong,” Raposa said. “One issue that it doesn’t address that a lot of laws don’t is the financial barrier.”
She said she finds the extradition piece of McKee’s order interesting, because “most of the time, states do cooperate with those kinds of requests.”
There are parallels between states refusing to extradite out-of-state patients seeking abortions and states or cities refusing to cooperate with Immigration and Customs Enforcement officials, often referred to as “sanctuary cities,” she said.
“Immigration rights are also reproductive issues,” she said, and added that there is a parallel not only in the extradition piece, but in the fact that the regulations impact two “oppressed groups.”
Half a dozen other states, including Massachusetts, have also signed executive orders protecting abortion providers and out-of-state patients from interference from other states. Connecticut did so with a state law passed in May, the first state to do so.
Jellinek said there may be more legislation to protect abortion access introduced next session, and that legislators and organizations including the coalition and the ACLU will be watching to see how legal challenges to similar executive orders and laws play out in other states.
“There’s definitely a movement to be proactive while also figuring out what’s going on nationally,” she said.