The assurance of abortion rights has been assumed to be the status quo in Hawaii for decades, and many people take it for granted that this will continue without issue here, regardless of the end of the standards set by the Roe v. Wade landmark case.
But is that precisely true? The truth is, nobody can be really sure. The U.S. Supreme Court, when it struck down Roe in June, left it to the states to determine how to regulate access to abortion. Some states where abortion is severely restricted are exploring ways to preclude their residents from seeking the procedure in another state.
Hawaii may not be the quickest hop for them, but it’s easy to see some having dual purposes for a trip here, or perhaps having a military tie that draws them here.
This is why Gov. David Ige issued an executive order seeking to fend off any efforts to identify those from other states who are in Hawaii for reproductive health services, including abortion. It is a prudent preemptive step to assert that Hawaii intends to protect the rights to abortion care for all within state bounds, regardless of how the national climate on the issue has altered.
It is because the broader legal landscape has changed that Hawaii’s own status quo can’t be seen as inviolable. Officials in other states believe just as staunchly that their policies restricting abortion should apply to residents wherever they are. Some have shown interest in enforcing those restrictions even on residents who travel outside their state for an abortion.
Tuesday’s executive order in Hawaii would provide protections from civil and criminal penalties that restrictive states could impose on their residents traveling here, as well as to health-care providers who provide abortion services to non-Hawaii residents.
So far, no such law has been enacted. But in Missouri, lawmakers pushed a bill earlier this year to allow private citizens to sue anyone, including those out of state, who helped a Missouri resident get an abortion. That bill failed, but Missouri isn’t alone among those interested in an aggressive anti-abortion enforcement policy.
Concern about protecting Hawaii’s rights already has been raised as a campaign issue in Hawaii’s gubernatorial race. GOP nominee Duke Aiona, acknowledging abortion’s longstanding legal status in Hawaii, has said any change is in the hands of lawmakers, who seem unlikely to reverse course.
But if legislators do step up and pass a law codifying Ige’s executive protections — as they should — the next governor certainly would have a say at that point. Abortion access and regulations are matters that should prompt voters to ask any candidate for state lawmaking office to voice their position, especially those who want the office on the state Capitol’s fifth floor.
Hawaii has seen the writing on the wall about abortion for some time — that the days of Roe v. Wade’s protection of abortion were numbered. With the ascent of a conservative supermajority on the high court, what had been assured as a constitutional right, up until the point when a fetus can survive outside the womb, was likely to be left up to states to enshrine, or to dismantle.
The state Legislature in 2021 passed House Bill 576, which authorized advanced practice registered nurses to perform abortions, whether through medication or surgical procedures.
This had the effect of reinforcing the state’s capacity to provide abortion care in advance of the Roe ruling, but it really addressed an existing concern about the availability of pregnancy care, especially on the neighbor islands.
In testimony on that measure, ACLU Hawai‘i noted that “Currently, people on Kauai, Molokai, Lanai, and the west side of Hawaii do not have access to a local provider” of abortion services, which previously had been restricted to physicians.
The OB-GYN specialization already is burdened with disincentives — high medical liability and malpractice insurance costs. There is no need to add to the reasons weighing against these health providers choosing to practice in Hawaii.
Other states enacting civil penalties that could be imposed against Hawaii providers who offer abortion services would merely worsen the deficit of care, particularly in rural districts.
Locally, the 2022 session saw other bills that sought to extend abortion protection to “all pregnant people in the state,” addressing a potential interstate conflict, but they did not pass. Hawaii lawmakers need to try again in the coming session, using the executive order as a guide.
Other states might also provide a template. For example, Connecticut has enacted a statute protecting its residents from a Texas law that allows anyone to sue abortion providers.
The outcome of an interstate legal battle is unclear. But what’s indisputable is Hawaii’s longstanding provision that women and doctors have a substantial right to keep abortion decisions a private matter. Defending those protections in law should be the paramount concern.
