Earlier this month, Councilmember Brianne Nadeau and nine of her colleagues introduced the “Human Rights Sanctuary Amendment Act of 2022,” which would, in Councilmember Nadeau’s words, “protect the rights of District residents to live with whom they please, love whom they love, and control their reproductive destinies. It makes the District a safe haven for trans youth who need gender-affirming care, LGBTQ+ individuals who need to preserve their families, and all people who need reproductive freedom to flourish as meaningful participants in American life.”
Councilmember Nadeau introduced this legislation in response to the leaked Supreme Court draft opinion which would obliterate abortion rights in this country, and because of the deluge of anti-gay and transphobic legislation across the nation. The basis of abortion rights is the long-held Constitutional interpretation that a “fundamental” right to privacy exists under the Fourteenth Amendment. This “fundamental” right protects people seeking abortions and is the basis for the rights that many LGBTQ+ people in the U.S. enjoy today.
Many states have not even waited for the Supreme Court to issue its final decision before moving to restrict access to and/or criminalize abortions, criminalize gender-affirming care for Alabama minors, to prohibit Florida teachers from even casually mentioning gender identity or sexual orientation, and, overall, to punish parents and youth in the states where over 300 anti-LGBTQ+ bills have been proposed in 2022 before the year is half over.
The Council’s proposed legislation continues the District’s history as a haven for those seeking to assert their right to have an abortion and (for LGBTQ+ folks) their right to enjoy the same rights and privileges as cisgender and heterosexual people. According to the Kaiser Family Foundation, more than two-thirds (69 percent) of all legal abortions obtained in the District were by out of state residents. Whenever the District has been able to protect the right to abortion services, they have done so. And, the District has long been a leader in passing and implementing LGBTQ+ inclusive laws and policies, including allowing same-gender couples to be “domestic partners" since 1992. Notably, if the District were a state, it would have the largest proportion of LGBTQ+ and, specifically, transgender residents of any state in the U.S.
This legislation would prevent the District from cooperating in efforts to impose civil or criminal liability for protected acts in the District (including seeking or providing abortions and gender-affirming care for youth) and creates a private right of action against anyone who pursues a Texas-style bounty system – firmly putting the District on the side of protecting reproductive rights in all of their forms and ensuring that the District plays no role in affirming other states’ legislative attacks on the LGBTQ+ community.
The one thing that the District can’t do is consistently help those who need it most obtain these essential health services. The District funds the provision of gender-affirming care through its Medicaid program and prevents private insurers from discriminating against individuals on the basis of gender identity (including coverage exclusions targeting trans people). (However, private insurers still find ways to limit or deny access to gender-affirming care either by creating administrative burdens or through a discriminatory interpretation of medical necessity as it applies to transgender people.)
But the District’s attempts to ensure that low-income women can obtain abortion services have been blocked by Congress. The fact is that – even with Roe v. Wade and Planned Parenthood v. Casey in place – the right to obtain an abortion has only been really meaningful for those who could afford to pay. The leaked Court opinion (if finalized) will make this right unattainable for an even larger number of pregnant people, with the burden falling heaviest on those whose rights our society too often considers expendable or non-existent – those who are Black and Brown and those who are low-income. Further, with these rights becoming increasingly criminalized, access to public benefits, housing, parental rights, and employment could be jeopardized due to systemic barriers for people with conviction records.
District lawmakers have recognized this economic injustice – which, like all economic injustice, has a racially disparate impact – and have attempted to appropriate its own locally-raised dollars to fund abortions for those who cannot afford them. However, Congress has – in all but a few years in the early 1990s and later in 2009 and 2010 – prevented the District from even spending its own money to make reproductive rights a reality in the District for those who can’t afford to pay for abortion services.
What is of increasing concern is the reality that Congress could use its “power of the purse” to go further than just preventing the District from funding essential health care for its own citizens. Congress could hold the District’s budget hostage to amendments that would outlaw abortion in the District or impose cruel, transphobic restrictions on the ability to receive gender-affirming health care services. Or Congress could simply pass legislation outlawing abortion or the provision of gender-affirming health care services for minors (and adults) nationally, leaving the District and all other states and localities helpless to protect these fundamental rights.
Legal Aid strongly supports Councilmember Nadeau’s legislation. Until the rights of women and the LGBTQ+ community are fully recognized, we can take the affirmative step of supporting of these communities within and outside of the District through the Human Rights Sanctuary Amendment Act of 2022. But we also must do all that we can to provide access to essential health services to all who need them regardless of race, gender identity, or wealth.