Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
D.C. Council Committee on Government Operations & Facilities Hearing on
on Bill 24-726 – “Enhancing Reproductive Health Protections Amendment Act of 2022” and Bill 24-808 – “Human Rights Sanctuary Act of 2022”
by
Melissa Wasser, Policy Counsel
July 14, 2022
Chairman White and members of the Committee, good afternoon. My name is Melissa Wasser and I am a Policy Counsel at the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 15,000 members and supporters across the District.
ACLU-DC is committed to upholding the rights of individuals to decide freely, without governmental hindrance or coercion, whether or not to bear a child. In light of the Dobbs decision at the U.S. Supreme Court, it is extremely important to enshrine more reproductive justice rights into the law and we are grateful the D.C. Council has chosen to take that crucial step. The two bills before the committee today are hopefully just two of the many pieces of legislation that the Council can propel forward to help ensure that the District of Columbia remains a place for patients to receive a safe, legal abortion.
We are pleased to testify in support of the two bills before this committee today: Bill 24-726, the Enhancing Reproductive Health Protections Amendment Act of 2022, and Bill 24-808, the Human Rights Sanctuary Amendment Act of 2022. Our testimony will focus on these two bills and our recommendations to strengthen the legislation. ACLU-DC supports both bills for taking the necessary steps of protecting patients in the District and associated conduct that is now in jeopardy due to the Dobbs decision.
Bill 24-726: the Enhancing Reproductive Health Protections Amendment Act of 2022
Bill 24-726, introduced by Councilmember Christina Henderson in March 2022, amends the D.C. Human Rights Law to expand existing protections for individuals who assist and support others with self-managed abortions outside the healthcare system. It would also protect those who provide, dispense, or transfer any product used for self-managed abortions from any penalties.
By expanding protections to those who assist a person seeking an abortion, this bill will help protect patients in D.C. seeking reproductive health care, regardless of whether they are doing so in a health care setting or self-managed at home. Access to reproductive care, including care outside of the traditional health care system, is among our most fundamental rights. By advancing reproductive health access and increasing protections for patients and those assisting them in receiving abortions in the District, the Council is protecting both residents and nonresidents alike. This bill is especially critical now considering the criminalization of reproductive health care sweeping the country after the Dobbs decision. In 2019, 68% of abortions were performed on patients who were not D.C. residents.
ACLU-DC does recommend the bill be amended to include not only individuals, but organizations and groups of individuals who assist and support others with self-managed abortions that do not qualify under the D.C. Code’s definition of a “health care practitioner.” While D.C. Code states that “the District shall not penalize an individual,” this bill is silent about protections for organizations or groups of individuals. The current definition of a “health care practitioner” is an individual, groups of individuals, partnership, or corporation, including a health care facility, that is licensed, certified, or otherwise authorized by law to provide professional health care services in the District to an individual (emphasis added). There is currently no coverage for organizations and groups of individuals who do not provide professional health care services in the District.
This gap in language means that nonprofits and abortion funds that provide support through financial help, logistical planning, or other means could be penalized for assisting and supporting self-managed abortions. Furthermore, if these organizations do not meet the definition of “health care practitioner” under the D.C. Code, they remain at risk for their support if they are not providing professional health care services. Upon introduction, Councilmember Henderson made it clear that she wanted the District of Columbia to be a safe haven for patients seeking unrestricted access to reproductive health care. To do so fully would include protections for nonprofits and abortion funds providing logistical support to patients traveling to D.C. to access abortion and for those organizations operating outside of the traditional health care system.
ACLU-DC recommends that additional language is included to expand these same protections for organizations operating outside of the traditional health care system.
Bill 24-808: the Human Rights Sanctuary Amendment Act of 2022
Bill 24-808 was introduced by Councilmember Brianne Nadeau in May 2022. If passed, the bill would make D.C. a human rights sanctuary for people seeking abortions, contraception, gender-affirming health care, engaging in lawful sexual conduct, or are in LGBTQ+ relationships. The bill would also ensure that D.C. does not cooperate in interstate investigations or proceedings that seek to impose civil or criminal liability for certain acts in the District and creates a private right of action against parties who try to infringe upon a person’s exercise of reproductive health care in D.C. ACLU-DC strongly supports this legislation for its efforts to expand protections to other legal issues impacted by the Dobbs decision, especially reproductive justice, the right to contraception, and marriage equality.
ACLU-DC also supports this legislation because it seeks to eliminate barriers that transgender and queer people face in receiving health care, including treatments specifically related to gender transition and gender affirmation. Transgender people, including transgender youth, must have meaningful, comprehensive access to transition-related care without burdensome limitations on the types of care provided. To strengthen the legislation, ACLU-DC suggests an expansion of the “gender-affirming care” definition under the new (12A-i) to read “any form of medical care” rather than "any form of surgical or other medical care” to make this language more inclusive.
This legislation has a laudable goal to protect conduct in the District that has been implicated by the Dobbs decision. The new section 105b creates a private right of action under D.C. law intending to address the harms resulting from out of state judgments. The ACLU-DC appreciates that the Council is establishing itself as a national leader in the fight for reproductive justice by addressing the harm to D.C. residents from out-of-state judgments. We share that goal.
As it is currently drafted, however, the ACLU-DC is concerned that this provision of the legislation may be open to constitutional challenges based on the Full Faith and Credit Clause of the U.S. Constitution, which requires recognition and enforcement of out of state judgments.
The text of the proposed provision provides:
"When any person has had a judgment entered against such person, in any jurisdiction, where liability, in whole or in part, is based on the alleged provision, receipt, assistance in receipt or provision, material support for, or any theory of vicarious, joint, several or conspiracy liability derived therefrom, for the receipt, provision, or facilitation of an abortion, use of contraception, gender-affirming care, living arrangement, or sexual conduct that is lawful in the District, such person may recover damages from any party that brought the action leading to that judgment or that has sought to enforce that judgment. "
To prevail on a claim under this provision, a person would have to demonstrate that a court in another jurisdiction entered a judgment against them for obtaining covered services or engaging in protected conduct in the District of Columbia. The person then may recover just damages including, but not limited to, “money damages in the amount of the judgment in that other jurisdiction and costs, expenses, and reasonable attorney’s fees spent in defending the action that resulted in the entry of a judgment in another jurisdiction; and... costs, expenses and reasonable attorney’s fees incurred in bringing this action under this section.”
While this is new constitutional territory post-Dobbs, we are concerned that this current language may be interpreted by courts as nullifying judgments from other jurisdictions. We recommend the Council revise this provision to ensure the final legislative language is clear about respecting the validity of foreign judgments when creating a private right of action under D.C. law. The ACLU-DC stands ready to work with the Council and our advocacy partners to provide updated language before the markup of this bill.
Conclusion
We are at a critical moment to advance abortion and health care access for the District. The Dobbs decision will cause and has already caused suffering for millions of people throughout our country. These bills are examples of things the District can do to combat this unfortunate decision, but we can still do more. As the District is working towards a more racially equitable and just future, we remind the Council that the brunt of criminalization lies on the shoulders of Black District residents. More work must be done to confront this, including taking a closer look at our system of criminalization within our laws. The ACLU-DC hopes to work with the Council to tackle harmful criminalization systems that still exist in the D.C. Code, both within and outside of the reproductive justice context.
The ACLU-DC recommends that this committee mark up and that the Council pass these bills before the end of this council period. With a lack of D.C. statehood and the upcoming midterm elections, time is of the essence to protect abortion access in the District before a new Congress is seated. The ACLU-DC is ready to work with you and alongside partners as you consider these bills, and we hope the Council will incorporate our recommendations to strengthen this legislation and continue to ensure access to safe, legal abortions in the District.