DC wants to be a sanctuary for abortion. Could Congress stop it?

·5 min read
<span>Photograph: Evelyn Hockstein/Reuters</span>
Photograph: Evelyn Hockstein/Reuters

The patient came from Texas. Her pregnancy was too far along to end it in that state, where abortions are banned after six weeks of pregnancy.

She was a bundle of nerves: terrified a bounty hunter might report her for seeking the procedure, even out of state; nervous about the logistics of the trip and meeting a new provider; worried the procedure might take longer than expected, or, worse, not happen at all.

Family and friends had pulled together the resources for travel, for the procedure itself, and for childcare, but the patient needed to get back to her kids the same day.

“There was this sense of pressure because it’s like, all right, no matter how busy the schedule is, we’ve got to get this person out so that this person can get their flight to be able to get home,” said Serina Floyd, the patient’s physician in Washington DC, more than a thousand miles away.

In this case, everything went fine – but it underscored the complications of seeking and providing health care in a country increasingly hostile to reproductive rights.

After the explosive leak of the draft of the supreme court decision that would reverse the constitutional right to abortion in the US, providers like Floyd are gearing up for surges of patients from states where abortion would be or is already heavily restricted or banned.

But in this fraught moment, Washington is in a particularly unusual spot. Non-residents frequently seek abortion care here, and local leaders are weighing legislation to designate it an official sanctuary city for abortion. The new law would protect patients and providers from out-of-state investigations or “Texas-style bounty claims”, where ordinary citizens may sue anyone suspected of aiding or performing an abortion.

Yet Congress has outsized control of the city’s laws and finances, with the ability to block any local legislation before it becomes law, to set new laws for the district independent of voters, and to restrict the use of local taxpayer dollars and federal funding to the city – giving rise to worries that Congress could block future laws protecting reproductive health or implement new ones against voters’ will.

While DC residents are US citizens who pay local and federal taxes, they have no representatives to Congress to control these outcomes. “Shadow” representatives to Congress from DC are not allowed to vote on federal laws. The local refrain is that Washingtonians have “taxation without representation”.

Because Congress also has final approval of the district’s funds, federal lawmakers can overrule laws passed locally on how to use DC taxpayer dollars. Congress has blocked previous laws passed by the district that would grant health insurance for same-sex domestic partners, legalize cannabis, and set up needle-exchange programs, for instance.

Using federal funds, including Medicaid, for abortion is prohibited under the Hyde Amendment. But in 1988, Congress went a step further in DC with the Dornan Amendment, also banning the use of local taxpayer funds for abortions – a decision that all 50 states are permitted to make on their own.

In 2020, DC passed legislation protecting abortion rights and access, a move that “very clearly put forth the will of the people in the district,” said Laura Meyers, president and CEO of Planned Parenthood of Metropolitan Washington.

But local leaders are concerned that a more conservative Congress could overrule these rights and ban abortion in the district outright, or further limit the city’s ability to provide resources to patients seeking reproductive health care.

“I am very concerned that if Republicans take control, we could even have a Texas-style abortion bounty system here, and I’m also concerned if Roe is overturned that abortion could be banned in DC,” said Eleanor Holmes Norton, DC’s nonvoting delegate to the US House of Representatives.

“DC already considers itself a sanctuary city,” Norton said. Yet “we are vulnerable in a way no other jurisdiction is.” She is continuing to push for DC to become the nation’s 51st state, which would grant it the same autonomy that other US states have.

“Until DC has full statehood, of course, we stay in this limbo,” Meyers said. “Congress has at various points in time treated DC like a political football. It has experimented, in terms of policy, in ways that a congressman from, let’s say, Oklahoma, would never dream of doing to Nebraska.”

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DC has the highest abortion rate in the US, but the majority of abortions – 69% in 2019 – are for patients from elsewhere. Many come from neighboring Virginia and Maryland, as well as from Pennsylvania, Florida, Georgia, Ohio, and Texas.

“We are already seeing an increase in patients from other states,” Meyers said. She expects to see a greater rise as more states pass restrictions and in light of the expected fall of Roe v Wade.

Providers like Floyd are already planning for a surge – hiring patient navigators to help people access care, changing staffing and workflow plans to accommodate as many patients as possible, and increasing telehealth services to provide medication abortion, among other services.

Patients from states restricting abortion may have to travel long distances to access health care. It’s an expensive and time-consuming process – finding a place to stay, arranging transportation, taking off work, finding childcare, and paying for all of it – that will exacerbate inequality and add more pressure to already marginalized patients, experts said.

“This will fall disproportionately on poor women, especially poor women of color, and we will continue to see ever-widening disparities and inequities,” Meyers said.

The US has the highest rate of maternal mortality in the developed world, and black women in particular are three times more likely than white women to die from pregnancy.

Such inequalities are sharply felt in DC, where the maternal mortality rate is twice that of the rest of America, Floyd said. “That inequity is extreme.”

Floyd also worries about legislation that could prohibit travel for out-of-state abortion care and open providers up to legal challenges.

“It’s a very important question and a very real potential risk,” she said. “What we’re facing is very scary.”

But, she added, “I do this work for a reason.” And she has no intention of stopping.