Article by Evelyn Hildebrand. Evelyn is a Virginia barred attorney and a 2020 graduate of Ave Maria School of Law.  

Washington, DC has doubled down on its decision to become an abortion haven despite its already permissive stance.  The District legally protects the “right to abortion,” offers public funding for some abortions, and imposes no restrictions on third trimester or late term abortions.

Yet according to Mayor Muriel Bowser, the status quo is not good enough.  Even though she acknowledges that the Dobbs decision does not change the legality of abortion in DC, her goal is to keep “fighting for the rights of women and girls”—read expand access to abortion no matter the cost.  The DC Council has taken up this baton with the “Enhancing Reproductive Health Protection Amendment Act of 2022.”  

The title belies a deep disregard for health: the legislation’s goal is to make abortion as available as possible no matter the known health risks associated with abortion

The Enhancing Reproductive Health Protection Amendment Act of 2022

The Enhancing Reproductive Health Protection Amendment Act of 2022 was introduced about six weeks prior to the Dobbs leak and expands the “Zone” of government noninterference in reproductive health decisions created by the DC code.  Currently, the Zone prevents DC from penalizing women for seeking or “self-inducing” an abortion.  The Act would dramatically expand this Zone to include anyone involved in procuring an abortion.  Further, the Zone would cover “any act of providing, dispensing, administering, or transferring possession of a product used for self-managed abortions to an individual who is self-managing an abortion.” As a result, delivering unlicensed medication, drugs, tools, paraphernalia, or any other product to be used for an abortion would be protected. 

The Act’s dramatic expansion of the “Zone of protection” for elective abortion does not protect women’s health and safety: instead, it puts them at risk. 

The Act’s Extreme Flaws

To start with, the Act’s language is intentionally broad and vague.  It is missing any description or limitation setting out what count’s as “assistance” to a woman seeking an abortion.  The Act also seems to ignore the well-documented fact that domestic abuse and abortion frequently go hand in hand.  There are many recorded instances of horrific abuse inflicted on a pregnant woman by jealous or angry boyfriends, outraged family members, or angered abusers in attempts to cause an abortion.  When they are reported, these episodes of violence are generally prosecuted under the relevant criminal codes, so presumably DC would follow suit.  However, the amendment makes no provision for the possibility of violent abortion “assistance” gone wrong—and arguably creates a defense for abusers to mask domestic violence in the event of an unwanted pregnancy.

Next, the Act is missing any licensing requirements or limitations on what drugs may or may not be “used for self-managed abortions.” This lack of oversight incentives the provision of cheap, untested, and dangerous drugs to desperate women seeking abortions. The Act does not require drugs to come from a pharmacy, a licensed medical practitioner, or a licensed medical establishment.  Worse, the Act does not require any relationship, medical expertise, standard of care, or concern for the care or condition the woman may be in before extending impunity to the abortion drug provider.  A woman who is harmed by a drug she consumes would have little recourse in the event of a drug-related injury because a person dispensing abortion drugs can apparently avoid scrutiny from a state licensing organization just because the person purports to offer abortifacients.  As currently written, the Act allows drug peddlers to operate free from state oversight even in the event that their potentially dangerous products harm women.

Advocates for the bill say that its passage will not disturb any contradicting drug laws, but laws are only as good as those who are tasked with enforcing them.  Just last month, Live Action released an undercover video taken at the Washington-Surgi Abortion Clinic featuring a nurse requiring a patient to ingest Xanax prior to her consultation with the abortionist despite the patient’s protestation that the drug would impact her ability to think clearly.  Although the patient filed a complaint with the DC Board of Medicine, no action has been taken to investigate that likely breach of medical ethics.

Worse, because the Act protects any product used for abortion, providing and even administering Xanax or other mind-altering drugs could be protected behavior so long as the product was plausibly used for a “self-managed abortion.”  DC’s Zone of noninterference intentionally creates a zone of state sanctioned immunity for drug providers with no regard for the consequences. 

And who is to say whether the abortion was self-managed?  While the Act’s “self-managed abortion” phrase makes some vague attempt to cabin concerns about forced abortion, the term consent is noticeably lacking in the proposed language.  Contrast that to the existing statute: in the section dealing with impunity for health care practitioners, protection specifically extends only to abortion for “a consenting individual[]” (emphasis added).   No such common sense limitation is included in the Act – even though the emotional and physical vulnerability associated with pregnancy makes women particularly susceptible to abuse.  Making abortion available in the privacy of a home allows abusers to capitalize on that vulnerability under state sanction. 

DC Scandals Involving Abortion

Multiple scandals have surfaced involving Planned Parenthood covering for sex abusers and pimps who traffic underage girls and use abortion to keep them available for clients.  These scandals have persisted despite state laws requiring health care providers to report any cases of suspected abuse.  Per the DC code, “any physician, psychologist, medical examiner . . .  registered nurse, licensed practical nurse, person involved in the care and treatment of patients, mental health professional, and human trafficking counselor” is required to report known or reasonably suspected abuse to the authorities immediately.  In 2019, the DC Department of Health Director listed “identifying and reporting abuse [and] human trafficking” as a public health priority that must make up part of the continued education requirement for continued licensure in the District.  Though the reporting requirement has evidently been routinely ignored by Planned Parenthood, cutting out the involvement of a third party altogether in favor of easy in-house abortion facilitates easy in-house abuse.

Leaving aside coerced abortion and domestic violence, what about the abortion-under-duress or the non-consensual-abortion scenarios?  Slipping a mind-altering drug into a woman’s drink and then administering an abortion pill is arguably covered activity.  Or offering a woman a drink or a drug to encourage her to consent to an abortion is also plausibly covered. Even if the woman later protests, the situation devolves into a he-said-she-said scenario.  Neither option is far-fetched: there have been reported cases of men slipping drugs designed to cause abortion into the drinks of women to end undesired pregnancies.  With this in mind, the absence of the term “consent” coupled with automatic immunity for a person administering a drug for abortion is reckless at best.

Making an abortion pill available without licensing requirements and without the involvement of a doctor creates serious medical risks for women.  Abortion pills are unsafe past a certain gestational age.  Without a doctor’s expertise to ascertain gestational age, potential contraindications with other medication, or risks like ectopic pregnancy, an abortion pill could lead to life threatening complications for the mother.  If a woman has an ectopic pregnancy, the abortion pill regimen will not cause an abortion and will leave the woman at risk for continued undiagnosed ectopic pregnancy, rupture of the Fallopian tube, and “catastrophic hemorrhage” which can lead to death.  In other cases, frequently where the woman miscalculates her gestational age, taking the abortion pill regimen can lead to incomplete abortion necessitating surgery. 

DC Council Pushing Abortion Regardless of Women’s Health or Saftey

Given all these unacknowledged risks, the DC Council’s focus is clear: to make abortion as accessible as possible regardless of the plausible dangers and health risks.  In its introduction, the bill’s sponsors decry the “undeniable stigma attached to seeking assistance” for abortion and explain that the amendment is necessary because: “[j]urisdictions across the country continue to enact legislation that not only restricts access to abortion but also punishes any individual who assists a person seeking an abortion.”  No such criticism can be levied against DC as the only limitation on abortion is a restriction on public funds to finance only some abortions.

Post-Dobbs, the DC Council’s political position has shifted, even though, as Mayor Bowser admits, Roe’s reversal left DC abortion law untouched.  To become law in the District, legislation introduced by the DC Council must pass a first and final reading and a Council vote followed by mayoral and Congressional approval.  Here, the Act has just been introduced, but it certainly has majority Council support—ten of the Council’s thirteen members are co-sponsors—and given Mayor Bowser’s statements, her signature is a foregone conclusion.  Congressional approval of the District’s abortion policy is more of an open question given the impending November elections

The post-Dobbs political climate coupled with the impending Congressional sea change explain the DC Council’s decision to cavalierly ignore health and safety in the name of expanding the abortion protection zone: it is ultimately a political power play that has nothing to do with women’s health.  No matter the electoral outcome this November, the Act demonstrates the DC Council’s political commitment to the contentious position that “access to reproductive care, even outside the healthcare system, is fundamental to a person’s dignity and autonomy”—and that such a commitment is worth exposing women to  increased, unconsidered, and unnecessary risk.