"Don’t like abortion? Don’t have one." So read the pro-abortion bumper sticker of bygone days. There’s now an addendum: "But pay for mine."
While the public debate over the last five years has been focused on how to stop taxpayer dollars from paying for abortions, a different threat to conscience has been taking shape, largely unnoticed. Employers and individuals in some states are finding that their options for purchasing private health insurance that doesn’t cover abortion are shrinking.
In California, that option just disappeared. On August 22, the California Department of Managed Health Care sent letters to all of California’s health insurance companies informing them that, effective immediately, fully-insured plans would no longer be allowed to limit coverage to "medically necessary" abortions, much less exclude abortion coverage altogether. All plans must cover all abortions, including purely elective and voluntary abortions.
The state agency grounded its diktat in two bizarre interpretations of California law. First, DMHC said that the 1975 state statute that governs insurance mandates requires coverage of all "basic health care services," and that since abortion, even elective abortion, is a "basic health care service," it must be covered.
This interpretation of the 39-year-old law would undoubtedly astound the legislators who passed it. In fact, just 14 years ago, when a much more liberal California legislature enacted a contraceptive coverage mandate, it granted a religious exemption (albeit a narrow one) for churches. Thus, the DMHC’s position is that the Legislature in 2000 granted an exemption to churches from having to provide contraceptives, but the Legislature in 1975 intended to force every employer, including churches, to cover surgical abortions. That’s a stretch.
DMHC’s second interpretation is even more elastic, and the implications far scarier. DMHC states that the California Constitution prohibits "discrimination" against women in the form of paying for maternity services but not abortion. This assertion is apparently based on a 1980 California Supreme Court decision that struck down a law prohibiting the use of public funds to pay for abortions through the state’s medical assistance program. The Court held that paying for childbirth but not abortion violated the equal protection rights of those "similarly situated" women who decided to have abortions rather than give birth.
One of the key elements of that decision was that the government was the entity disbursing and withholding funds, and thus it was the government that was violating equal protection rights. By relying on that case in the context of private insurance, the DMHC is signaling an expansive reading of the decision, according to which, if the state cannot "discriminate" between abortion and childbirth, neither can a private entity. If the state must pay for abortion and childbirth equally, so must private entities. If a public hospital cannot allow childbirth but prohibit abortion, neither can a private hospital, even a Catholic hospital.
The DMHC’s letter to insurance companies anticipates but disavows any such conclusion. But it is hard to see such disavowal as anything but a strategic decision to wait for a more opportune moment to let the other shoe(s) drop, particularly as the state already attempted, some years ago, to force Catholic hospitals to provide "emergency" abortions.
The DMHC, however, does not have the last word on the issue of mandated abortion coverage. Ironically, help may come from the very federal agency that has spent the past five years trampling on the religious freedom of churches, religious institutions, and religious for-profit employers: the federal Department of Health and Human Services.
Every year the DHHS doles out billions of federal tax dollars to states for various health and education programs. But this money comes with conditions, and one of the conditions, known as the Weldon Amendment, prohibits recipients of these funds from discriminating against individuals, entities, insurers, or health insurance plans that do not provide or pay for abortion.
The Office of Civil Rights within the DHHS is tasked with ensuring that the Weldon Amendment and other federal conscience laws are followed. To date, three separate complaints have been filed with the Office of Civil Rights concerning California’s blatant violation of the Weldon Amendment. The complainants range from employees of a Catholic university forced to change its plan to cover abortion, to seven Christian churches who found their plans unilaterally changed to cover abortion, to the California Catholic Conference on behalf of its members.
In 2011, the DHHS reaffirmed its commitment to enforcing federal conscience laws, stating that when it becomes aware of activities by a state or local government that may violate these conscience protections, it will first “work with such government . . . to assist such government to comply or come into compliance” with federal law. Failing that, the Department “will consider all legal options including termination of funding [and] return of funds paid out in violation” of these laws.
California’s violation of federal law is clear. Equally clear is the Department of Health and Human Services’ mandate to enforce that law. What remains to be seen is whether the Administration will follow through on President Obama’s personal pledge to “honor the conscience of those who disagree with abortion.”
Catherine Shortis a graduate of Thomas Aquinas College and received her law degree from Boalt Hall, U.C. Berkeley. For over three decades she has provided legal defense for the rights of pro-life organizations and individuals. In 1989, Ms. Short helped establish the Life Legal Defense Foundation, which she now serves as Legal Director. She is a wife and mother of nine children.
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