On January 24th, the U.S. Department of Health and Human Services’ Office for Civil Rights Division (OCR) issued a notice of violation to the State of California for its abortion coverage mandate, threatening the State with cutting its funding in 30 days if it does not change course. HHS specifically cited a violation to the Weldon Amendment, a federal appropriations rider that since 2005 has intended to restrict access to abortion care.
Since the 1970s, California has required abortion coverage in state-based health plans. According to the Knox-Keene Act, state plans must cover “all basic health services,” which includes physician services, inpatient hospital services and ambulatory care services, outpatient hospital services, and family planning services. California law also guarantees the right to abortion access and coverage. California’s Supreme Court has declared that abortion and pregnancy care should be treated equally. California’s Department of Managed Health Care (DHMC) is in charge of enforcing the Knox-Keene Act and other plan regulations; it regulates health plans, not employers.
The Weldon Amendment
The Weldon Amendment provides that, [“n]one of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” (emphasis added). Under the Weldon Amendment, a health care entity includes, “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”
In other words, the Weldon Amendment is only violated if a health care provider or a health issuer objects to abortion and is discriminated against for its objection.
California State Constitution prohibits discrimination against women who choose abortion
The issue at hand begins with a letter that DHMC sent to seven California issuers in 2014 reminding them of their obligation to offer abortion in all of their plans on the basis that California law requires plans to offer basic health services and that the State Constitution prohibits discrimination against women who choose to terminate their pregnancy. These issuers were found to exclude abortion coverage in some of their plans.
DMHC further directed the health plans to amend their plan documents. These issuers were not treated differently from other issuers; in fact, none of these issuers expressed that they were discriminated or that they objected to offering abortion coverage. DMHC noted that although health issuers are generally required to provide coverage of abortion, no religiously affiliated issuer would be required to provide coverage for a service to which it religiously or morally objects. Lastly, DMHC never took punitive action against any covered entity for failure to provide abortion coverage.
OCR found no violation of the Weldon Amendment
Following the issuance of the DHMC letter, OCR received three complaints filed on behalf of a religious organization, churches and a church-run school, and employees of a religiously affiliated university. In 2016, OCR found no violation of the Weldon Amendment since it only protects health care entities and none had raised any objections or were discriminated. OCR explained that none of the complainants met the definition of “health entity” under the Weldon Amendment. In addition, OCR recognized that DMHC had permitted an issuer to offer a limited-scope plan to a religiously-affiliated employer that had religious objections to covering abortion.
California Court of Appeals upheld the constitutionality of California’s abortion coverage
Last year, the California Court of Appeals upheld the constitutionality of California’s abortion coverage mandate in a case challenged by a Catholic Mission, the Missionary Guadalupanas of the Holy Spirit. The Court confirmed that abortion is basic health care. It established, “Because California law guarantees every woman the right to choose whether to bear a child or obtain an abortion, the only legally tenable interpretation of the law is that abortions are basic health care services, which health care service plans are required to cover.”
OCR found that California’s “violation [of the Weldon Amendment] is ongoing, and implicates funding that HHS made available
According to OCR’s 2020 notice of violation, it received a complaint from two religious organizations: one from the same Missionary Guadalupanas of the Holy Spirit that had lost its case before the California Court of Appeals, and the Skyline Wesleyan Church. OCR found that California’s “violation [of the Weldon Amendment] is ongoing, and implicates funding that HHS made available to it from the 2018, 2019, and 2020 Appropriations Acts applicable to the Department of Health and Human Services.”
Impacts of this decision could be devastating to the health care of millions of Californians
While California values and protects the rights of its people, the Trump Administration continues to undermine their fundamental rights. California is being threatened with the loss of critical funds that provide health care to women, children, people with disabilities, seniors, among others, just because our State is living up to its responsibility to take care of its people. The impacts of this decision could be devastating for the millions of Californians whose health and livelihood depend on the support of public funds.