California Banks on Obama Administration Not Enforcing Abortion Conscience Law

Last week in Sacramento, California, legislators and abortion advocates finally explained how they square the state’s new abortion insurance mandate with a federal law prohibiting it. They believe they can count on the Obama administration not to enforce the law.

On Aug. 22, 2014, the California Department of Managed Health Care issued an order requiring every health insurance plan licensed in California to cover all legal abortions. The consequence of this order was that even churches in California were immediately forced to cover elective abortions in their insurance plans for their employees.

California’s discrimination against health insurance plans that don’t include coverage for elective abortions has been prohibited by the federal Weldon Amendment for a decade. The law prohibits states receiving funds under the Labor, Health & Human Services and Education Appropriations Act from discriminating against health insurance plans that don’t cover abortion. DMHC has banned such plans from California. That certainly seems like “discrimination.”

With California receiving tens of billions of federal taxpayer dollars subject to the Weldon Amendment, one would expect DMHC to offer some novel explanation of how this state abortion mandate doesn’t really violate the law; yet, the DMHC ignored the law entirely in its order. In response to pleas from pro-life Californians whose health insurance plans were forced to cover elective abortions because of this mandate, the DMHC would only say they “considered” the Weldon Amendment when it reinterpreted a 40-year old state law (and the state constitution) to deem elective abortions a “basic health service” that must be covered by every insurance plan in the state, even for churches.

California Assembly member Shannon Grove introduced a bill that would simply have restored the status quo and brought California back into compliance with its obligations under federal law. Assembly Bill 1254 would have allowed churches and other pro-life employers in California to again contract for health insurance plans that did not require them to pay for abortion coverage. As California already recognizes, as it must, the right of some religious employers to be free from paying for contraceptive coverage, this should be a no brainer—especially since federal law prohibits discrimination against health plans that exclude abortion coverage. Nonetheless, the Assembly’s Committee on Health rejected the bill.

I testified at an April 28 hearing in support of the bill along with Pastor Jack Hibbs of Calvary Chapel Chino Hills, one of the churches forced to cover abortions by this illegal mandate. I hoped to finally hear some explanation of how the California law did not violate the Weldon Amendment. Instead, the Democratic majority’s analysis of the bill didn’t even mention the federal law with which the bill was meant to bring California into compliance. A representative from Planned Parenthood of California and a constitutional law professor from Santa Clara University testified in opposition to AB1254, but neither offered any explanation as to how the California mandate they supported did not violate federal law.

But when I pointed out that neither the committee nor those testifying in favor of the abortion mandate were attempting to square it with the Weldon Amendment, Beth Parker, a Planned Parenthood  attorney, had no real answer except to rely on the Obama administration to ignore this blatant violation of federal law: “Only the federal government can enforce the Weldon Amendment, and it has never been enforced by either Republican or Democratic Administrations.” (25:15-25:23).

First, she’s wrong about HHS’s historical enforcement of conscience laws. After an ADF complaint, HHS investigated Mt. Sinai’s Hospital’s policies that forced a nurse to participate in a late-term abortion, resulting in policy revisions to protect conscience rights. And after another ADF complaint to HHS, Vanderbilt University abandoned an abortion participation pledge required of applicants. HHS acknowledges its responsibility to enforce federal conscience laws, including the Weldon Amendment.

But second, it should be offensive to both Congress and the Obama administration that California would so brazenly defy federal law, knowingly violating its promise not to discriminate against health plans that do not cover abortions as one of the conditions of receiving taxpayer dollars from the federal government. When one thinks of nullification and states resisting federal law, one typically thinks of the Civil War or the Jim Crow South. But the new nullifiers, refusing to comply with federal law (while taking the federal taxpayers’ money) are states like California and Illinois that are ignoring federal law to impose their pro-abortion (and anti-conscience) ideology.

Unfortunately, the slowness of the HHS Office of Civil Rights to intervene here may be contributing to the view that California is free to ignore federal law without consequences. DMHC issued its order on Aug. 22. After immediately writing to DMHC, ADF and our friends at Life Legal Defense Foundation filed two complaints with the HHS Office of Civil Rights on behalf of individuals and churches within weeks. HHS only began an investigation in December. Now, nearly nine months later, HHS has still not enforced the Weldon Amendment against California. Some members of Congress have taken note of both California’s blatant violation of federal law and the administration’s slow enforcement of that law, demanding action from Secretary Burwell.

What California’s dismissive attitude toward federal conscience laws proves is that we need protections that aren’t dependent upon the administration’s willingness to enforce them. The Abortion Nondiscrimination Act would allow private individuals (and in this case churches) whose federal conscience rights have been violated to seek redress in court. California’s refusal to comply with federal law and the Obama administration’s slow enforcement of that law is making an excellent case that the time has come to take enforcement of these important laws out of the hands of bureaucrats. We need ANDA.

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