The pro-life law that was killed in California

Sacramento, Calif., Jul 8, 2016 / 14:12 pm

Churches and other organizations in California will be forced to buy insurance plans that cover abortions due to the Obama administration's clear misinterpretation of a pro-life law, said prominent pro-life thinker Richard Doerflinger.

Doerflinger is a public policy fellow at the University of Notre Dame's Center for Ethics and Culture. He served for 36 years as head of the Secretariat of Pro-Life Activities for the U.S. bishops' conference.

In a July 6 essay for Public Discourse, Doerflinger discussed what he sees as serious threats to the Weldon Amendment.

First passed in 2005, the amendment bars federal funds to state or local governments if they discriminate against institutional or individual healthcare entities that decline to pay for, cover, or refer for abortions. The amendment's definition of healthcare entities includes "a health insurance plan, or any other kind of health care facility, organization or plan."

In his essay, Doerflinger argued that the Obama administration "effectively overturned" the pro-life law when it failed to act against a California rule that required abortion coverage in churches' health insurance policies – a rule that he said "egregiously violates" the Weldon Amendment.

"California's mandatory abortion coverage policy is an open-and-shut case, a paradigm of the kind of abuse Weldon was directed against," he wrote. "Yet through a mangled interpretation of the statute – one that ignores its plain text and inserts qualifiers and exceptions nowhere found in that text – the administration manages to neutralize the statute."

In August 2014, California's Department of Managed Health Care ruled that abortion coverage is mandatory in California health plans. The ruling drew several legal complaints from the Alliance Defending Freedom, the Life Legal Defense Foundation and the Catholic Bishops of California.

They complained to the U.S. Department of Health and Human Services' Office of Human Rights that the rule violated the Weldon Amendment.

Jocelyn Samuels, director of the Office for Civil Rights of the U.S. Department of Health and Human Services, rejected the complaints in a June 22 letter. She said the complaining entities were not "health care entities" opposed to abortion and said that the seven health insurance firms involved themselves have no objections to providing abortion coverage.

The Weldon Amendment has repeatedly been enacted without change by Congress when either major party has been in control. Doerflinger said the administration's move contradicted President Barack Obama's stated support for the amendment and his signing of the law every year since 2009.

"He and his administration have repeatedly assured Congress and pro-life Americans that they support the law and would fully enforce it through HHS's Office for Civil Rights," he said. "Those assurances have now proven empty."

Doerflinger reviewed what he said were the administration's distortions of the law. He charged that the administration "mangles the text" of a remark from amendment sponsor Rep. Dave Weldon (R-Florida). The congressman backed protection for all health care providers, not only those with moral or religious objections.

Legally speaking, to decline to support abortion doesn't require moral or religious grounds, he said. Further, protections for abortion objectors must be broad by their nature.

Non-religious health insurance companies should have the freedom to sell health plans that exclude controversial coverage, so that those with moral concerns have the option of purchasing a plan that meets the needs of their conscience, Doerflinger said.

"If, like the administration, you insist on protecting only those with an explicit moral or religious motivation, you may not effectively protect them either. They can object to plans covering abortions, but no one will be allowed to offer them anything else."

He emphasized that the Weldon amendment bars discrimination against a health plan that excludes abortion. The state policy forcing insurance companies to sell only health plans that include abortion is "the most obvious form of discrimination possible" against such plans.

Doerflinger recounted the Weldon Amendment's basis in an earlier law, the 1996 Coats-Snow Amendment barring government discrimination against medical residents and residency programs that decline to train in abortion procedures. That amendment was intended to protect these programs regardless of whether they refused to train on religious, moral or practical grounds.

The Obama administration's newly restrictive interpretation may have a "frightening consequence," Doerflinger warned. It may start coercing residency programs that have no religious affiliation to begin requiring training in abortion.

For Doerflinger, the president's professed support for conscience laws means he should sign the Conscience Protection Act, proposed legislation that would address "the alleged ambiguities and loopholes the administration claims to find in the Weldon amendment."

"If the president supports federal conscience laws on abortion and wants them to be enforceable, as he has claimed, he need only say he would sign the Conscience Protection Act into law," the pro-life leader wrote.