WASHINGTON — State by state, abortion mandates on health-care providers are coming, now that federal officials have refused to apply a federal law that harshly penalizes state and local governments for violating the conscience rights of health-care entities.

California blazed the path in August 2014, when officials reinterpreted existing state law and constitution to require all health-care plans to cover elective abortion.

What Catholic leaders and religious-liberty advocates expected to block California’s path was the Weldon Amendment, a federal law that threatened states with the loss of federal funds if they discriminate against institutional or individual health-care entities that decline to pay for, provide coverage of, or refer for abortions. The amendment defines health-care entities as individual physicians or health-care professionals, a hospital, “a health-insurance plan or any other kind of health-care facility, organization or plan.”

For California, more than $40 billion in federal funding was at stake.

However, the Office of Civil Rights at the U.S. Department of Health and Human Services has given California and New York the green light to proceed with their abortion mandates, after declining to apply the Weldon Amendment against California.

According to Casey Mattox, senior counsel with the public interest firm Alliance Defending Freedom, this is a significant change in policy from more than a decade ago, when the Bush administration successfully defended the Weldon Amendment after the state of California challenged it. Mattox added that the threatened loss of funding over conscience violations on abortion is real: HHS investigated Weldon Amendment complaints over the years and claimed the jurisdiction to enforce the law in its own internal documents. Two successful enforcement actions cited by HHS’s own documents include Vanderbilt University and Mount Sinai Hospital, both of which took corrective action to avoid losing their funding.

Lawmakers in Washington state passed an abortion mandate on insurers in the state house in 2013, but that bill stalled in the state senate amid concerns that enacting such a law could put the state’s federal funding at risk.

 

‘Exported Beyond California’

The Obama administration’s decision to not apply Weldon against California may have changed that calculus. In New York, state officials may be resting a little easier. The state’s Department of Financial Services made abortion coverage part of employers’ health plans — including religious employers — effective Jan. 1, 2016. The agency actually slipped in a second mandate — discovered only in the course of litigation — that redefined abortion in health-insurance contracts as “medically necessary surgery.”

Similarly for the state of Washington, a state judge ruled June 21 that hospitals that provide maternity care must also provide abortions on site.

“Abortion advocates are intending to try to see this exported beyond California,” Mattox said. “We’re already seeing an effort under way to do this in New York state, and I expect to see other states dealing with these kinds of mandates going forward.”  

The Diocese of Albany is leading an ecumenical coalition of Catholic entities united with Lutheran, Episcopal, evangelical and nonreligious organizations in a lawsuit challenging the constitutionality of the two mandates, which it says effectively force religious employers and others to pay for abortions in their employee health plans regardless of conscience or religious belief.

Mary DeTurris Poust, spokeswoman for the Albany Diocese, told the Register on July 1 that the New York state financial agency’s decision to impose an abortion requirement on health insurers was “incredible — and more than a little frightening,” since it was performed “without any legislative or regulatory process.”

“This is not a Catholic issue,” Poust said. “This is an issue for anyone who values religious liberty, religious freedom and constitutional protections because, whether you agree with us on abortion or not, if a state agency can do this to the Church, it can do it to anyone.”

The administrative route to imposing abortion mandates taken by California and New York has a clear advantage over the legislative path: This way lets elected officials off the hook regarding casting an unpopular vote. If more states sense the Weldon Amendment has lost its teeth, then pro-life advocates may be revisiting battles they thought were already won.

In Connecticut, for example, pro-life advocates successfully won a lawsuit that forced the state to provide an abortion-free insurance plan on the state health exchange. Now, that victory seems less definite.

“The question is whether Connecticut will continue to honor that agreement now that HHS refuses to enforce the Weldon Amendment,” Peter Wolfgang, executive director of the Family Institute of Connecticut, told the Register.

 

Legal Landscape

Alliance has filed two separate complaints in California on behalf of a number of Christian churches, arguing that California’s abortion mandates violate state law and the First Amendment.

However, constitutional scholars say the Catholic Church and Christian churches that seek to defend their religious liberty over abortion have a serious disadvantage. Unlike other fundamental rights protected under the U.S. Constitution, religious freedom does not have the same protections, thanks to a decision authored by the late Antonin Scalia.

Vincent Bonventre, the Justice Robert H. Jackson Distinguished Professor of Law at Albany Law School, who has worked pro bono on the Church’s religious-liberty fights in New York against contraception and abortion insurance mandates, told the Register that the First Amendment offers virtually no guarantee of protection anymore for religious freedom, because the “strict-scrutiny test” was removed in the 1990 U.S. Supreme Court’s 6-3 decision Employment Division v. Smith.

Bonventre explained the government had to demonstrate two things with the strict-scrutiny test: that it had “a compelling interest” (a very strong reason for infringing on those rights), and it also had “no alternative means” accomplishing that objective without restricting those fundamental rights even more.

The case in Smith involved American Indians in Oregon who had ingested peyote, a hallucinogenic drug, for sacramental purposes as part of their religious ceremonies. Writing the decision for the majority, Justice Scalia ruled the Free Exercise of Religion Clause “does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.”

 

State-Level Battles

The U.S. Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to reinstate the strict-scrutiny test. But that only applies to the federal government, not to states. Only 21 states have their own RFRAs, according to the National Conference of State Legislatures.

“What you have to do in the state is rely on the state constitution or the state law,” Bonventre said. For this reason, the RFRA, not the Free Exercise Clause, is the legal ground that the Little Sisters of the Poor and Hobby Lobby have had to use to argue against the federal government’s contraceptive mandate.

“They would have lost under the First Amendment,” Bonventre said. That is also why, Bonventre explained, Christian pharmacists in Washington state could not persuade the high court to take up their religious-liberty case objecting to being forced to sell abortifacient drugs.

Douglas Laycock, Robert E. Scott Distinguished Professor of Law at the University of Virginia, told the Register that the Church needs legislation to fight off abortion mandates at the state level on religious-liberty grounds “squarely because of Smith.”

He pointed out that lower courts would likely recognize the abortion mandates as justified following the constitutional reasoning of Smith — particularly in the 9th Circuit Court, which includes California — because they do not single out religious groups, but are written as “neutral and generally applicable law, ” just as the laws banning peyote did not single out American Indians.

However, Laycock said that even without the Smith decision, “the Church would still be in a difficult situation politically,” because recourse to the strict-scrutiny clause does not offer much protection if a judge is hostile to a given religious-liberty claim. “But [the Church] would at least have had a basis for serious argument in states, where it now has hardly any argument at all.”

 

Conscience Protection Act

The Obama administration’s decision on the Weldon Amendment has added an even stronger note of urgency to the U.S. bishops’ call for Congress to implement the Conscience Protection Act. The House of Representatives voted to pass the bill, 245-182, on July 13.

In a July 7 statement, Cardinal Timothy Dolan of New York and Archbishop William Lori of Baltimore, respectively the chairman of the bishops’ pro-life and religious-liberty committees, cited the recent HHS decision about California, the situation in New York and the Supreme Court’s inaction on the Washington state pharmacy case as three prominent examples of why the federal legislation is urgently needed. These “disturbing new actions to force health-care providers to participate in the destruction of human life cry out for an immediate federal remedy,” Cardinal Dolan and Archbishop Lori said.

Greg Schleppenbach, associate director for the bishops’ Secretariat of Pro-Life Activities, told the Register the bill would put permanently into statute existing conscience protections, including the Weldon Amendment, which have to be renewed each year. More importantly, it would give private citizens or entities the right to sue federal, state and local governments in federal court for violating the law.

Right now, enforcing those conscience protections “depends entirely upon the Department of Health and Human Services and the Office of Civil Rights,” Schleppenbach said, adding that the administration’s decision not to apply the Weldon Amendment shows that arrangement has not worked well.

“This is commonsense legislation that [states] nobody should be forced to participate in any way in an abortion: either providing one, paying for one or covering one in the health plan,” Schleppenbach added.

“It is unbelievable that there would be opposition to basic conscience protection for anyone.”

Schleppenbach said the U.S. bishops’ conference has sent out an action alert on the Conscience Protection Act and is hopeful that the Senate will take up the bill.

But the Senate may be as far as the bill travels in 2016.

Tuesday night, the White House gave notice that the President would likely veto the bill if it landed on his desk.  

Note: this story has been updated to add the White House's newly issued veto threat. It also corrects the original version in that a floor vote by the House of Representatives, not a committee vote, was taking place Wednesday. It was updated again to reflect the results of that vote.

Peter Jesserer Smith is a Register staff reporter.