WASHINGTON — On Jan. 24, the same day that President Donald Trump spoke at the March for Life, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR), formally notified California that the state cannot force insurers to include elective abortion in every health-insurance policy.
Since 2014, the California Department of Managed Healthcare (DMHC) has asserted that California law requires that all health-insurance plans cover abortion. The OCR gave the state of California 30 days to respond with “sufficient assurance that California will cease requiring all health-care plans, as a class, to cover abortion, or that it is willing to negotiate in good faith towards that end.”
“Now that the feds at HHS recognize that there was a Weldon violation and recognize that the penalties of Weldon could come into play, I’m hoping that the state enters into a substantive and quality conversation so that we can eliminate these conscience-clause problems as they crop up here in California and in the state law,” Kevin Eckery, spokesman for the California Catholic Conference, told the Register.
For more than 15 years, Congress has included the Weldon Amendment in the annual Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act. The Weldon Amendment prohibits a state or local government from receiving any federal funds appropriated by the act if it discriminates against health-care entities that do not assist with abortions.
The Weldon Amendment states, “None of the funds made available in this act may be made available to a … state or local government, if such … 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.”
In response to the HHS notification of violation, California Gov. Gavin Newsom announced via Twitter: “Trump is threatening to take away ALL OF OUR HEALTHCARE FUNDING. TENS OF BILLIONS of dollars.”
Newsom claimed that the poor, sick, young and elderly would lose their health care and said that Trump “sicken[ed]” him.
House Minority Leader Kevin McCarthy, R-Calif., who repeatedly met with OCR officials about California’s violations of the Weldon Amendment, also issued a statement. “California’s abortion mandate not only devalues life, but cruelly compels many Californians to support abortion against their will. In order to respect citizens’ rights and not jeopardize a vital stream of critical federal funds that assist Californians, I urge Governor Newsom to reconsider his support for this unlawful policy.”
Speaking during the Jan. 25 Walk for Life West Coast in San Francisco, Father Frank Pavone, national director of Priests for Life, praised the OCR’s action.
“The president’s team is very, very committed to enforcing the existing laws and making sure that they are actually put into practice,” Father Pavone said. “When they find out that there’s been a violation, they will take action to make sure the law is complied with. It’s a human-rights violation when people are not free to follow what they believe is right in this area.”
Catholic Institutions Impacted
In 2013, before the DMHC issued its abortion mandate, Loyola Marymount University and Santa Clara University changed their employee health-care insurance plans in order to exclude elective abortion coverage. This sparked the ire of the abortion industry.
The HHS notice of violation describes the ensuing “pressure campaign”: “Abortion providers and advocacy groups, including Planned Parenthood, learned of this development and pressured DMHC to not only reverse its decision to allow the coverage changes, but also to make elective abortion coverage mandatory for all health-care plans falling under DMHC’s jurisdiction.”
The DMHC acceded to Planned Parenthood’s demands, issuing letters to the seven California health insurance providers asserting that, according to California law, every insurance plan must include abortion without any limitations.
James Hanink, a professor at Loyola Marymount at that time, led the opposition to abortion insurance coverage. “LMU had an ‘on-again-off-again’ policy of using insurance plans that covered abortion,” Hanink told the Register. “During the time that a small number of us were opposing any use of such plans, the California mandate took effect. LMU could have switched to a private insurance plan, following the example of Thomas Aquinas College or Biola. But LMU caved in quickly, as has been its custom, e.g., in covering contraception.”
Said Hanink, “Our response was to join in a civil-rights complaint against the state of California. We were not successful.”
Under the Obama administration, the OCR found no violations.
“Under President Barack Obama, the Office for Civil Rights absolutely refused to enforce the law when California issued the abortion mandate,” Rep. Chris Smith, R-N.J., co-chair of the Bipartisan Congressional Pro-Life Caucus, noted in a Jan. 24 statement. “By announcing enforcement action this week, the Trump administration is defending the many employers and citizens in California who have been prevented for more than five years from purchasing a private health plan that doesn’t fund abortion on demand.”
California’s Pro-Abortion Agenda
The office of California’s Attorney General Xavier Becerra issued a response to the notification letter from what he called the “Trump Administration’s Office for Religious Consciousness,” indicating California would defy the OCR.
“Women’s health should never be dangled as bait for the sake of political grandstanding,” it said. “Today, Donald Trump is using the official levers of government to advance his political agenda. … In California, we will continue to protect our families’ access to health care, including women’s constitutional right to abortion. Nothing changes.”
Since taking over from Kamala Harris as attorney general in 2017, Becerra has consistently used his office to promote a pro-abortion agenda. His website lists dozens of amicus briefs he has filed as attorney general to attack pro-life laws in other states, as well as lawsuits challenging President Trump’s actions to promote life and protect conscience rights in California and elsewhere.
In 2019, the OCR found that California’s A.B. 775 violated the Weldon Amendment by requiring pro-life pregnancy-care centers to refer for abortions. Becerra had already agreed to a permanent injunction at the district-court level, and no further action was taken by the OCR.
In addition to California, five other states appear to be similarly violating the Weldon Amendment with abortion insurance mandates. Maine and Washington require insurance plans that cover prenatal care to also cover abortion. Illinois, New York and Oregon mandate that all health insurance plans must cover abortion.
Register correspondent Mary Rose Short writes from California.