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Abortion Coverage Puts California’s Federal Funds at Risk: HHS (2)

Jan. 24, 2020, 3:32 PM; Updated: Jan. 24, 2020, 9:40 PM

California’s federal health-care funding is in jeopardy unless it stops requiring private insurance plans to cover abortions, the Trump administration warned.

The Department of Health and Human Services Office for Civil Rights announced the violation Friday as President Donald Trump prepared to speak at the March for Life rally in Washington. Trump was the first president to address the rally in person.

The OCR said California’s coverage requirement violates the Weldon amendment, which prohibits government entities from using appropriated federal funds to discriminate against health care entities that chose not to provide, cover, or pay for abortions. The amendment has been in every HHS appropriations bill since 2004.

California “has refused to respect conscience that is respected under federal law,” OCR Director Roger Severino told reporters. As a result, over 28,000 people lost their plans because they didn’t cover abortions, he said.

Other Funds at Risk

Funding for HHS is consolidated into same spending bill for the Departments of Education, Labor, and Defense, which means other funds could be at risk as well, legal scholars said.

The Weldon Amendment says none of the funds from the appropriations bill may be made available to a state that violates the amendment, which includes not only those funds provided to the state by HHS but also by the Departments of Education and Labor, former OCR chief Jocelyn Samuels said in an interview.

Samuels served as the HHS OCR director from 2014 to 2017 and is now executive director of the Williams Institute, a think tank at UCLA School of Law that conducts independent research on sexual orientation and gender identity law and public policy.

The administration’s findings Friday are a reversal of what OCR said about the state law during the Obama administration, she said.

In a 2016 letter signed by Samuels, the office threw out complaints raised by religious groups, churches, a church-run school, and the employees of a religiously affiliated university.

The office said then that Weldon amendment’s protections “extend only to health care entities and not to individuals who are patients of, or institutions or individuals that are insured by, such entities.”

Additionally, the office said none of the insurers had complained about the directive.

Change in Interpretation

The OCR on Friday, however, found the state in violation of the amendment based on complaints raised by two religious nonprofits in the state: Skyline Wesleyan Church and the Missionary Guadalupanas of the Holy Spirit Inc.

What OCR appears to be saying now is the Weldon amendment insulates anyone who doesn’t want to participate in abortion services for any reason whether it’s religiously grounded or not, Samuels said.

“It’s a much broader assessment about the reach of the Weldon amendment and extent to which it authorizes these denials of care,” she said.

The effort appears to be similar to the so-called conscience rules the Trump administration finalized last year that have since been vacated by multiple federal courts.

The rules would have allowed health-care workers to deny care based on their religious and moral beliefs. The Trump administration has appealed at least one ruling to the U.S. Court of Appeals for the Second Circuit.

‘By Any Means Necessary’

California has 30 days to signal its intent to comply or face having federal funding from HHS pulled. However, Severino said the goal is for California to comply.

California Attorney General Xavier Becerra said in a statement on Twitter that the state will “fight this by any means necessary,” and called the action “just one more attempt to chip away at women’s rights & access to abortion.”

Becerra also said the state “won’t be deterred.”

If the administration pulls all of the state’s funding that’s provided under the appropriations bill, the state may have grounds to challenge the constitutionality of the Weldon amendment, Samuels said.

Samuels said in the 2016 OCR letter that the Supreme Court ruled in the 2012 Obamacare challenge National Federation of Independent Business v. Sebelius that Congress couldn’t condition a state’s pre-existing Medicaid funding on the state’s compliance with the Affordable Care Act’s requirement to expand the program to all low-income adults.

“If loss of all Medicaid funding was sufficient to constitute coercion, surely loss of all HHS funding not to mention Department of Education funding and Department of Labor funding could be found to be so as well,” she said Friday.

Other States at Risk

Illinois, Maine, New York, Oregon, and Washington also require abortion coverage in private insurance plans and could face a similar complaint. Those states should expect the same outcome, Severino said.

The Thomas More Society filed a complaint in October against the Illinois law. Oregon Right to Life said it filed a suit against Oregon’s law Jan. 14.

The Missionary Guadalupanas of the Holy Spirit had sued California, but the state’s abortion coverage requirement was upheld by the California Court of Appeals and the California Supreme Court declined to unpublish the appeals court decision.

The OCR previously found that California violated federal conscience protection laws because it required pregnancy centers that counsel against abortion to post notices that the state provides free or low-cost family planning services and abortion. The U.S. Supreme Court decided that action violated the First Amendment and a federal district court blocked enforcement of the state law.

(Updated with additional reaction and context throughout.)

To contact the reporters on this story: Shira Stein in Washington at sstein@bloomberglaw.com; Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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