The Associated Press reported Wednesday that the U.S. Department of Health and Human Services (HHS) has decided to uphold the California Department of Managed Health Care’s 2014 mandate that health care providers must include elective abortion coverage in all their plans. Previously, several health insurance companies in California had provided plans exempting these services for customers with religious objections, including churches and religiously-affiliated schools.
The statement released by the Office of Civil Rights (OCR) under the HHS rejected complaints that the California ruling violated the Weldon Amendment, which protects health care providers from being compelled to provide abortions. The amendment refuses to fund government programs that discriminate “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” The definition of health care entity includes those directly providing the services, such as doctors, hospitals, and insurers. In response to the challenge, the OCR has determined that only the religious objections of those entities must be respected, not religious objections of their customers. The OCR statement points out that none of the health care providers had religious objections, so California can legally compel them to provide abortion services in their insurance plans.
However, in the text of the amendment, it does not specify proper motivations behind the refusal to provide abortions, only that such a refusal may not be grounds for discrimination. The amendment also specifically includes “health care plan” in the list of entities. California’s order that all plans include abortion services unless the provider specifically has a religious objection seems to directly defy the Weldon Amendment. Unfortunately, the HHS under the Obama Administration has reinterpreted the amendment in a very narrow way. Casey Maddox, a Senior Counsel lawyer for Alliance Defending Freedom, who originally brought the suit against the mandate on behalf of several religious institutions, has even accused the administration of “inventing new interpretations out of whole cloth.”
The practical effect is that religious and religiously-affiliated institutions, including churches, will be compelled to provide elective abortion coverage in their health care plans. This is a clear and blatant violation of the rights of conscience of religious peoples and institutions.
Not only does the mandate burden religious freedom, it is also unnecessary. The government has demonstrated that there are feasible ways to provide access to contraception and abortion services without involving the employer at all. This is no better exemplified than in the protracted legal battle between several religious institutions and the HHS in the case Zubik v. Burwell. The case centered on religious objections to a procedure under the HHS mandate that allowed religious institutions to pass providing contraception on to the federal government only if they signed a document. Religious institutions claimed that signing the document involved them in the process of providing coverage for abortion and contraception, which they could not do in good conscience. When the case made it to the Supreme Court, the Court decided to send the case back to circuit courts for reconsideration, unconvinced that the government was achieving their ends of providing universal abortion and contraception coverage in the way that least involved the employer. President Obama himself, while legal injunctions allowed the religious employers to delay complying with the mandate, claimed in an interview with Buzzfeed News that the government was having no problem providing women with these services, in total absence of employer involvement.
Considering that it is conceivably illegal for California to force all plans to include abortion and contraceptive services under current laws and that it is unnecessary for achieving the end of providing such services to all women, California should consider retracting its mandate. It is imperative to respect the religious convictions of others and to protect their rights of conscience, and both California and the Obama administration have failed to do so.
