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How Basic Became Complicated: California and Abortion

Just two years after the U.S. Supreme Court recognized the legal right to abortion in Roe v. Wade, California passed a law to improve its managed care health services.  That law — the Knox-Keene Health Plan Services Act of 1975 — requires health insurers to include abortion services as part of basic health coverage.  In fact, the law requires all plans to treat maternity services and legal abortion services equally.  In 2014, the California Department of Managed Health Care (DMHC), the state agency that regulates health care service plans, sent a letter to some state health insurance carriers reminding them that they must offer plans complying with the state law and cover all basic health services, including abortion services.

The health insurance carriers complied and some even voluntarily amended plans to eliminate any exclusions of abortion services.

This is When Things Became Complicated . . .

Several anti-abortion groups, including schools, a few churches and even the California Catholic Conference, filed complaints with OCR claiming that California discriminated against them and violated their religious and moral objections when it issued the letter to health insurance carriers.  They based their claims on a provision — the  Weldon Amendment — included in an annual federal funding bill that prohibits governmental use of funds to the Departments of Labor, Health and Human Services, and Education to be used to discriminate against any institutional or health care entity that does not provide, pay for, provide coverage of, or refer for abortions.

But, what’s interesting is that the complainants — including the churches, schools, and the California Catholic Conference — are not considered institutional or health care entities that are covered by the Weldon Amendment.  The Weldon Amendment applies to institutional or health care entities, which includes: individual physicians, other health professionals, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any kind of health care facility, organization, or plan.  In fact, the actual health care entities — the health insurance carriers that received the letter — did not raise any religious or moral objections to the requirement.


Confusing right?

This is why OCR’s investigation concluded with a finding of “no discrimination.” Additionally, OCR found that California did not act in a discriminatory manner by enforcing its state law.  Weldon is not intended to apply directly to state laws or regulations.  In fact, “discriminatory” action can only be taken against a covered institutional or health care entity.  Again, the insurers here did not raise any objections to the California law or the letter enforcing the law.

We Simply Must Repeal the Weldon Amendment

Since its passage in 2004, the Weldon Amendment has negatively impacted women’s access to abortion services by allowing health entities to refuse to play a role in providing abortion services and preventing lawmakers from passing proactive legislation protecting access to abortion services.

The penalty for a violation of the Weldon amendment is loss of certain federal funds, including funding for critical programs like health research, employment and training, and early childhood education.  Therefore, Weldon jeopardizes valuable federal funds while serving no articulable purpose other than to undermine women’s legally recognized right to abortion services.

Let’s Keep Things Basic

The U.S. Supreme Court had it right in Roe v. Wade nearly 45 years ago and California had it right when it enacted the Knox-Keene Health Plan Services Act.  In the last four decades or so, things have become unnecessarily complicated.  Efforts to undermine and limit women’s access to legal abortion services have skewed the public narrative about abortion as a part of basic health care services for women.  Women should be allowed to make their own health decisions in consultation with their trusted health providers and family, without interference from policymakers seeking to score political points or anti-choice groups hoping to impose religious or moral judgments on those choices.  Repealing the Weldon Amendment is the simple solution to what has become an unduly complicated narrative about what should constitute women’s health care services. Abortion services are part of women’s health services — it’s that basic.

It's time for change, and we must act now. Time's up.