The State of California has required that all insurance plans operating in its borders include coverage for abortion since August 22, 2014.[1] On January, 24, 2020, the U.S. Department of Health and Human Services (HHS) issued a warning to California that this requirement was in violation of the Weldon Amendment.[2] This warning came after HHS received complaints from the Missionary Guadalupanas of the Holy Spirit and a Wesleyan church.[3] These groups are pro-life, and were unable to have insurance that did not pay for abortion per the California abortion mandate.[4]

The Weldon Amendment is a federal law that is part of an appropriations act. Basically, states who receive funds under the appropriations act need to adhere to the Weldon Amendment. The amendment states:

“None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or 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.”[5]

California, a state, has discriminated against insurance plans, which are healthcare entities, on the basis that they do not provide coverage for abortion. Thus, California has clearly violated the Weldon Amendment. HHS gave California 30 days to come into compliance with the law or risk forfeiture of the federal funds it receives from the Weldon Amendment’s appropriations act.[6] California chose not to comply, and now has risked those funds.[7] 

California could have avoided this problem altogether by not violating federal law and mandating that every insurance plan cover abortion[8] (and also that every individual in California have insurance[9]). To state it more clearly, California forces every citizen in its borders to have insurance, and for that insurance to pay for abortion. There are no exceptions.

HHS is not asking California to outlaw abortion or prevent insurance plans from covering it—only that the state removes the onerous and discriminatory abortion mandate that violates federal law. To be clear, abortion would still be easily accessible in California if the state followed the law and allowed pro-lifers to purchase pro-life insurance.[10] This is all HHS is seeking.

However, California has remained steadfastly defiant:

“The Trump Administration’s threats not only put women’s health on the line, but illegally threaten crucial public health funding that Californians rely on.”[11] 

California Attorney General, Xavier Becerra

After the initial warning was issued, California Governor Gavin Newsom stated,

“California will continue to protect a woman’s right to choose, and we won’t back down from defending reproductive freedom for everybody—full stop.”[12]

California Governor, Gavin Newsom

While we don’t know how this situation will turn out, there are a few key points to remember:

  1. First, HHS is simply enforcing the law and exhausting its only enforcement mechanism to prevent California from discriminating against pro-life individuals and groups who don’t want to pay for abortion. 
  2. Second, California has risked its federal funds by violating the law those funds were accepted under.  If any programs are threatened, that is because California violated the law—not because of anything HHS has done. 
  3. Third, HHS’ warning doesn’t restrict abortion in any way, but just allows pro-life individuals to have pro-life insurance.  Finally, abortion ends a human life[13] and is neither a right nor healthcare,[14] no matter what abortion proponents may say. 

This situation is regrettable, and hopefully no key services will be lost in California. However, the situation could easily be resolved if California allowed pro-life individuals to have the liberty to live in accord with their conscience and values.


References

[1] Madeline Osburn, How it Took Six
Years to Put California on Notice for Forcing Abortion Coverage
, Federalist (Jan. 30, 2020), https://thefederalist.com/2020/01/30/how-it-took-six-years-to-put-california-on-notice-for-forcing-abortion-coverage/;
California Abortion Mandate Violates Federal Law, Trump Administration Says,
Cath. News Agency (Jan.
24, 2020, 2:23 PM),
https://www.catholicnewsagency.com/news/california-abortion-mandate-violates-federal-law-trump-administration-says-27035.

[2] HHS Issues Notice of Violation to
California for its Abortion Coverage Mandate
, Dep’t Health & Human Serv’s. (Jan. 24, 2020),
https://www.hhs.gov/about/news/2020/01/24/hhs-issues-notice-of-violation-to-california-for-its-abortion-coverage-mandate.html.

[3] California Abortion Mandate, supra
note 1.

[4] Id.  In fact, many groups complained about this
mandate after it was passed, but HHS during the Obama Administration did not
find the claims valid.  See
Osburn, supra note 1.

[5] Weldon Amendment, Consolidated
Appropriations Act, Pub. L. 111-117, § 508, 123 Stat. 3034.

[6] HHS Issues Notice, supra
note 2.

[7] Of course, such reliance on federal
programs violates the principle of subsidiarity in the first place.

[8] California Abortion Mandate, supra
note 1.

[9] Health Care Mandate, Cal. Franchise Tax Board
https://www.ftb.ca.gov/about-ftb/newsroom/health-care-mandate/index.html (last
visited Feb. 26, 2020).

[10]Kevin J. Jones, Catholic Uni Reform
Triggered California Abortion Mandate that Violated Federal Law
, Cath. News Agency (Feb. 23, 2020, 3:01
PM)
https://www.catholicnewsagency.com/news/catholic-uni-reform-triggered-california-abortion-mandate-that-violated-federal-law-11474
(noting how if religious employers were exempted from the mandate, roughly
28,000 individuals could purchase pro-life insurance).

[11] California Defends Authority to
Require Insurers to Cover Abortion as Protecting Women’s Rights
, Kaiser Health News (Feb. 24, 2020)
https://khn.org/morning-breakout/california-defends-authority-to-require-insurers-to-cover-abortion-as-protecting-womens-rights/.

[12] Jones, supra note 10.

[13] Dianne N. Irving, When Does Human Beings
Begin? “Scientific” Myths and Scientific Facts
, Int’l J. of Soc. and Soc. Pol’y, (Feb. 1999) https://www.princeton.edu/~prolife/articles/wdhbb.html.

[14] Health care, Merriam Webster
https://www.merriam-webster.com/dictionary/health%20care (last visited Feb. 26
2020) (defining healthcare as “efforts made to maintain or restore physical, mental, or
emotional well-being especially by trained and licensed professionals —usually hyphenated when used
attributively”).  Note—healthcare is not
defined as the subversion of the normal, healthy functions of the body,
which abortion is.

Jordan Buzza Author
Director , CMF CURO

Jordan Buzza is the Director of CMF CURO. He is a practicing Catholic, father and husband. Jordan has a BA in Political Science and a BA in Sociology from Duquesne University. He has a JD from the University of Southern California Gould School of Law, where he served as Editor-in-Chief of the Review of Law and Social Justice. After graduation from law school, he served for two years as a FOCUS missionary at the University of California, Berkeley and joined the CMF CURO team shortly thereafter.

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