U.S. Health and Human Services Secretary Alex Azar announced Wednesday that the department would be withholding $200 million in Medicaid funds per quarter from the state of California unless it reverses its abortion policy.
In 2014, the California Department of Managed Health Care classified abortion as a “basic health service” under the Affordable Care Act and required all public and private insurance plans in the state to fund elective abortions. Churches and other nonprofit religious organizations’ health policies were not exempt from the regulation, meaning participants were required to fund abortion through their purchase of health plans.
Alliance for Defending Freedom sued the state on behalf of several Christian organizations, arguing that requiring taxpayers to fund abortion is unconstitutional.
The federal funding of abortion has been regulated since the 1977 Hyde Amendment, which currently forbids the use of federal funds for abortions except in cases of life endangerment, rape or incest. It has generally guided taxpayer funding of abortions under the jointly administered federal-state Medicaid program. At a minimum, states are required to cover abortions that meet federal exceptions.
However, conscience provisions contained in 42 U.S.C. § 300a-7, known as the “Church Amendments,” were enacted to protect the conscience rights of individuals and entities who object to performing or assisting in the performance of abortion or sterilization procedures if doing so is contrary to their religious beliefs or moral convictions.
In 1996, section 245 of 42 U.S.C. § 238n, as added, prohibited the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that it “refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions,” among several other provisions.
In 2005, the Weldon Amendment was added as part of an HHS appropriation and has been readopted in every subsequent appropriations act since. It provides that “[n]one of the funds appropriated to the Departments of Labor, Health and Human Services, and Education 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.”
The Trump administration argues that California’s requirement violates the Weldon Amendment; the Obama administration interpreted it to only refer to protecting health insurance plans, not their purchasers.
“If California wants to provide abortion services, it can do so,” Roger Severino, director of the Department of Health and Human Services’ Civil Rights Department, said. “What the state is not free to do is force people to pay for other people’s abortions.”
The ADF and Life Legal Defense Foundation filed formal complaints with the U.S. Department of Health and Human Services against California’s mandate after their complaint first filed with the state health department went nowhere. The department maintains that its policy requiring all health insurance plans must cover all abortions with no exceptions stands.
ADF uncovered the fact that state employees of the California health department sent and received e-mails from Planned Parenthood, the nation’s largest abortion provider, asking state officials to specifically require that health plans offered to religious organizations include coverage for abortion, regardless of conscientious objections. According to the emails, Planned Parenthood reportedly threatened to promote its own legislative “solution” if the agency didn’t implement its recommendation.
“No state agency anywhere has the right to demand that church health insurance plans contain this kind of coverage, which clearly violates these churches’ most sincerely held religious beliefs,” ADF Senior Counsel Erik Stanley said in a statement. “The state has no business implementing Planned Parenthood’s scheme to force religious groups to act contrary to their own pro-life beliefs under the threat of massive penalties if they don’t comply.”
Carol Tobias, president of National Right to Life said, “Health care is designed to save lives and protect our health. The state of California’s coercive policies have meant that nearly every health insurance plan, no matter if an individual works for a business, a church or religious school, is required to pay for an elective abortion.”
The Family Research Council has tracked states according to which receive Medicaid, Title X family planning funds, and state appropriations to fund abortion. According to one of four maps, 23 states have defunded, or attempted to defund, taxpayer-funded abortions, although some of these efforts have been stalled or stopped by the courts.
Texas is the only state to have defunded, or attempted to defund, taxpayer-funded abortions in all three areas. It is also the only state to have been granted a Section 1115 waiver from the Trump administration to divert federal Medicaid funds away from abortion providers.
Arkansas, Arizona, Florida, Indiana, Louisiana and Mississippi passed laws to defund abortion providers with taxpayer dollars.
Sixteen states – Alabama, Idaho, Iowa, Kansas, Kentucky, Michigan, Missouri, Nebraska, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Utah and Wisconsin – attempted to partially defund but not in all three areas and/or temporarily defunded policies through executive orders, state budgets, or other measures.
Fourteen states have taken no action to defund abortion providers: Alaska, Colorado, Delaware, Georgia, Minnesota, Montana, Nevada, North Dakota, Pennsylvania, Rhode Island, South Dakota, Virginia, West Virginia, Wyoming.
Thirteen states have taken steps to directly fund abortions and abortion providers with taxpayer dollars: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Mexico, New Jersey, New York, Oregon, Vermont, and Washington.