HHS' Office for Civil Rights quashed complaints Tuesday that the state of California illegally required health insurers to cover elective abortion.
Those on both sides of the issue say the decision could have implications far beyond just California.
The Alliance Defending Freedom and the Life Legal Defense Foundation filed complaints with the office in 2014 on behalf of a handful of California churches and Loyola Marymount University workers after the California Department of Managed Health Care notified seven insurers in 2014 that they had to more fully cover elective abortions.
The complaints alleged that the directive violated an amendment often added into appropriations bills called the Weldon Amendment. That amendment says federal funds cannot go to a federal, state or local program that discriminates against any healthcare entity that refuses to provide or pay for abortions.
The amendment is meant to protect healthcare entities that refuse to provide or pay for abortions for religious or moral reasons, according to the Office for Civil Rights.
The Office for Civil Rights, however, noted in its findings Tuesday that none of the seven insurers had religious or moral objections to expanding coverage of elective abortions. In fact, all the plans enacted changes to cover voluntary abortion in response to the state agency's request, according to the Office for Civil Rights. And the groups that filed the complaint wouldn't be considered “health care entities” under the Weldon Amendment.
“As a result, there is no health care entity protected under the statute that has asserted religious or moral objections to abortion and therefore there is no covered entity that has been subject to discrimination within the meaning of the Weldon Amendment,” Jocelyn Samuels, director of the Office for Civil Rights, wrote in a letter Tuesday.
Matt Bowman, senior counsel for the Alliance Defending Freedom, criticized the decision, which came down nearly two years after the complaints were filed. He said he hopes to appeal the decision.
“They're refusing to enforce this federal conscience statute that they had previously promised to enforce, which clearly protects churches from a mandate that their plans must cover abortion,” Bowman said.
But Elizabeth Taylor, executive director of the National Health Law Program, hailed the decision as an important victory.
“There are all kinds of obstacles being thrown up in the path of providing essential healthcare to women, and this is just one obstacle now that has been successfully overcome,” Taylor said.
Both Taylor and Bowman, however, agree that the decision could have wider, national implications.
The Weldon Amendment applies nationwide, so if a similar matter from another state were brought before the Office for Civil Rights, it would likely reach a similar conclusion.
Douglas Laycock, a law professor at the University of Virginia who focuses on religious liberty, called the decision Tuesday “hugely importantly.” He believes Congress meant the amendment to apply to employers offering plans, not just their insurers.
“It's so profoundly important to the religious employers,” Laycock said. “Congress tried to protect them, and HHS says there's no protection here.”
He said the decision's implications for religious employers in other states depends on “whether any other state has regulators this extreme and a legislature that would not respond.”
Laycock said 33 states have protections for religious practice that could be invoked in response to a requirement like the one imposed on insurers in California, but California is not one of those states.
The Alliance Defending Freedom is also representing a California church in a federal lawsuit filed over the same issue that makes different arguments about why insurers should not be required to cover voluntary abortions. A federal judge on Monday denied most of the California Department of Managed Care's motion to dismiss the case.