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HHS rejects challenge to Calif. abortion coverage rule

The Obama administration on Tuesday rejected a challenge to a California requirement that health insurance plans in the state cover abortion care, the Los Angeles Times reports (Savage, Los Angeles Times, 6/21).


In August 2014, the California Department of Managed Health Care (DMHC) sent a letter to seven insurers notifying them that all group plans in the state "must treat maternity services and legal abortion neutrally" in their coverage (Women's Health Policy Report, 3/9). The letter came after two Catholic universities in California -- Santa Clara University and Loyola Marymount University -- changed their employer health insurance policies to no longer cover abortion care unless it is necessary to save a woman's life or prevent serious adverse health outcomes (Egelko, San Francisco Chronicle, 8/11/14).

In October 2014, California Catholic Conference (CCC) filed a federal civil rights complaint alleging that the state DMHC violated the federal Weldon Amendment, which permits the federal government to withhold funding from agencies, state or local governments and other programs for discriminating against hospitals, insurers or physicians over their refusal to participate in care or coverage related to abortion. CCC also alleged that the administrative order directly targeted Catholic institutions.

In December 2014, HHS' Office for Civil Rights (OCR) announced that it had launched an investigation following CCC's allegations. Had the investigation found that California's requirement violated the Weldon Amendment, the state could have lost about $90 billion in Medicaid, education and other funding allocated through the Labor, Health and Human Services, Education and Related Agencies subcommittee (Women's Health Policy Report, 3/9).

Amid delays on HHS' ruling, conservative members of the House proposed a bill (HR 4828) that would permit individuals to file suit over alleged violations of the Weldon Amendment directly, rather than relying on HHS to enforce the rule (Sullivan, The Hill, 6/21). Currently, only HHS can enforce the Weldon Amendment, which has been passed each year in federal appropriations measures since 2005 (Women's Health Policy Report, 3/9).

HHS decision

According to the AP/Sacramento Bee, HHS' determination upholds California's 2014 order for the plans to revise their coverage.

Jocelyn Samuels, head of HHS' OCR, in a letter stated that California's rule did not violate the Weldon Amendment because the amendment applies to the health care entities, in this case the health insurers, and not to the employers using those entities' services (AP/Sacramento Bee, 6/22). Samuels wrote, "By its plain terms, the Weldon Amendment's protections extend only to health care entities and not to individuals who are patients of, or institutions or individuals that are insured by, such entities" (The Hill, 6/21).

In the letter, HHS noted that the health insurers that issued the policies limiting coverage did not oppose covering abortion, as they were willing to offer abortion coverage in other policies (Los Angeles Times, 6/21).

Samuels wrote, "At the time (California) sent the letter, all of the insurers offered plans that covered abortion, demonstrating that they have no religious or moral objection to that procedure" (AP/Sacramento Bee, 6/22). She added, "There is no healthcare entity protected under the [Weldon] 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" (Los Angeles Times, 6/21).

According to the letter, DMHC authorized one insurer, Anthem Blue Cross, to offer plans that did not include coverage for most abortion care to groups that hold themselves out as religious, such as houses of worship. Under state law, employers who hold themselves out as religious must primarily employ and provide services for people who have similar religious beliefs. Under the state's definition, religiously affiliated universities and hospitals largely do not qualify as religious employers, the AP/Bee reports (AP/Sacramento Bee, 6/22).

HHS also noted that if the policy violated the Weldon Amendment, the federal government would be forced to rescind billions in federal funding. HHS said such an action could be unconstitutional federal coercion of a state, according to a 2012 Supreme Court decision involving the Affordable Care Act (PL 111-148) (The Hill, 6/21).


The Times reports that reproductive health advocates praised HHS' decision.

Susan Berke Fogel, director for reproductive health in Los Angeles for the National Health Law Program, said, "We are pleased to see HHS has upheld the law. The Weldon Amendment is very clear to whom it applies and to whom it does not apply." She noted, "California's managed care law regulates health plans, and none of them have a problem covering abortion" (Los Angeles Times, 6/21).