In late June, the Obama administration effectively overturned a law that has protected a basic freedom of American citizens for a dozen years.
The law, known as the Weldon amendment, has been part of annual Labor/Health and Human Services (HHS) appropriations acts since 2004. It prohibits federal agencies, and state and local governments receiving Labor/HHS funds, from discriminating against health care entities that decline to provide, refer for, pay for, or provide coverage of abortions. Weldon defines a “health care entity” to include, among other things, “a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Originally signed into law by President George W. Bush, Weldon has repeatedly been enacted without change by Congresses of both parties, and signed every year since 2009 by President Obama. He and his administration have repeatedly assured Congress and pro-life Americans that they support the law and would fully enforce it through HHS’s Office for Civil Rights (OCR).
Those assurances have now proven empty. For over a year and a half, despite repeated inquiries and expressions of frustration by Congress, the OCR has failed to act against a California policy that egregiously violates the Weldon amendment. The California Department of Managed Health Care has forced almost all health plans in the state—including employer plans provided by churches and other religious organizations—to cover elective abortions, including late-term abortions. Finally, on June 21, 2016, OCR director Jocelyn Samuels wrote to complainants’ attorneys that the administration has no intention of enforcing the federal law in this case.
California’s mandatory abortion coverage policy is an open-and-shut case, a paradigm of the kind of abuse Weldon was directed against. Yet through a mangled interpretation of the statute—one that ignores its plain text and inserts qualifiers and exceptions nowhere found in that text—the administration manages to neutralize the statute. For good measure, it announces that this law, which was repeatedly signed and praised by President Obama, is probably unconstitutional—echoing an argument long advanced by pro-abortionists, but not accepted by any court.
Who needs three branches of government when the legislative, executive, and judicial functions can all be performed for you by this administration?
The Obama Administration’s Distortion of the Law
The administration’s distortions of this law are worth reviewing. They show how a hostile executive interpretation can render a clear statute into an unenforceable mess. The OCR’s three major claims are set forth in its letter to complainants’ attorneys, and in a one-page “fact sheet” (using the phrase loosely) provided to congressional offices:
Claim 1: Weldon only forbids discrimination against a health care entity that objects to abortion on “religious or moral grounds”;
Claim 2: The health insurers selling these health plans do not have their own moral or religious objection to abortion, as evidenced by their selling other health plans that do include abortion;
Claim 3: The religious organizations filing the complaints do have moral and religious beliefs, but they are not “health care entities” so cannot file a valid complaint against the California policy forbidding others to sell them a health plan consistent with those beliefs.
Claim 1 is simply a fabrication, ignoring both the text and history of the Weldon amendment. Quite deliberately, Weldon says nothing about moral or religious objections. It was developed in 2004 to write into appropriations law the policy of the proposed Abortion Non-Discrimination Act (ANDA), which was approved by the House in 2002 but never taken up by the Senate. ANDA, in turn, was a set of editorial improvements to the 1996 Coats/Snowe amendment (42 USC §238n), which forbids governmental discrimination against medical residents and residency programs that decline to engage in abortion training. Neither Coats/Snowe (which remains in federal law today) nor ANDA mentions moral or religious objections. The purpose of ANDA, and of Weldon, was to ensure that the broad protective policy of Coats/Snowe would apply to abortions in non-training contexts. If ANDA and Weldon had reflected a narrower policy, restricted to moral or religious grounds, some doctors and hospitals would be protected from having to train in how to do abortions but could be legally required to perform them anyway, an absurd result.
When forced abortion training was discussed in Congress in 1995, one of the most compelling witnesses was Dr. Edward Hannigan, director of the OB/GYN residency program at the University of Texas in Galveston/Houston. His program, he said, did not provide abortion training, though residents who wanted such training can seek it outside the institution. The program had previously provided such training, but found it divisive among faculty, residents, and the local community. Most residents objected to doing abortions, and the few who were willing to do them hated having to do all of them. As a result, each group resented the other. His public institution could not claim a united moral consensus on the issue, much less a religious view, but he asked that it be allowed to continue its current policy, and Congress agreed. A “moral or religious” objection would not be required.
One frightening consequence of the administration’s new, more restrictive interpretation of Weldon is that it may now try to start injecting this restriction into its reading of Coats/Snowe as well, exposing residency programs without a religious affiliation to coerced abortion training policies. This would certainly be pro-abortion groups’ intent, as they have been lamenting the scarcity of abortion training programs for many years.
Why Declining to Support Abortion Doesn’t Require "Moral or Religious" Objections
There was another, deeper reason why Congress has not restricted conscience protection on abortion to “moral or religious” grounds in recent decades. Congress’s first major conscience law, the Church amendment of 1973, did indeed mention moral or religious objections, albeit in a broader context—it protects objections to sterilization as well as abortion, and some of its provisions refer to such objections regarding any activity or procedure. But in 1980 the US Supreme Court upheld the Hyde amendment, barring federal funding of almost all abortions. Defending the government’s authority to distinguish between abortion and the wide array of health care interventions it is willing to fund, the Court declared: “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.” In later decisions, the Court finally dropped the biologically nonsensical phrase “potential life” and said government has a legitimate interest in respecting the “life” of the unborn.
So if, aside from any specific moral or religious view, Congress itself can act on this objective difference between abortion and every other procedure, why can’t everyone? Why should abortion be some kind of norm, and life-affirming medical care be treated as the exception, grudgingly allowed for some minority of morally and religiously motivated dissenters? Congress couldn’t think of any reason for such a view. Nor does it make sense medically, since only 14 percent of OB/GYNs are willing to perform abortions. And the administration has provided no reason now for treating abortion as the medical norm—much less a reason for simply rewriting a statute to reflect that view.
As a basis for restricting the Weldon amendment’s protection solely to those with special moral or religious objections, all the administration cites is a remark made in 2004 by Congressman Dave Weldon (R-FL), the prime sponsor of the amendment. But here again, the administration mangles the text. Dr. Weldon’s remark, quoted in the OCR’s letter, was this: “The right of conscience is fundamental to our American freedoms. We should guarantee this freedom by protecting all health care providers from being forced to perform, refer for, or pay for elective abortions.” All health care providers, he said, not only those with moral or religious objections. He held, and Congress agreed, that abortion is simply not the kind of thing government should force anyone to be involved in.
Dr. Weldon knew something the administration ignores: To protect people with a conscientious objection, you may need to protect everyone. Then it won’t be illegal (for example) for health insurers, however amoral they may be, to sell those moral objectors a health plan they can buy in good conscience. The Obama administration’s recent action proves that Dr. Weldon was absolutely right. If, like the administration, you insist on protecting only those with an explicit moral or religious motivation, you may not effectively protect them either. They can object to plans covering abortions, but no one will be allowed to offer them anything else. In any case, the kind of legislative intent that might be gleaned, accurately or not, from a sponsor’s remark cannot override the crystal-clear text of the statute itself.
Since Claim 1 is false, Claim 2 is simply irrelevant. It doesn’t matter whether the insurance company itself has a moral or religious view against abortion. In fact, Claim 2 is doubly irrelevant, because the statute doesn’t only forbid discrimination against insurers as such. As noted earlier, it forbids discrimination against a health plan that excludes abortion. Clearly, the insurance companies in California sell other “health plans” that include abortion; the state policy forced them to change only the “health plans” that exclude it. But this is the most obvious form of discrimination possible: to forbid the very existence of a non-abortion health plan, and require by law that it be made exactly like the pro-abortion plans.
Claim 3, then, is also irrelevant, because the religious organizations don’t have to be “health care entities”—the health plan itself is such an entity.
The administration may have been wondering how a “health plan,” which is a package of health care benefits, could complain about being a victim of discrimination. But that is the wrong question. The statute does not say that only the direct victim of discrimination can complain. The reason for allowing complaints to the OCR is to ensure that those who know of a violation of the law can bring this to the attention of the OCR. Weldon does not say the federal government shouldn’t fund states that ignore particular people’s objections about their own rights—it says the federal government shouldn’t fund states that discriminate against health care entities (including health plans) that don’t facilitate, fund or cover abortion. In other words, it is simply against federal policy for governmental bodies receiving federal Labor/HHS funds to make involvement in abortion a matter of coercion rather than “choice.”
That, at any rate, used to be this administration’s own view of how this law works—a point it has insisted on to an extreme degree. In the past, when attorneys for complainants in abortion discrimination cases contacted the OCR to get an update on its investigations, they were told, in effect: “You don’t understand. We don’t represent you. Your complaint brought this situation to our attention, but now the question is whether the governmental body in question has violated a condition for receiving federal funds. This is between the OCR and the state government.”
By that interpretation, it doesn’t matter whether the person bringing the complaint is a “health care entity.” The federal government, once it knows that its own law has been violated, should enforce that law. Now the administration has reversed itself, saying that the government does represent solely the “health care entity” that is the direct victim of discrimination. But conveniently, the administration has simultaneously redefined “health care entity” so narrowly as to exclude many entities that the statute clearly includes.
Is the Weldon Amendment Unconstitutional?
This brings us to the administration’s newfound insight that this twelve-year-old law, repeatedly signed by the president and endorsed by his administration, suddenly has a constitutional problem, just when its enforcement is most needed.
The OCR cites a four-year-old Supreme Court decision on the Affordable Care Act, National Federation of Independent Business v. Sebelius. The Obama administration disagreed with this decision when it was issued, and it has somehow failed to take note of it in connection with the Weldon amendment until now. Six of the eight current justices on the Court found that Congress could not force states to expand their Medicaid program to cover all low-income adults by threatening to rescind federal funding for the existing program. According to the OCR, the court reasoned that “this threat to terminate significant independent grants was so coercive as to deprive States of any meaningful choice whether to accept the condition attached to receipt of federal funds.”
Pro-abortion groups, as well as the California attorney general, have long argued that a similar argument dooms the Weldon amendment. Up to now their lawsuits have been dismissed, with federal courts finding that the issue is not ripe for adjudication. Notably, those claims were brought to court by opponents of Weldon when it was first enacted in 2004. The administration was surely aware of those claims—and apparently gave them no credence—when it pledged to support and fully enforce Weldon in 2011.
As for the ACA case regarding mandatory expansion of Medicaid, it does not seem dispositive. It is one thing to say a state must accept a new health program it never agreed to or be kicked out of the program it already agreed to. It seems quite another thing to require states that participate in such programs to respect basic civil rights.
All civil rights laws are meant to be “coercive” in that sense. They do not merely encourage racial integration, or provide incentives to ensure equal treatment of women. And they often reach far beyond any direct stream of federal funds. In the Civil Rights Restoration Act of 1988, for example, Congress acted to ensure that receipt of federal funds by any program or activity in a large educational institution subjects all the institution’s programs and activities (including those that do not receive federal funds) to the requirements of federal anti-discrimination laws. (Incidentally, this Act also included an “abortion-neutral amendment” stating that the federal law against sex discrimination cannot be used to require institutions to provide or fund abortion—and that amendment also does not mention “moral or religious” reasons.)
But if there is any concern about overbroad penalties, an administration pledged to enforce the laws enacted by Congress could easily claim that the prohibition on giving federal funds to discriminatory state governments can be complied with in two ways: by cutting off all federal funds, or by using lesser penalties to convince the state to stop discriminating. Instead, the administration assumes that sudden withdrawal of all federal funds is the only remedy, then complains that this penalty is unconstitutionally broad—so the OCR will not have to lift a finger to enforce the law at all.
Selectively Rewriting Civil Rights Protections
We seem to have the bizarre prospect of an administration that not only enforces but unilaterally expands some civil rights laws enacted by Congress, such as bans on sex discrimination, while (equally unilaterally) promoting exceptions, loopholes, and countervailing arguments for other civil rights protections. “Discrimination on the basis of sex,” says the Administration, includes discrimination on the basis of the sex of other people a person may be attracted to (“sexual orientation”)—and any policy treating the word “sex” as having a definite biological meaning (“gender identity”). Any strong desire an individual has regarding sex or sexuality, whatever its basis or objective validity, is a right that must be fully enforced, even against those who hold moral or religious objections.
Civil rights protections for pro-life Americans are now being treated the opposite way. You must be the right person, and bring your complaint in the right way, on the prescribed grounds, and even then enforcement may be refused on the grounds that it constitutes government overreaching. The administration has even begun to suggest that a failure to ensure access to “reproductive health” procedures like abortion may constitute sex discrimination, because the ability to become pregnant is unique to women. That theory makes no sense at all in a world where the law may not define the word “woman” biologically. It also undermines any last vestige of respect for conscience rights on abortion.
Through such selective rewriting of the law, the civil rights agenda becomes merely a façade for advancing and expanding a particular ideology of the sexual revolution and its corollary, unrestrained abortion. That is a campaign the people of the United States and their elected representatives in Congress never agreed to.
If this description of what is going on is unfair, President Obama has an easy way to prove it. Now pending in Congress is the Conscience Protection Act (HR 4828, S. 2927), which would address the alleged ambiguities and loopholes the administration claims to find in the Weldon amendment. The Act clearly specifies who qualifies as a “health care entity” (including the sponsors as well as sellers of health plans), and provides a course of action so those adversely affected by a discriminatory policy can go to court to seek a legal remedy. It does not require or suggest any cutoff of funds that could be called unconstitutionally broad, but allows for a measured response aimed simply at stopping illegal discrimination. If the president supports federal conscience laws on abortion and wants them to be enforceable, as he has claimed, he need only say he would sign the Conscience Protection Act into law.
Richard M. Doerflinger recently retired from the Secretariat of Pro-Life Activities, United States Conference of Catholic Bishops, where he monitored congressional discussions of conscience protection on abortion for thirty-six years. He is a Public Policy Fellow at the University of Notre Dame’s Center for Ethics and Culture.