The Weldon Amendment provides that no federal funding from the Departments of Labor, Health and Human Services, and Education may be made available to a Federal agency, state or local government, if they subject any health care provider or insurer to discrimination on the basis that they choose not to provide, pay for, provide coverage of, or refer for abortions.

First enacted in 2005 as part of an appropriations bill, Weldon has been readopted by every subsequent Congress.

Currently, health care providers have only one recourse to government discrimination in the form a Weldon violation: to file a complaint with the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR). In theory, the penalty for a state found in violation of Weldon would be the loss of all federal health, education, and labor funds, a penalty that would be so far-reaching in its effects it has never been imposed and might not stand up in a court of law.

In August 2014, California’s Department of Managed Health Care (DMHC), mandated health plans to start covering all abortions as a basic health care service or “standard of care” – even late-term and gender-selection abortions.

Since the mandate, large numbers of California religious employers have been forced to cover all abortions in their employee health plans, a clear violation of the federal protections provided in Weldon.  In response to this discrimination, using their only available recourse, several faith-based and legal groups filed complaints with the Office for Civil Rights. Despite numerous inquiries by members of Congress, report language in two separate omnibus bills, and several letters to the Department of Health and Human Services, the OCR did not issue a ruling until June 21, 2016, nearly two years after California’s action. The OCR ruled against the complainants in the California case, claiming that they were not “health care entities” in the manner intended by the Weldon Amendment and its legislative history, and, therefore, could not experience discrimination under the law. Moreover, the OCR indicated in its ruling that the Weldon Amendment is coercive to states and, therefore, likely unconstitutional.

Members of Congress and religious organizations immediately and vehemently disagreed with the OCR’s interpretation of the Weldon Amendment and the standing of the complainants resulting from California’s action.

Faith-based health care providers are understandably concerned that, in the future, California might begin requiring all hospitals to provide all abortions as a “standard of care” and as a condition of licensure and participation in the state’s Medicaid program (Medi-CAL).  Should this occur, other states would surely implement similar policies.

California’s DMHC represents the most direct instance of a Weldon violation, despite the questionable ruling from the OCR; however, similar cases of actual or threatened discrimination have surfaced in other states.  For example:

  • Oregon Senate Bill 894 would require health insurance plans — including a faith-based plan — to cover all abortions.  As a result, most religious employers would be forced to cover abortion-on-demand and the faith-based plan would have to relinquish its religious identity.
  • Lawmakers in Washington State have re-introduced legislation that would require all health insurers – including a faith-based plan – to cover all abortions.
  • In Kentucky, the governor blocked the proposed merger of the University of Louisville Hospital with two subsidiaries of a faith-based health care system, as the merged entity would not have provided abortion-on-demand.
  • Maryland and other state governments have come under pressure to halt the expansion of faith-based hospitals that don’t provide abortion-on-demand.
  • The Department of Financial Services in New York has implemented a regulation similar to California’s mandate that requires individual and small group health plans to include coverage of both “therapeutic” abortions and “non-therapeutic” abortions, regardless of conscience-based objections.

 

Weldon, as written, ought to be sufficient to protect faith-based health care facilities health plans and religious employers’ conscience rights. However, an ineffective, and, according to the OCR, potentially unconstitutional, enforcement mechanism has enabled California and other states to flout federal law and Congress’s clear intent to protect conscience rights. Strengthening the enforcement mechanism by adding a private right of action to the Weldon Amendment would enable faith-based entities to defend their conscience rights against government mandates to cover, pay for or provide abortion in an appropriate venue, and one that is not part of any presidential administration with a political viewpoint either aligned or against conscience protection principles—a Federal Court.

Given the ongoing discrimination in the state of California, similar threats elsewhere, and the Office for Civil Rights’ decision not to enforce Weldon as Congress intended it, religious health care entities need immediate relief. The most direct way to accomplish this goal is to amend existing statutes through an appropriations bill this year.