(Bloomberg View) — The Obama administration has sided with a ruling by the state of California to require health insurers to cover abortion — even for religious organizations that object to the coverage. The decision by the federal Department of Health and Human Services, interpreting a federal law called the Weldon Amendment, is legally doubtful, and will probably be challenged in court.
The uncertainty of the law’s meaning illustrates how baffling the conflict has become over the intricate web of legal principles that surround health-care coverage when it collides with religious values.
The latest example — it’s not yet a legal case — began with the California Department of Managed Health Care, a state office that says it “protects consumers’ health-care rights and ensures a stable health-care delivery system.” In 2014, the department told seven insurers that under state law, they weren’t allowed to offer coverage excluding abortion to religious organizations unless the organization predominantly employed and served people with its own religious beliefs.
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This meant that some religious employers, like churches, could get abortion-free coverage. But Catholic hospitals and universities could not, because they employ and serve lots of non-Catholics.
The Obama administration took a similar but slightly more permissive approach in offering exemptions to mandatory contraceptive care under its Affordable Care Act. It exempted churches totally and extended a further exemption to religious employers who filed a certificate – provided that their insurers would offer the coverage. That latter requirement was the focus of the Little Sisters of the Poor case that the Supreme Court failed to resolve this term.
But state laws on abortion coverage are governed by a different legal regime than federally mandated contraceptive care. The 1993 Religious Freedom Restoration Act bars Washington from imposing a “substantial burden” on most religious practice and was at stake in the 2014 Hobby Lobby case as well as the Little Sisters case. But it doesn’t apply to the states.
State entities are governed instead by the Weldon Amendment, first enacted in 2005 and reenacted in subsequent annual health-care appropriations bills. The amendment says that no funds may be made available to any agency, program, or government that discriminates against a “health-care entity” for not providing or funding abortions.
The idea is that providers can choose not to perform abortions, and no one can make them.
The law covers doctors and hospitals who oppose abortion. But it’s not clear whether it extends to insurance companies that provide coverage to both religious entities and non-religious ones.