California’s violation of federal civil rights laws

For a year-and-half, the state of California has been openly discriminating against religious employers in blatant violation of federal civil rights laws.  And the federal agency charged with upholding those laws has declined to do so, despite receiving multiple complaints from adversely affected California employers and numerous entreaties from members of Congress.

In August 2014, the California Department of Managed Health Care, suddenly and without prior notice, issued a mandate to private market healthcare plans in California requiring them to cover all abortions as a “basic health care service” – including late-term and gender selective abortions.  (Prior to this mandate, California limited coverage to medically necessary abortions.)  The new mandate violates a longstanding federal civil rights law – the Weldon Amendment.  Congress first enacted Weldon in 2002 to protect healthcare providers and insurers from governmental discrimination on the basis that they choose not to provide, pay for, provide coverage of, or refer for abortions.

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The victims of this type of governmental discrimination have only one recourse: file a complaint with the Department of Health and Human Services’ Office for Civil Rights (OCR).  This has proven entirely futile.  Numerous faith-based groups in California filed complaints with the OCR a year-and-a-half ago, but have yet to obtain information on the status or timing of the agency’s investigation.  Repeated inquiries by members of Congress have similarly been ignored, belying Health and Human Service Secretary Burwell’s regular assurances that her office takes violations of Weldon “seriously” and that the OCR is investigating California’s violation of Weldon “expeditiously.”

Meanwhile, thousands of California faith-based ministries have seen their employee health plans amended to include elective abortion coverage, in violation of their deepest moral convictions.  These groups include hospitals, churches, and orders of nuns dedicated to serving the poorest and most vulnerable in accordance with their religious vocations.

The failure of the OCR to uphold Weldon is sending an unambiguous signal to state governments: “Feel free to violate this federal law, as you will suffer no consequences.”  California heard that message loud and clear when it enacted another law last October that requires state licensed pregnancy centers to refer for abortion, even those centers that offer alternatives to abortion.  Given the OCR’s failure to uphold Weldon, there is every reason to believe that other states will soon follow California’s lead by enacting similar provisions.  Indeed, the Oregon and Washington State legislatures are already considering legislation that would require private health plans in their states to cover all elective abortions.

Congress must act promptly to deter this type of governmental discrimination.  It can do this by amending Weldon to give the victims of discrimination the ability to defend themselves in federal court against state mandates that compel them to cover, provide, pay or refer for abortion – the legal status quo with a different remedy.  Every American deserves his or her day in court.

It’s important that Congress immediately enact this protection so that faith-based groups can continue to serve their communities free from governmental compulsion to violate their core convictions.  Congress has a responsibility to ensure that the laws it enacts are enforced.  We urge our federal elected officials to take the necessary steps to ensure this vital principle is followed in respect to the Weldon Amendment.

Cox is with the Alliance for Conscience Rights.

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