Last month, I reported on Oregon’s new reproductive services bill, which forces not just Oregon taxpayers but any U.S. taxpayer to foot the bill for abortions, since Oregon receives sizeable grants from the Department of Health and Human Services.
The bill is widely hailed as the most radical in the country for providing “free” abortions with state funding, as well as requiring all insurance plans to cover abortion with no copay. Governor Kate Brown signed it into law on August 15. As noted in the August 15 AP story, the law draws $10.2 million from the state’s general fund, 6.2 million of which “will go toward expanding reproductive health services to immigrants who are otherwise ineligible under the state’s Medicaid program, including about $500,000 for abortion services.”
Is It Possible To Stop Oregon’s Law?
A joint statement from state senators Kim Thatcher and Dennis Linthicum, as quoted in an AP report, summed up concerns over the law: “Brown has enshrined into state law forced abortion funding, including for illegal aliens, even late-term and sex-selective abortions.” Reportedly, “Linthicum predicted lawsuits will be filed over the issue.”
I noted in my previous article that the bill itself reveals the way to stop it:
“If the Department of Consumer and Business Services concludes that enforcement of this section [Section 2] may adversely affect the allocation of federal funds to this state, the department may grant an exemption to the requirements but only to the minimum extent necessary to ensure the continued receipt of federal funds…”
In other words, if Congress passed a rule saying that states may not force insurers to cover abortions, or even to cover more than 50 percent of the cost of an abortion, the power of this law could be considerably restrained… [Emphasis added.]
Section 2 is the law’s mandate for insurance plans to cover abortion.
But I must make a correction here, as it turns out that the Weldon amendment, originally passed in 2004 and passed annually since then, is supposed to prevent HHS funding for just this sort of law. It is summarized here:
(d)(1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(2) In this subsection, the term “health care entity” includes an individual physician or other health care professional, 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.
This amendment would be the grounds for the lawsuits Linthicum predicted. A plain reading of the amendment would lead to the conclusion that Oregon cannot receive HHS funding, as it discriminates against insurance companies who would not otherwise cover abortions, much less with no copay or increase in deductibles.
Why The Weldon Amendment May Not Help
Legislators and the governor were surely aware of the Weldon amendment—the question is why they would bother passing this law given funding restrictions outlined in the amendment. As it turns out, California and New York both have laws requiring abortion coverage of all private insurance plans. In 2015, California churches filed a lawsuit against the state government’s requirement that all insurance plans start covering surgical abortions, also asking the Obama administration to enforce the Weldon Amendment. As Steven Ertelt of LifeNews.com reported last summer, the Office of Civil Rights concluded after an investigation that California’s abortion mandate didn’t violate the Weldon amendment.
But as Ertelt observed, the OCR based its conclusion off an erroneous interpretation of the amendment. The office stated that none of the insurance companies had cited a religious or moral objection to the mandate. As one can easily see, the amendment does not require a conscientious objector to prevent HHS funding to carry out such mandates, but California’s Department of Managed Health Care was allowed to receive HHS funding anyway.
The OCR’s conclusion probably signaled to the Oregon legislature that they won’t get their HHS funding pulled, especially since they provided some minimal protection for religious organizations. Indeed, they must have great faith that this interpretation will be upheld. Oregon received $51B of HHS funding including Medicare, Medicaid and CHIP from 2009 to 2014, and around $11.5B in the last biennium. Nevertheless, as the law itself states, if the Department of Consumer and Business Services concludes that enforcement of the mandate of private insurance companies would adversely affect funding, the provision must be nixxed.
The Future of Oregon’s Law Is Uncertain
One would surmise that any lawsuits against Oregon’s abortion law must be banking on the idea that the Trump administration will uphold the plain meaning of the amendment. Even if Oregon’s Health Authority lost its HHS funding, they could still theoretically try to rearrange their funding in other areas of government to fund abortions, relying more heavily on funding to other areas of state government. But it would be difficult and come at great political cost—one doesn’t just find $11.5 billion under the couch cushions.
No state, including Oregon, can maintain the status quo without federal dollars. The only way to stop this egregious law in its totality is for Congress bar any federal funding to states that subsidize abortion or require insurers to cover it.
