California Sues U.S. Over Budget's Abortion Ban

SAN FRANCISCO (WOMENSENEWS)–California is the first state to challenge an abortion amendment attached to a federal spending bill approved in December, arguing that it holds billions of dollars in education and labor funds “hostage” until states restrict women’s rights.

The Weldon amendment is only a dozen lines added to a $388 billion Omnibus spending bill signed by President George W. Bush, but it is causing controversy in the states and its fate will undoubtedly be decided in the courts. The amendment allows the federal government to deny essential funds to states that require medical professionals, health clinics, hospitals, health maintenance organizations or insurance companies to provide abortions or abortion referrals.

The amendment’s author, Rep. Dave Weldon, R-Fla., and supporters say it protects hospitals and physicians from being coerced by states or local governments into performing abortions against their moral or religious objections.

The amendment provides health care workers equal “conscience protection” given to medical students who do not want to learn abortion procedures, they argue.

“If the state doesn’t have the power to force a woman to get an abortion, then obviously it shouldn’t have the power to force someone to perform an abortion,” said Rev. Stephen E. Blaire, president of the California Catholic Conference.

California Attorney General Bill Lockyer and State School Superintendent Jack O’Connell argue that the amendment violates a woman’s right to an emergency abortion when her health or life are at stake and the state and federal laws that uphold that right.

“Congress cannot constitutionally circumvent a woman’s fundamental right to reproductive freedom through the Weldon amendment’s draconian funding restrictions,” the complaint states. The lawsuit was filed in U.S. District Court in San Francisco last month.

So far, there have been no reported cases of abortions being denied under the amendment.

Laws on the Books

California already has laws on the books that protect health-care providers who decline to offer abortion services. These laws, however, have an exception for emergencies when the life or health of the mother is at stake, a protection that dates at least to 1973 under the Supreme Court’s Roe vs. Wade decision legalizing abortion, Lockyer said.

“Equality for women is illusory unless they remain free to make their own health care decisions,” Lockyer said. “With the Weldon amendment, President Bush and Congress are denying women that freedom.”

If the Weldon amendment were enforced, California could lose $49 billion in federal funds for labor, health and human services and education. Unemployment benefits, child care for low-income parents, training for teachers, and violence and drug abuse prevention programs are all areas at risk of losing funding, Lockyer said.

The potential loss of funding for programs unrelated to abortion amounts to coercion and infringes on state sovereignty in violation of the 10th Amendment, the complaint states.

Echoing the state attorney general, O’Connell, the state school superintendent said, “The Weldon amendment threatens to hold funding for schools and other important government services hostage in an effort to force states to restrict women’s reproductive health options.”

The Weldon amendment is already being challenged in federal court by the Washington-based National Family Planning and Reproductive Health Association, which represents more than 4,000 family planning clinics, including Planned Parenthood. That lawsuit, filed in December in U.S. District Court in Washington, D.C., argues that the amendment is vague and sweeping in nature and conflicts with Title X, a federal funding program for family planning clinics. Under Title X, federally funded clinics must provide information about abortion options and referrals on demand.

Amendment Unclear

“The way the Weldon amendment is drafted, it’s hard to know what you can and can’t do at family planning clinics,” said Marilyn Keefe, vice president for public policy at National Family Planning and Reproductive Health Association. “I honestly believe that it’s only through litigation that we will get that clarification.”

The Alliance of Catholic Healthcare said medical professionals who oppose abortion need the support the Weldon amendment provides. “It establishes that ‘choice,’ when it comes to abortion, is a two-way street, and recognizes the right of doctors, nurses and other health care providers to be free of coercion if they can’t, in good conscience, because of their moral, ethical or religious beliefs, perform an abortion,” said William J. Cox, president of the Alliance of Catholic Healthcare.

The Weldon amendment “is another example of the Bush administration’s efforts to put up roadblocks to prevent women’s access to reproductive services with the ultimate goal of eliminating a women’s right to choose,” said Kathy Kneer, president and chief executive officer of Planned Parenthood Affiliates of California. She pointed out that moral and religious grounds aren’t required for a health care provider to deny an abortion. “Under Weldon, health care entities can refuse to provide or fund abortion services or even abortion referrals for any reason,” Kneer said.

Communities where the only hospital is a Catholic hospital could be without abortion services even in emergencies under the Weldon amendment. Due to religious guidelines, Catholic hospitals do not provide abortion services and states have sometimes intervened to make sure those services are available. For instance, last year New Mexico did not approve a hospital lease in one community because the hospital would not provide abortions.

Sen. Barbara Boxer, D-Calif., plans to introduce a bill next month that would repeal the Weldon amendment. Senate Majority Leader Bill Frist, R-Tenn., has promised that the bill will go to a vote, Boxer’s spokesperson said.

Whatever the outcome of Boxer’s bill or the court challenges, the amendment is only good for the term of the spending bill, which is one year. “My hope is that it won’t be renewed,” Keefe said.

Rebecca Vesely is a health care reporter at the Oakland Tribune.