Golden State's new mantra: My body. My choice. You pay.
While the public debate over the last five years has been focused on how to stop taxpayer dollars from paying for abortions, a different threat to conscience has been taking shape, largely unnoticed. Employers and individuals in some states are finding that their options for purchasing private health insurance that doesn’t cover abortion are shrinking.
In California, that option just disappeared. On August 22, the California Department of Managed Health Care sent letters to all of California’s health insurance companies informing them that, effective immediately, fully-insured plans would no longer be allowed to limit coverage to "medically necessary" abortions, much less exclude abortion coverage altogether. All plans must cover all abortions, including purely elective and voluntary abortions.
The state agency grounded its diktat in two bizarre interpretations of California law. First, DMHC said that the 1975 state statute that governs insurance mandates requires coverage of all "basic health care services," and that since abortion, even elective abortion, is a "basic health care service," it must be covered.
This interpretation of the 39-year-old law would undoubtedly astound the legislators who passed it. In fact, just 14 years ago, when a much more liberal California legislature enacted a contraceptive coverage mandate, it granted a religious exemption (albeit a narrow one) for churches. Thus, the DMHC’s position is that the Legislature in 2000 granted an exemption to churches from having to provide contraceptives, but the Legislature in 1975 intended to force every employer, including churches, to cover surgical abortions. That’s a stretch.
DMHC’s second interpretation is even more elastic, and the implications far scarier. DMHC states that the California Constitution prohibits "discrimination" against women in the form of paying for maternity services but not abortion. This assertion is apparently based on a 1980 California Supreme Court decision that struck down a law prohibiting the use of public funds to pay for abortions through the state’s medical assistance program. The Court held that paying for childbirth but not abortion violated the equal protection rights of those "similarly situated" women who decided to have abortions rather than give birth.
One of the key elements of that decision was that the government was the entity disbursing and withholding funds, and thus it was the government that was violating equal protection rights. By relying on that case in the context of private insurance, the DMHC is signaling an expansive reading of the decision, according to which, if the state cannot "discriminate" between abortion and childbirth, neither can a private entity. If the state must pay for abortion and childbirth equally, so must private entities. If a public hospital cannot allow childbirth but prohibit abortion, neither can a private hospital, even a Catholic hospital.
The DMHC’s letter to insurance companies anticipates but disavows any such conclusion. But it is hard to see such disavowal as anything but a strategic decision to wait for a more opportune moment to let the other shoe(s) drop, particularly as the state already attempted, some years ago, to force Catholic hospitals to provide "emergency" abortions.
The DMHC, however, does not have the last word on the issue of mandated abortion coverage. Ironically, help may come from the very federal agency that has spent the past five years trampling on the religious freedom of churches, religious institutions, and religious for-profit employers: the federal Department of Health and Human Services.
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