ACLU Letter to Senator Boxer Opposing the Weldon Amendment to the FY 2005 Omnibus Appropriations Bill

The Weldon Amendment to the FY 2005 Labor-HHS Appropriations Bill: A Broad and Dangerous Refusal Clause That Threatens Women's Health

Dear Senator Boxer:

The ACLU strongly opposes the Weldon Amendment to the FY 2005 Omnibus Appropriations Bill. This amendment -- which is nearly identical to H.R.3664, the ""Abortion Non-Discrimination Act"" -- would allow virtually any health care entity to refuse to provide, cover, pay for, or even refer patients for abortions even when such actions are otherwise legally mandated.

Laws requiring the provision of abortion services tend to apply only in extreme circumstances, such as when a pregnancy is the result of rape or incest or when a woman's life or health is threatened by a pregnancy. The Weldon Amendment would allow health insurance companies, health plans, hospitals, providers, and others to ignore these laws with impunity. This broad federal refusal clause therefore endangers women's lives and undermines women's ability to make their own health care decisions during pregnancy.

The Weldon Amendment would radically alter existing law by providing broad license for all manner of health care entities -- from hospitals to insurance companies to HMOs -- to avoid basic legal requirements imposed by all levels of government. The Amendment denies all Labor-HHS-Education funds to any federal, state, or local governments that ""discriminates"" -- that is, treats a health care entity differently -- on the basis of the entity's refusal to perform, refer, train, cover, or pay for abortions. But merely enforcing federal, state, and local laws designed to ensure access to abortion services, or to information about those services, could be deemed ""discrimination"" against entities that object to those laws. The Amendment could thus deny women access to critical information about their health care options, interfere with the delivery of abortion services to poor women in medical emergencies, and impede states' ability to enforce their own laws on abortion.

The Weldon Amendment Would Endanger Women's Health

In spite of this clear public opposition to laws that permit an institution to trump the rights of individual patients to treatment and information, the Weldon Amendment would:

· Compromise the ability of Title X clients to obtain information critical to their health. Title X, which provides federal funds for contraceptive services for low-income individuals, requires that grantees provide a referral to a qualified abortion provider upon request as part of non-directive options counseling. The Weldon Amendment would prohibit the federal government from enforcing this regulation because it could be deemed ""discriminatory"" to deny Title X grants to providers that refuse to make abortion referrals. The bill would thus undermine federal standards and compromise the health of low-income pregnant women by denying them critical information.

· Interfere with the delivery of abortion services to poor women in dire emergencies. The Weldon Amendment would impede compliance with the Hyde Amendment, which mandates Medicaid coverage of abortions in cases of rape, incest, or where the pregnancy endangers a woman's life. Requiring Medicaid managed care organizations to provide such coverage, or to provide information concerning such coverage, could constitute ""discrimination"" against those entities that refuse to provide or refer patients elsewhere for these services.

· Interfere with states' ability to enforce their own laws on abortion. The Weldon Amendment could prevent those states that cover medically necessary abortions beyond those mandated by the Hyde Amendment (whether as a result of state constitutional rulings or by virtue of state laws) from effectuating that coverage by contracting only with Medicaid managed care organizations that agree to provide or refer patients elsewhere for abortion services. (More than fifteen states require such coverage.) The provision would interfere with these states' ability to enforce their own laws and to manage and ensure delivery of mandated services within their own Medicaid programs.

· Disrupt the enforcement of state health care regulations. The Weldon Amendment would thwart the enforcement of state and local laws that require entities certified or licensed by the state to address the full range of health care needs in the communities they serve. A state might be prevented, for example, from denying a ""certificate of need"" (a state-issued document that is similar to a permit) to a newly merged hospital that refused to provide even lifesaving abortions and thus left pregnant women in the community without help in medical emergencies. (Mergers between religiously affiliated hospitals and secular hospitals often raise this issue because some religious hospitals insist that the newly merged entity apply religious doctrine in the provision of health services.)

Although its precise meaning is uncertain, the Weldon Amendment could have the following additional effects. The Amendment could:

· Violate basic principles of federalism. The Weldon Amendment might interfere with the enforcement of rulings by those state courts that have concluded that their state constitutions require broader protection for reproductive freedom than the federal Constitution provides. For example, proponents claim that the bill would overrule Valley Hospital v. Mat-su Coalition for Choice, 948 P.2d 963 (Alaska 1997), in which the Alaska Supreme Court concluded that the Alaska Constitution requires that quasi-public hospitals provide abortion services. If interpreted as its proponents urge, this bill would abrogate this state constitutional decision because it would prohibit ""discrimination"" against quasi-public entities for their refusal to provide or refer for abortions. It would thus strip states of autonomy and violate basic principles of federalism.

· Interfere with the enforcement of certain state trust laws. Some state laws prevent health facilities established as charitable trusts from making significant changes in their charitable purposes. For example, charitable trust laws may prohibit a hospital founded specifically to serve a broad segment of the community from eliminating the provision of reproductive health services. At least one state has enforced its charitable trust law against a hospital that sought to convert from a community facility to a religiously controlled facility that provided more limited reproductive health services. Proponents of the Weldon Amendment argue that such a state would be deemed to have impermissibly ""discriminated"" against the hospital under this bill.

· Immunize a health care entity's refusal to provide emergency contraception, even to victims of rape. Because it does not define the term ""abortion,"" the Weldon Amendment could permit health care entities to refuse to provide emergency contraception (""EC""), even to victims of rape. Although EC is merely a high dose of ordinary birth control pills and does not interrupt an established pregnancy, some religiously affiliated providers define EC as an ""abortifacient."" They could use this bill to attempt to shield themselves from repercussions for refusing to comply with state laws that require hospitals to provide EC (or referrals for EC) to rape survivors in their emergency rooms.

Polls Show the Public Opposes Proposals Like the Weldon Amendment

The vast majority of Americans oppose allowing institutional health care providers to deny services to patients on the basis of moral or religious objections. A recent poll by the ACLU shows that:

· 76% of the public opposes giving hospitals an exemption allowing them to refuse to provide medical services to which they object on religious grounds.

· 89% of the public opposes allowing insurance companies to refuse to pay for medical services to which the insurance company objects on religious grounds.

· 79% of the public finds convincing the statement that ""[r]eligiously affiliated hospitals should not be allowed to force their religious beliefs on other people.""

For all of these reasons, the ACLU strongly opposes the Weldon Amendment and urges that it be stripped from the Omnibus Appropriations Bill.


Laura W. Murphy

Gregory T. Nojeim
Associate Director and Chief Legislative Counsel


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