Sebastian's Point

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California Senate Bill 245: “Free” Abortion on Demand

Susan S. Arnall, Esq.  |  28  July 2021

Senate Bill 245[1] is California’s latest violation of federal and state law, attempting to force  private entities and taxpayers to fund abortion on demand.

 

SB 245 prohibits health care plans from imposing any deductible, coinsurance, copayment, or any other cost-sharing requirement on coverage for all abortion and abortion-related services.  The bill’s requirements also apply to Medi-Cal managed care plans. Violation of the bill by a health care service plan would be a crime.[2]

 

Abortion: Federal or State

The Preamble to the Declaration of Independence recognizes the right to life as a self-evident truth.[3] Self-evident means, by its very existence, it needs no further proof.

For most of our nation’s history, state laws governed the practice of abortion. The Supreme Court changed that in its landmark 1973 decision Roe v. Wade.[4] The Court found the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution created a fundamental "right to privacy" protecting a pregnant woman's right to have an abortion.

Since Roe v. Wade, the Court has refined the legal standard of review for determining whether a state law impermissibly burdens the constitutional “right” to abortion; but has declined to review the central holding of Roe. The Supreme Court is set to revisit Roe, and its progeny, agreeing to hear[5] Dobbs v. Jackson Women’s Health. The Mississippi law at issue in Dobbs prohibits abortions after the 15th week of pregnancy. Depending on the outcome in Dobbs, laws governing abortion may return to the exclusive purview of state governments.[6]

Many states have [been] preparing for this moment. According to Guttmacher, as of [June 1, 2021], 22 states currently have laws on the books that could curtail abortion access. Nine states have kept abortion restrictions dating back from before Roe, which currently renders them unenforceable, and 10 states have enacted so-called "trigger bans," laws banning all or nearly all abortions that would go into effect should Roe be overturned.[7]

States have been preparing for that potential shift in legal power; some by enacting laws to safeguard the health of the mother by restricting abortions,[8] others by expanding the rights of mothers to obtain an unlimited number of abortions at taxpayers’ expense. California is an example of the latter. 

 

Conscience Protections

Enacted four years after the Roe v. Wade decision, the Hyde Amendment bars the use of federal funds to pay for abortion except to save the life of the woman, or if the pregnancy arises from incest or rape.

 

Beginning in the 1970s, Congress enacted the “Church Amendments,”[9] protecting individuals and entities that object to performing abortion or sterilization procedures contrary to their religious beliefs.[10] In 1996, Congress enacted the Public Health Service Act,[11] prohibiting any federal, state, or local  government receiving federal financial assistance from discriminating against a health care entity for its refusal to engage in referrals, training, or performance of induced abortions.

 

The Weldon Amendment

In 2004, the federal government adopted the conscience protection law, the “Weldon Amendment,”[12] prohibiting discrimination against health care providers who do not cover abortion. “The law's requirements apply to federal agencies and programs as well as state and local governments receiving federal funds from HHS.”[13]  The Weldon Amendment has been included in every Health and Human Services appropriations act since 2005.[14]

In direct violation of the Weldon amendment,[15] beginning in 2014, California’s Department of Managed Health Care coerced all state employers —including churches— to fund and facilitate elective abortions through health insurance plans. Over religious employers’ objections, in 2016 the federal Department of Health and Human Services refused to enforce the Weldon Act against California’s Department of Managed Health Care.[16] Although the HHS issued a notice of violation to California early in 2020, enforcement as stalled under the new Administration.[17]

 

SB 245 Violates Federal Law

California legislators now seek to pass Senate Bill 245 to force private and state-run health plans to absorb the full cost for abortions, thereby making the procedure “free of charge” to patients, without deductibles or co-pays. No doubt emboldened by ongoing HHS non-enforcement, pro-abortion state legislators sponsoring SB 245 are doubling down on California's existing violation of federal law by forcing all insurance plans, state and private, to make abortion free of charge.

SB 245 Violates the California State Constitution

In her letter of opposition before the Assembly Committee on Appropriations, Catherine Short, Esq., Chief Legal Officer of Life Legal Defense Foundation, points out that Senate Bill 245 also violates the California state constitution because it  coerces women to choose abortion over childbirth in violation of Article 1, section 1, of the California Constitution.[18]

Quoting the state supreme court decision Committee to Defend Reproductive Rights v. Myers,[19] Ms. Short explained to legislators that California’s Constitution forbids state-endorsed discrimination between abortion and childbirth:

By virtue of the explicit protection afforded an individual's inalienable

right of privacy by article I, section 1 of the California Constitution,

however, the decision whether to bear a child or to have an abortion is so

private and so intimate that each woman in this state -- rich or poor -- is

guaranteed the constitutional right to make that decision as an individual,

uncoerced by governmental intrusion. Because a woman's right to choose

whether or not to bear a child is explicitly afforded this constitutional

protection, in California the question of whether an individual woman

should or should not terminate her pregnancy is not a matter that may be

put to a vote of the Legislature.[20]

 

Furthermore, the Senate’s own legislative analysis of SB 245 explicitly acknowledges the state supreme court’s neutrality requirement of Committee to Defend Reproductive Rights v. Myers:

The Knox Keene Act requires the provision of basic health care services and the

California Constitution prohibits health plans from discriminating against women

who choose to terminate a pregnancy. Thus, all health plans must treat maternity

services and legal abortion neutrally. Exclusions and limitations are also

incompatible with both the California Reproductive Privacy Act and multiple

California judicial decisions that have unambiguously established under the

California Constitution that every pregnant woman has the fundamental right to

choose to either bear a child or to have a legal abortion.[21]

 

Simply put, Senate Bill 245 does not require companies to pay for the cost of giving birth or efforts to adopt. On its face, the bill selectively discriminates against families and women who want to give birth.

Thus, Senate Bill 245 violates the California Constitution.

Conclusion

SB 245 is an unconstitutional attempt at shoring up abortion rights prior the U.S. Supreme Court’s review of Mississippi’s challenge to Roe. v. Wade and its progeny. California state legislators are ignoring the Declaration of Independence, federal conscience rights, California’s constitutional mandate and its Supreme Court ruling in an ideological attack on the self-evident right to life - at public expense.

_______________________________

[1] SB-245 Health care coverage: abortion services: cost sharing. (2021-2022) https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=202120220SB245.

[2] Id. See SB 245, as amended April 12, 2021.

[3] Preamble to the Declaration of Independence.

[4] Roe v. Wade, 410 U.S. 113 (1973).

[5] https://www.supremecourt.gov/orders/courtorders/051721zor_6537.pdf

[6] Were the U.S. Supreme Court to find a constitutionally protected right to life from conception or from some point in gestational development, such as when the baby feels pain, such a ruling could not only overturn Roe v. Wade, it could also create a federal right to life based on the inherent humanity of the unborn, thereby overriding state laws protecting abortion.

[7] Kelly, Caroline. “More States Are Expected to Pass Anti-Abortion Bills Targeting Roe v. Wade.” CNN. Cable News Network, May 18, 2021 https://www.cnn.com/2021/05/18/politics/mississippi-abortion-case-impact-supreme-court-abortion-bans-activists/index.htm (citing “Abortion Policy in the Absence of Roe.” Guttmacher Institute, June 1, 2021. https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe ) l.

[8] Id.

[9] “Church Amendments, 42 U.S.C. § 300a-7 - HHS,” accessed July 15, 2021, https://www.hhs.gov/sites/default/files/ocr/civilrights/understanding/ConscienceProtect/42usc300a7.pdf ; “42 U.S. Code § 300a–7 - Sterilization or Abortion,” Legal Information Institute (Legal Information Institute), accessed July 15, 2021, https://www.law.cornell.edu/uscode/text/42/300a-7.

[10] HHS Office of the Secretary and Office for Civil Rights (OCR), “Conscience Protections for Health Care Providers,” HHS.gov (US Department of Health and Human Services, March 22, 2018), https://www.hhs.gov/conscience/conscience-protections/index.html ; Content created by Office for Civil Rights (OCR). Content last reviewed on March 22, 2018. https://www.law.cornell.edu/uscode/text/42/300a-7

[11] https://www.hhs.gov/conscience/conscience-protections/index.html; “Public Health Service Act, 42 U.S.C. § 238n,” accessed July 15, 2021, https://www.hhs.gov/sites/default/files/ocr/civilrights/understanding/ConscienceProtect/42usc238n.pdf.

[12] The full text of the Weldon Amendment is as follows:

  1. None of the funds made available in this Act [Labor/HHS] 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.

Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. H, tit. V, § 507(d) (Dec. 18, 2015).

https://www.hhs.gov/sites/default/files/ocr/civilrights/understanding/ConscienceProtect/publaw111_117_123_stat_3034.pdf ; HHS Office of the Secretary and Office for Civil Rights (OCR), “Conscience Protections for Health Care Providers,” HHS.gov (US Department of Health and Human Services, March 22, 2018), https://www.hhs.gov/conscience/conscience-protections/index.html.

[13] Pate, Randolph. “Protection of Health Care Providers' Right of Conscience: What Federal Law Says.” The Heritage Foundation. Accessed June 13, 2021. https://www.heritage.org/civil-society/report/protection-health-care-providers-right-conscience-what-federal-law-says

[14] As this article goes to press, the current Administration is pushing a bill that will repeal both the Hyde and Weldon Amendments. C. Douglas Golden, “Dems Advance Hyde Amendment Repeal, Move 1 Step Closer to Forcing You to Pay for Abortions,” The Western Journal, July 14, 2021, https://www.westernjournal.com/dems-move-1-step-closer-forcing-pay-abortions/?utm_source=telegram&utm_medium=westernjournalism&utm_campaign=telegramfeed&utm_content=2021-07-13.

[15] U.S. Department of Health and Human Services.  “HHS Issues Notice of Violation to California for its Abortion Coverage Mandate.” News Release, January 24, 2020. 

https://www.hhs.gov/about/news/2020/01/24/hhs-issues-notice-of-violation-to-california-for-its-abortion-coverage-mandate.html 

[16] The United States Conference of Cathlic Bishops have objected to the HHS’ refusal to enforce federal law.  HHS Office of the Secretary and Office for Civil Rights (OCR), “Conscience Protections for Health Care Providers,” HHS.gov (US Department of Health and Human Services, March 22, 2018), https://www.hhs.gov/conscience/conscience-protections/index.html. According to the Guttmacher Institute, California currently allows some health care providers and religious to refuse to provide abortion services. “An Overview of Abortion Laws.” Guttmacher Institute, July 1, 2021. https://www.guttmacher.org/state-policy/explore/overview-abortion-laws.

[17] U.S. Department of Health and Human Services, “HHS Issues Notice of Violation to California for Its Abortion Coverage Mandate,” HHS.gov (US Department of Health and Human Services, January 21, 2021), https://www.hhs.gov/about/news/2020/01/24/hhs-issues-notice-of-violation-to-california-for-its-abortion-coverage-mandate.html.

[18] Catherine Short, Esq., Chief Legal Officer of Life Legal Defense Foundation. Opposition Letter to SB 245 dated June 26, 2021, submitted to California Senate Appropriations Committee.

[19] Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252 (1981).

[20] Id. at 284.

[21] Analysis, Senate Committee on Health, April 7, 2021, at 4-5 (“The Knox Keene Act requires the provision of basic health care services and the California Constitution prohibits health plans from discriminating against women who choose to terminate a pregnancy. Thus, all health plans must treat maternity services and legal abortion neutrally. Exclusions and limitations are also incompatible with both the California Reproductive Privacy Act and multiple California judicial decisions that have unambiguously established under the California Constitution that every pregnant woman has the fundamental right to choose to either bear a child or to have a legal abortion.”) (emphasis added). https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB245

Susan Swift Arnall is a published author and political commentator, attorney and married mother of seven children. She is currently the Director of Outreach and Engagement at the Right to Life League, America’s first pro-life organizationTM. Learn more about the League at www.righttolifeleague.org.