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From Health Law Daily, October 24, 2014

Abortion foes allege civil rights violations over California’s elective coverage directive

By Kathryn S. Beard, JD

The Life Legal Defense Foundation (LLDF), an anti-abortion advocacy organization, and Alliance Defending Freedom, a “legal ministry” that advocates for religious freedom, filed a formal complaint with HHS’s Office of Civil Rights (OCR), claiming that California’s Department of Managed Health Care (DMHC) has violated “Federal Conscience Protections” through its interpretation of the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene Act) and the California Constitution. The complaint is rooted in a letter Michelle Rouillard, Director of the DMHC, sent to Blue Cross of California (and six other insurance providers) on August 22, 2014, stating that some of the insurer’s policies may discriminate against women by limiting or excluding coverage for the legal termination of pregnancies. A number of religious employers—both religious institutions like churches and organizations that are affiliated with a certain religion such as universities—object to providing abortion coverage.

DMHC position. According to the DMHC, all health plans in California must treat maternity services and legal abortion neutrally. It reached this conclusion upon reviewing the Knox-Keene Act, which requires the provision of basic health care services, and the California Constitution, which prohibits health plans from discriminating against women who choose to terminate a pregnancy. The DMHC also cited the California Reproductive Privacy Act and state judicial decisions that have “unambiguously established” that “every pregnant woman has the fundamental right to choose to either bear a child or to have a legal abortion.” Therefore, the DMHC stated that effective August 22, 2014, insurance providers must comply with California law and ensure that all current health plan documents are compliant with the Knox-Keene Act. The DMHC notes that all discriminatory coverage exclusions and limitations must be removed from health plan documents—such language includes exclusions for “voluntary” or “elective” abortions, or limitation of coverage to “therapeutic” or “medically necessary” abortions. Because abortion is a basic health care service, the DMHC stated that the insurance providers could omit any mention of coverage for abortion services in health plan documents entirely. Providers must file its revised health plan documents with the DMHC within 90 days of the August 22, 2014, letter, highlighting any changes to the text.

The DMHC notes that its letter is not applicable to Multi-State Plans due to 42 U.S.C. sec. 18054(a)(6), and states that “although health plans are required to cover legal abortions, no individual health care provider, religiously sponsored health carrier, or health care facility may be required by law or contract in any circumstance to participate in the provision of or payment for a specific service if they object to doing so for reason of conscience or religion. No person may be discriminated against in employment or professional privileges because of such objections.” Further, health plans are not required to cover abortions that would be illegal under California law.

Opponents’ position. The LLDF and ADF responded to Rouillard’s letter on August 22, 2014, arguing against what it characterized as the DMHC’s decision to revoke approval for certain health care plans on the grounds that the policies do not cover elective abortion. Their position is that the California Constitution only prohibits the state from discriminating against women who choose to terminate a pregnancy by withholding funding for abortions; it does not prohibit private actors from deciding what services employee health insurance policies cover. The response letter also cites the federal Weldon Amendment, which prevents funding states that discriminate against health insurance plans on the basis that abortion coverage is not provided.

The DMHC responded to LLDF and ADF’s allegations of Weldon Amendment violations on September 8, 2014. The agency states that it “carefully considered” relevant state and federal statutes, and determined that it is obligated to enforce the Knox-Keene Act and California Constitution. Therefore, the agency will not reverse its position on the scope of required abortion coverage. In response, the LLDF and ADF followed through on their threat to file an official complaint with the OCR, alleging discrimination in violation of the Weldon Amendment. The organizations have filed at least two different OCR complaints—one on behalf of Loyola Marymount University, a Catholic educational institution, and one on behalf of a group of churches and a church-run primary school.

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