Conscientious objection.

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The Legal Splatter Where Religion Meets Health Care

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Obama administration has sided with a ruling by the state of California to require health insurers to cover abortion – even for religious organizations that object to the coverage. The decision by the federal Department of Health and Human Services, interpreting a federal law called the Weldon Amendment, is legally doubtful, and will probably be challenged in court.

The uncertainty of the law’s meaning illustrates how baffling the conflict has become over the intricate web of legal principles that surround health-care coverage when it collides with religious values.

The latest example – it’s not yet a legal case – began with the California Department of Managed Health Care, a state office that says it “protects consumers’ health-care rights and ensures a stable health-care delivery system.” In 2014, the department told seven insurers that under state law, they weren’t allowed to offer coverage excluding abortion to religious organizations unless the organization predominantly employed and served people with its own religious beliefs.

This meant that some religious employers, like churches, could get abortion-free coverage. But Catholic hospitals and universities could not, because they employ and serve lots of non-Catholics.

The Obama administration took a similar but slightly more permissive approach in offering exemptions to mandatory contraceptive care under its Affordable Care Act. It exempted churches totally and extended a further exemption to religious employers who filed a certificate – provided that their insurers would offer the coverage. That latter requirement was the focus of the Little Sisters of the Poor case that the Supreme Court failed to resolve this term.

But state laws on abortion coverage are governed by a different legal regime than federally mandated contraceptive care. The 1993 Religious Freedom Restoration Act bars Washington from imposing a "substantial burden" on most religious practice and was at stake in the 2014 Hobby Lobby case as well as the Little Sisters case. But it doesn’t apply to the states.

State entities are governed instead by the Weldon Amendment, first enacted in 2005 and reenacted in subsequent annual health-care appropriations bills. The amendment says that no funds may be made available to any agency, program, or government that discriminates against a “health-care entity” for not providing or funding abortions.

The idea is that providers can choose not to perform abortions, and no one can make them.

The law covers doctors and hospitals who oppose abortion. But it's not clear whether it extends to insurance companies that provide coverage to both religious entities and non-religious ones.

In its letter to the seven insurers, California was saying that the federal law doesn’t bar the state from requiring insurers to cover abortion.

Anti-abortion activists complained to the Office of Civil Rights in the federal Department of Health and Human Services. On Wednesday, the department rejected their claims, endorsing California’s decision.

Its reasoning was put forth in a letter from Jocelyn Samuels, the head of the HHS civil rights office. She had to acknowledge that the language of the Weldon Amendment includes insurers. The law defines “health care entity” to mean not only doctors and hospitals but health-insurance plans. That would seem to render California’s rule illegal.

But Samuels reasoned that the point of the Weldon Amendment is to protect people or entities who won’t provide abortions on the basis of conscience. The insurance companies don’t have a moral objection to covering abortion. All of them fund other plans for other employers that include abortion. The insurers just want to be able to provide abortion-free plans for employers who themselves have a religious objection.

There’s something plausible about the Obama administration’s logic – and also something troubling. It seems logical to say that the Weldon Amendment is aimed at protecting conscience. And it’s true that the insurers don’t have a conscientious objection of their own.

But the insurers are trying to accommodate customers who do have a conscientious objection. And the effect of California’s rule is to make it illegal for such religious employers to get an exemption.

You might think it’s good policy to make religious organizations with diverse employment and service provide abortion coverage. But that seems plainly not to have been the goal of Congress in passing the Weldon Amendment.

After all, the law would let a Catholic hospital refuse to perform abortions even if the hospital served and employed mostly non-Catholics. Why should a Catholic university’s insurance be treated differently from a Catholic hospital’s policies?

That brings us to another problem with the HHS position: the text of the Weldon Amendment never mentions conscience. Read according to its plain meaning, it should allow an insurer to refuse to cover abortion – for any reason or for none.

The upshot is that if the insurers challenge the Obama administration’s decision in court, they have a fair shot of winning.

So don’t expect the issue to go away. Religious liberty claims are the new form of objection to liberal social policy. That includes abortion as much as contraception or gay marriage.

  1. Actually, Congress meant it to. But the Supreme Court restricted its effect to the federal government in the 1997 case of City of Boerne v. Flores. Why is a story for another day.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net