By Peter Sullivan - 01-29-16 06:00 AM EST
Republican lawmakers are accusing the Obama administration of failing to enforce abortion law, pointing to an investigation that remains unfinished more than a year after it began.
GOP lawmakers and faith groups have protested California’s requirement that all health insurance plans cover abortion, arguing the requirement violates the federal Weldon Amendment. That provision protects health insurance plans from discrimination if they decline to cover abortions.
The Department of Health and Human Services Office of Civil Rights (OCR), which is charged with enforcing the Weldon Amendment, said in December 2014 that it had opened an investigation into the state of California’s actions after the California Catholic Conference filed a complaint.
But more than a year later, no findings have been released.
Health and Human Services Secretary Sylvia Burwell was asked about the situation at two separate congressional hearings in February 2015. She said that while she had to let the investigation run its course, she had asked the investigators to move “expeditiously.”
“The Office of Civil Rights knows this is an important issue, as you have said, and that time is of the essence,” Burwell told lawmakers.
That was 11 months ago.
With no results to speak of, Republican lawmakers are crying foul.
“I think that [President Obama] ought to go back and read the Constitution, because he is not upholding what has been passed by Congress,” said Rep. Diane Black (R-Tenn.). “Congress passed the law. He ought to enforce the law. That's his job.”
Rep. Joe Pitts (R-Pa.), the chairman of the Energy and Commerce health subcommittee, said he had raised the issue with Burwell by phone, but that all he hears back is “they’re investigating.”
“They just blow you off, basically,” he added.
“OCR takes its responsibilities under the Weldon Amendment seriously and supports clear provider conscience clause protections,” HHS spokesman Ben Wakana said in a statement. “OCR currently has open investigations related to complaints of Weldon Amendment violations. In line with OCR policy on open investigations, OCR is unable to comment further at this time because these investigations are ongoing.”
The dispute began in August 2014, when a California agency sent letters to insurance companies in the state saying that they had to cover abortions, and forbidding the exclusion of abortions that are not “medically necessary.” The order was made under an interpretation of a state law requiring plans to cover “basic health care services.”
The letters had the effect of disallowing insurance plans offered to two Catholic universities in the state that had previously excluded coverage of “elective” abortions.
The California Catholic Conference, the official voice of the state’s bishops on policy matters, filed a complaint in September 2014 with the HHS Office of Civil Rights arguing that the state’s actions violated the federal Weldon Amendment.
In October 2014, a separate group of Christian churches also filed a complaint about the insurance rules. They said the state was effectively forcing them to violate their religious beliefs.
The HHS Office of Civil Rights told the Catholic Conference in December 2014 that it had opened an investigation, but more than a year later, the conference says it has yet to hear back about any findings.
The Weldon Amendment is passed by Congress in Appropriations bills ever year alongside the better-known Hyde Amendment. It prevents federal health funding from going to a state government that subjects a “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.”
The law specifically includes a “health insurance plan” in the definition of “health care entity.”
“It's pretty clear under the Weldon Amendment that health insurers are considered a healthcare entity and therefore you can't force them to provide [abortion coverage],” said James Stansel, who was acting HHS general counsel under President George W. Bush and is now a partner at Sidley Austin.
If California is found in violation, it could lose billions of dollars in federal funding unless it changes its requirements.
Georgeanne Usova, a lawyer with the American Civil Liberties Union, countered that none of the health insurance companies themselves have filed complaints.
“There's no discrimination,” she said. “None of the health plans have any objections.”
She said California was seeking to ensure that “a woman's access to reproductive healthcare isn’t up to her employer.”
The Catholic Conference, though, is pressing HHS to finish its investigation.
The conference wrote a letter to Burwell in August noting her comments at the congressional hearing in February. “By any reasonable standard, the handling of this matter has hardly been ‘expeditious,’ ” the letter stated.
The conference also wrote that the facts of the situation “are both straightforward and publicly available.”
“We understand the political sensitivity of this matter, and the various conflicting political and public policy interests implicated with regard to it, but the law has been violated,” the letter stated. “HHS is required to act.”
Frustrated Republican lawmakers have been looking to a legislative remedy known as the Abortion Non-Discrimination Act. The measure would expand the Weldon Amendment and extend it indefinitely. It would also allow people to sue over alleged violations, rather than leaving enforcement solely in the hands of HHS.
House Republicans tried to include the measure in last month’s spending bill but Democrats rejected it.
Pitts said that the measure is unlikely to get a standalone vote, but lawmakers would try to include it in another must-pass legislative vehicle in 2016.
“Obviously we're not very satisfied with the pace of the investigation,” said Rep. Tom Cole (R-Okla.). “So I suspect it's something we'll be dealing with this year again in the Appropriations process.”