Explainer: California and Vermont’s continued abortion policies cause HHS to take action

December 18, 2020

The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) made two announcements regarding conscience protection. First, HHS announced that it will “disallow $200 million in federal Medicaid funds going to California in the upcoming quarter due to the state illegally mandating that all healthcare plans subject to regulation by the California Department of Managed Health Care (DMHC) cover abortion without exclusion or limitation.”

In addition, they announced that they have referred the University of Vermont Medical Center (UVMMC) to the U.S. Department of Justice (DOJ) for enforcement after an investigation of UVMMC’s violation of conscience protection laws.

What happened in California?

In January 2020, HHS and OCR announced a “Notice of Violation” against the state of California over its mandate that health insurance in the state cover elective abortions. This California state policy went into effect in 2014 and has been challenged by religious organizations in the courts. California’s abortion insurance mandate requires all healthcare plans to cover elective abortions, even if the organization has sincere objections to paying for or covering abortion. This abortion mandate even requires healthcare plans covering a group of Catholic nuns serving the poor to include coverage for elective abortions. Such an overwhelming state fiat on a sensitive and contested issue is well outside the bounds of both federal law and common decency.

The Notice of Violation stated that California’s abortion insurance mandate is a violation of the Weldon Amendment, first passed in 2005, which states that no federal funds appropriated for healthcare “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.” Instead of withholding all federal funding to California, HHS announced that it would withhold $200 million per quarter. OCR is charged with enforcing federal conscience statutes, including the Weldon Amendment.

Almost a year later, California has still refused to comply with the Weldon Amendment, therefore OCR referred the issue to the Centers for Medicare & Medicaid Services (CMS) for enforcement. According to HHS, the enforcement penalty against California will be disallowing California $200 million in Medicaid Federal Financial Participation (FFP) funds each fiscal year quarter, beginning January 2021, and totaling $800,000,000 annually, until California comes into compliance with the Weldon Amendment. 

What happened in Vermont?

In 2018, a nurse at the University of Vermont Medical Center (UVMMC) filed a compaint with OCR, citing that she was forced to assist in an abortion, despite her religious objections to performin the elective abortion. HHS has stated that UVMMC could have readily, and without interruption to patient services, accommodated the religious or moral objections to elective abortion of its healthcare personnel. Yet, they chose not to, and forced the nurse to perform the abortion.

OCR completed its investigation in 2019, and requested that UVMMC confirm its policies and take corrective action. UVMMC refused to comply, even though it had an obligation as a federal grant recipient. The Department of Justice filed suit in the U.S. District Court for the District of Vermont on behalf of HHS, seeking a court order requiring UVMMC to comply with the Church Amendments and uphold its contractual obligation.

What’s next?

The ERLC stands firmly on the principle that no American should be forced by the state to participate in, pay for, or be complicit in abortion. There are multiple, longstanding, and bipartisan laws in the U.S. code to prevent such grievous conscience violations. As the lines of debate have unfortunately moved in recent years on these decades of mutual respect, the ERLC has prioritized efforts to protect pro-life healthcare professionals and shield taxpayer dollars from the tragedy of abortion.

Over the past few years, we have been grateful for the strong actions by the HHS Office of Civil Rights. It is right to uphold these laws for the sacred protection of human dignity. Abortion is not healthcare. And it is deeply unfortunate that the state government in California would entangle abortion with actual healthcare services, especially during a pandemic. Now the state is facing the legal consequences of their continued conscience violation.

The ERLC continues to advocate for life at every level of the government and will work to ensure that consciences are protected.