Federal Judge Dismisses California Challenge To Federal Abortion Law

Main Category: Abortion
Article Date: 20 Mar 2008 - 5:00 PDT

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U.S. District Judge Jeffrey White on Tuesday in San Francisco dismissed a California challenge to a federal abortion law that denies all federal funding through the annual health spending bill to states that "discriminate" against physicians, hospitals or insurers that do not offer abortion services or abortion referrals, the San Francisco Chronicle reports. White in his ruling said the state's challenge was premature because an alleged conflict between two California laws and the federal law might never be an issue. However, state officials have said that the federal law could cost California $37 billion if the state enforces its law that requires hospitals or clinics to perform an abortion in an emergency, according to the Chronicle (Egelko, San Francisco Chronicle, 3/19).

Known as the Weldon law, after its sponsor Rep. Dave Weldon (R-Fla.), the federal language was added to the annual health spending bill (HR 4818) in fiscal year 2005 and has been included in subsequent annual health spending measures. The Weldon law prohibits federal funding for health services unless the recipient agrees not to "discriminate" against health care professionals or agencies that do not "provide, pay for, provide coverage for or refer for abortions."

The law also prohibits federal, state and local agencies from requiring doctors, hospitals, health plans or other health care entities to provide abortion services or referrals to a different provider. The provision bans the agencies from taking action against providers and insurers who do not provide or cover abortion services. It also extends to health care providers nationwide the same "conscience protection" currently given to medical students who do not want to undergo abortion training.

California Attorney General Bill Lockyer (D) and state school Superintendent Jack O'Connell in January 2005 filed a lawsuit challenging the provision. The suit alleged that the provision violates Roe v. Wade because it does not include exceptions in cases of medical emergencies. The suit also said that the provision will block the state from enforcing two of its own laws. One law states that medical emergencies are an exception to health care providers' right to refuse to participate in abortion services. The second law requires all health care facilities in the state to provide emergency services, including abortion, to anyone who requests them or to help individuals obtain the services elsewhere (Daily Women's Health Policy Report, 2/6).

White in his ruling said that the state could not file suit against the federal government "until a woman needs but is refused emergency abortion-related services, California then attempts to enforce its law requiring the provision of such services, and the federal government denies or threatens to deny California federal funds as a result" (Elias, AP/Contra Costa Times, 3/19). If federal officials said they would deny funding, the challenge "then would be ripe for a court to determine," White said.

White also cited another federal law in his ruling that requires hospitals that receive federal funds to stabilize patients with emergency conditions or transfer such patients to another hospital. Although the law does not mention abortion, it could be unified with the Weldon amendment to require states to provide abortions in emergency situations, White said.

California's Deputy Attorney General Antonette Cordero said state officials would have preferred to eliminate the possibility of financial penalties but added that California would be satisfied if the state and federal laws were interpreted to avoid conflict. She added that the ruling will not prevent the state from enforcing its laws. Timothy Smith, an attorney representing the American Association of Pro-Life Obstetricians and Gynecologists and other groups that supported the Weldon amendment, said White's ruling is satisfactory but added that the groups will defend their "right to exercise their conscience" if the state later attempts to penalize physicians who refuse to perform abortions (San Francisco Chronicle, 3/19).

Reprinted with kind permission from http://www.nationalpartnership.org. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families, published by The Advisory Board Company.

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