California Challenge To Federal Abortion Law Undecided After Three Years, San Francisco Chronicle Reports

Main Category: Abortion
Also Included In: Medical Malpractice / Litigation
Article Date: 07 Feb 2008 - 5:00 PDT

email to a friend   printer friendly   view / write opinions   rate article

A California challenge to a federal abortion law that denies all federal funding through the annual health spending bill to a state that "discriminates" against physicians, hospitals or insurers that do not offer abortions or abortion referrals remains undecided after three years, the San Francisco Chronicle reports (Egelko, San Francisco Chronicle, 2/6).

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, 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 also bans the agencies from taking action against providers and insurers who do not provide or cover abortion services and 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 alleges that the provision violates Roe v. Wade because it does not specify exceptions in cases of medical emergency. The suit also states 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, 6/12/06).

U.S. District Judge Jeffrey White in June 2005 refused to dismiss the challenge and rejected arguments from White House officials that the challenge was premature because the federal government had not yet attempted to enforce the law against the state. White in January 2007 heard arguments in the case, but he did not request further arguments or announce when he would rule on the case. On Jan. 24, 2008, he ordered attorneys from each side to tell him within one week whether the law was still in effect. The attorneys replied six days later, saying that the amendment was part of the FY 2008 budget President Bush signed in December 2007, which is effective until Sept. 30. According to the Chronicle, White as a district judge can determine when he will rule on cases.

California Deputy Attorney General Antonette Cordero said there is no "urgency" in the ruling as long as the "federal government is not trying to enforce the law." She added that she has had no reports of the state ordering a physician or health facility to perform an emergency abortion or penalizing one for not doing so. James Sweeney, a lawyer for the Christian Medical & Dental Association and other groups that are defending the law, said he has "absolutely, utterly no idea" why White has not ruled on the lawsuit. He added that since White heard arguments, there have not been any Supreme Court rulings or other developments that might have changed the legal outlook on the case. Sweeney said his clients do not mind the delay in the ruling as long as the law remains in effect (San Francisco Chronicle, 2/6).

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.

© 2007 The Advisory Board Company. All rights reserved.