IN THE NEWS

Lawsuits Filed to Enjoin Federal Refusal Clause

December 20, 2004

A provision in the FY 2005 federal appropriations bill, authored by Rep. David Weldon (R-FL) and signed into law by President Bush, aims to give blanket, nationwide permission to any "health care entity"--defined as an individual or institutional health care provider or payer--to refuse to participate in abortion services or referrals for any reason. According to the Weldon Amendment, entities that refuse to participate in abortion services or referrals are protected from "discrimination" by federal agencies or programs or by state or local governments. The penalty for such discrimination would be loss of all federal health or education funding to the agency, program or government.

Arguing that the vague and sweeping nature of the Weldon Amendment has the potential to dramatically curb women’s access to reproductive health care information and services, the National Family Planning and Reproductive Health Association has filed suit in federal district court to obtain a Temporary Restraining Order and a preliminary injunction to stop enforcement of the law. In addition, last week the State of California announced it would file a suit challenging the provision. A press statement from the California Attorney General’s office said that the law overrides the ability of states to protect the lives and the privacy of women.

This sweeping abortion restriction is designed to impede access to abortion in several significant ways. For example:

It renders unenforceable the requirement that family planning projects funded under the federal Title X program provide women facing an unintended pregnancy with referrals for abortion, if requested. Importantly, though, it does not prohibit Title X projects from making abortion referrals and it does not affect the requirement that women with unintended pregnancies receive nondirective counseling about all their options, including abortion.
It prohibits states from enforcing the federal Medicaid requirement that indigent women have access to Medicaid-funded abortions in situations of life endangerment, rape and incest, because it prevents states from requiring the managed care plans they contract to provide abortions to enrollees in these circumstances.
It blocks states from taking action when a proposed hospital merger threatens access to abortion services in a local community.
It may even allow hospital emergency rooms to refuse to provide abortions as a life-saving treatment, which they are required to do under the Emergency Medical Treatment and Active Labor Act.

This draconian measure is part of a growing movement to vastly expand the scope of policies allowing health care providers, institutions and payers to refuse to participate in sexual and reproductive health services because of a moral or religious objection. Like a handful of recently enacted state policies, this new federal law is intentionally designed to undermine, if not eliminate, the ability of governments at all levels, and even of private businesses, to balance providers' conscience rights with patients' rights to exercise their own conscience and to gain access to the reproductive health services they want and need.

For more information on this movement and on recent state and federal efforts to enact “refusal clauses,” click here.