Lawmakers fight to close abortion insurance coverage loophole

The United States has historically upheld the right for businesses, organizations, and individuals to refuse funding abortions. But following the passage of Obamacare and its contraceptive mandate, threats against this right have increased.

California’s Department of Managed Health Care (DMHC) director issued a directive last year that requires all health insurance companies to provide elective abortion coverage in group plans. Washington state lawmakers are working to pass legislation that requires elective abortion coverage in all policies offered by private health insurance companies. And the Washington, D.C., Counsel sent legislation to Congress earlier this month that would force all district employers to offer elective abortion coverage in employee health insurance plans.

But three House lawmakers are working to pass a bill that would permanently protect businesses, organizations, and individuals from state or federal actions that require elective abortion insurance coverage. The Health Care Conscience Rights Act (HR 940), co-signed by 118 legislators, also enables victims to file suit in court.

“Religious freedom is a bedrock value of our society but, on President Obama’s watch, this time-honored principle is under assault,” said bill co-sponsor Rep. Diane Black, R-Tenn. “From Obamacare’s coercive HHS mandate to the unlawful, pro-abortion directive by the state boards in California, it is clear that Congress must act where the White House will not and reverse this infringement of our First Amendment rights.”

Pro-life lawmakers have attempted to pass legislation similar to HR 940 for several years. But this year, Black, Rep. Jeff Fortenberry, R-Neb., and Rep. John Fleming, R-La., plan to combine HR 940 with an appropriations bill to increase its chances of passing.

Although America has historically protected conscience rights, said Casey Mattox, senior counsel for Alliance Defending Freedom (ADF), state actions over the past year have heightened the need to codify conscience rights protections: “It’s nothing new, the idea of protecting [conscience] rights in the abortion context. But it’s somehow become a controversial decision to say people should not be forced to pay for abortions.”

The federal Hyde, Weldon, and Church amendments all currently provide protection against conscience rights violations and discrimination against those who object to funding abortions. But the Hyde and Weldon amendments require annual approval. And none of the three provide what attorneys call a “private right of action.” Without that, churches, businesses, or insurance companies cannot file suit in court when states like California mandate elective abortion insurance.

California’s abortion insurance directive, issued in August, meant even faith-based entities like Santa Clara University and Loyola Marymount University would be forced to provide elective abortion coverage.

And the only current legal action available to organizations like the two universities is an appeal to the Department of Health and Human Services to enforce existing conscience rights protections. ADF and Life Legal Defense Foundation filed an appeal for the colleges and seven churches. But the Obama administration hasn’t proven itself trustworthy when enforcing these laws, Mattox said.

“You’re thrown upon HHS’s good graces,” he said. “The need is much more pressing than it has been to make sure these conscience rights are protected.”