Conscience & Abortion in California

Yesterday, Morning Briefing featured a link to a news story about the bishops of California filing a civil rights complaint regarding a new requirement from the state of California’s Department of Managed Health Care (DMHC). The new rule demands that all health insurance plans in the state, except self-insured plans and those covered by ERISA, cover elective abortions, including late term abortions, labeling such procedures a “basic health service.” The decision by DHMC grew out of protests by Planned Parenthood and others after press reports indicated that Loyola Marymount University and Santa Clara University were removing elective or “voluntary” abortion come their health coverage.

I spoke with Bishop Robert McElroy, auxiliary bishop of San Francisco, by phone yesterday. “Close scrutiny of California's action in prohibiting the sale of any health insurance policy that does not cover all forms of voluntary abortion reveals why it is so insidious and must be vigorously opposed,” +McElroy told me. “Not only does this action rob millions of Californians who understand that abortion is the taking of innocent human life of the ability to purchase insurance for themselves and their families which does not violate their core moral beliefs.  Even more chillingly, this state administrative fiat enshrines in state policy the assertion that all abortions, even the most barbaric such as partial birth abortions, or the most heinous in their intent such as abortions for gender selection, are simply part of good medical practice.  This Orwellian logic is part of a larger cultural and political effort to marginalize the widely shared recognition in American society that the act of abortion is morally suspect on a profound level.  It cannot be allowed to stand.”

The Weldon Amendment puts any state’s federal funds for health care and other programs at risk if that state discriminates against an institution or organization that declines to participate in procuring an abortion in any way. Does Governor Brown realize just how far out there his DMHC is? Do Democratic leaders nationally realize that just because NARAL says something is so does not make it so? Will someone point out to our friends at Planned Parenthood that, as liberals, we object to the coercion of conscience, indeed, that such objections were what the Enlightenment was all about? Alas, theory oftentimes gets flattened by coarse political considerations and, in the event, the Weldon Amendment is on shaky constitutional grounds since the U.S. Supreme Court stripped a similar provision, threatening an end to funding for Medicaid unless the states participated in the Medicaid expansion, from the Affordable Care Act (ACA).

The new rule from California also violates the logic of the Hyde Amendment, which has been a part of federal law since 1976, renewed with each appropriations bill for the Department of Health and Human Services. The Hyde Amendment prevents the spending of federal funds on abortions except in cases where the life of the mother is at stake, or in instances of rape or incest. As a Catholic, I wish the Hyde Amendment went further but let us acknowledge its logic: Abortion may be legal, but no one should be expected to participate in or condone it against their conscience.

One of the ironies of the situation that should not go unnoticed regards the ACA. By law, every state exchange must offer at least one insurance plan that does not cover abortion. So, in California, if this DMNC rule stands, if you really want a plan that does not cover abortion, the only way to get one will be through the ACA. Indeed, as my colleague Fr. Tom Reese, SJ, pointed out, the recent report about abortion coverage from the General Accounting Office showed that many states were not complying with the ACA’s requirements in this regard, which has nothing to do with the merits of the ACA itself. “The ACA is very clear on this, recognizing the divisiveness of this issue and it respected pluralism of opinions about abortion,” said Bill Cox, President of the Alliance of Catholic Health Care, in a phone interview yesterday. Cox’s Sacramento-based organization represents three Catholic health care systems in California with a total of 48 hospitals.

Cox notes that previously, the state said insurance plans had to cover “medically necessary abortions,” that is, abortions aimed at saving the life of the mother. This is not the position of the Catholic Church of course. “Catholic health plans negotiated with state officials,” Cox explained. “The result was not always perfectly in alignment with the bishops’ ethical directives but it came pretty close.” Such negotiations presume good faith and it is hard to see how the DMHC is acting in good faith with the latest rule. The danger of getting elective abortion labeled a “basic health service” has ominous implications for the Catholic hospitals Cox represents. Would state funds for those hospitals someday be contingent on providing the “basic health service” of abortion?

Now, some of you are wondering: Why is MSW so in lather about this issue when I have been more accommodating on the subject of the HHS contraception mandate? There is a very obvious reason but, strangely, one that the pro-life community has not really articulated as well as it should. To my mind, our opposition to becoming complicit in anyway with the procurement of abortion is not primarily a religious liberty argument. Our strongest argument has nothing to do with the depths of our convictions or the commands of our conscience. Whatever else it is, abortion is a very violent act. Asking people to participate in such an act against their will would be like denying a conscientious objector his or her right to serve in a different way during wartime, or forcing a doctor who opposes the death penalty to participate in an execution. Yes, the issues of conscience and religious liberty are involved, but not only as abstract legal theories. Here, when the object of the right is something as gruesome as late term abortion, the government should tread very lightly on the consciences of others.

This is the thing the pro-choice crowd never wants to admit. They proclaim an inviolable “right to choose” but they never, or at least rarely, supply a direct object to the sentence. Choose what? They do not want to look at the thing itself, not to discuss exactly what happens when an abortion is performed, and for political reasons they also do not want the rest of us thinking such thoughts. The baby becomes a fetus, an antiseptic, clinical word, not a warm, human word. The right to choose is unspecified – who can be against choice?

Such distinctions would likely be lost on many if not most governors whose positions, on both sides of the aisle, are a combination of conviction and political necessity. But, the Governor of California is not hostile to the life of ideas. Gov. Brown is a man capable of seeing that there is nothing liberal about coercing the consciences of others and he is a man winning a re-election campaign without funding from pro-choice organizations. Let’s hope he will do the right thing and rein in his own administration’s DMHC. As Bishop McElroy said, this “cannot be allowed to stand.”