BACKGROUND INFORMATION ON THE WELDON FEDERAL REFUSAL LAW AND PENDING LEGAL CHALLENGES

BACKGROUND INFORMATION ON THE WELDON FEDERAL REFUSAL LAW AND PENDING LEGAL CHALLENGES WHAT IS THE WELDON FEDERAL REFUSAL LAW AND WHY IS NFPRHA CHALLENGING THE LAW? A sweeping federal refusal law (aka the Weldon law, or abortion anti-discrimination language) was initially signed into law as part of the FY 2005 omnibus spending bill approved in December 2004. The language originated in the House Appropriations Committee and was not included in the Senate version of the Labor, Health and Human Services and Education (Labor-HHS) spending bill. Identical language was carried forward for a second year in the FY 2006 Labor-HHS Appropriations bill, despite Senate adoption of alternate language. The National Family Planning and Reproductive Health Association (NFPRHA) went to court to challenge the language in December of 2004. California Attorney General Bill Lockyer and Superintendent of Public Instruction Jack O Connell filed a second lawsuit on January 25, 2005 to block enforcement of the federal refusal law. WHAT IS THE WELDON FEDERAL REFUSAL LAW? The Weldon law is a vague and broad policy that goes well beyond any protections previously in law designed to accommodate those with moral or religious objections to providing abortion services and referrals. The law precludes all federal funding to state or local governments or federal agencies if funding to any health care entity is contingent on providing, paying for, or providing coverage or referrals for abortion. Organizations such as the U.S. Conference of Catholic Bishops strongly supported the language and lobbied for its continuation, wrongly contending that it is needed to protect the conscience of individuals and health care organizations that oppose abortion. The reality is that no federal law forces individuals to provide abortion care -- carefully crafted conscience clauses already exist to protect the religious views of individual medical providers. IS THE WELDON LAW A CONSCIENCE CLAUSE? No. While supporters of the federal refusal law claim that the provision is simply a technical change to current law that is necessary to stop a campaign to force all health care providers to participate in abortion, the enacted policy change is neither technical in nature nor a clarification of current law. This argument is simply a red herring. As noted above, no federal law forces individuals to provide abortion care. In fact, the 1973 Church amendment explicitly protects individuals who object to providing abortion care based on religious beliefs or moral convictions. No federal law requires hospitals to provide abortions either, except in a medical emergency. Moreover, upwards of 45 states have refusal clauses for either individuals or institutions that object to providing or participating in abortions. In addition, the reach of the Federal Refusal Law is sufficiently broad that it can not truthfully be considered a conscience law at all. In supposedly seeking to protect religious views, the provision effectively subjects health care entities and the patients they serve to public health protocols that could result in a lack of access to information and services that patients may need to protect their health. Moral or religious objections do not come into play at all in triggering the federal refusal law, and discrimination 1627 K St. N.W. 12 th Floor Washington, D.C. 20006-1702 Tel: 202-293-3114 Fax: 202-293-1990 www.nfprha.org

is not defined by the law. This legislation apparently seeks to accomplish the long-sought goal of conservatives to deny pregnant women access not only to services, but also information about all of their legal options. WHY IS NFPRHA CHALLENGING THE LAW? The federal refusal law arguably overrides a fundamental principle of the Title X program which ensures that pregnant women who request information about all their medical options, including abortion, are given that information, including a referral upon patient request. It tramples on medical ethics, and calls into question Title X program regulations and guidelines that make clear that the abortion referral requirement is a condition of receiving federal Title X funding. By law, Title X funds cannot be used to provide abortions and no individual is required to provide abortion referrals if he/she has an objection. Rather, it is the clinic that is responsible for ensuring that the requested information is conveyed to the patient. The Public Health Service regulations for Title X require that if requested to provide such information and counseling, [the program must] provide neutral, factual information and nondirective counseling on each of the options, and referral upon request, except with respect to any option(s) about which the pregnant woman indicates she does not wish to receive such information and counseling. Under the federal refusal law, Title X grantees and clinics, which include non-profit clinics, hospitals, family planning councils, and more than 40 state, city or county health departments, are not affirmatively prohibited from providing abortion referrals ( gagged ). However, the lack of clarity in the new provision adds a legal requirement that appears to be inconsistent with the existing legal requirement that makes the provision of abortion referrals a condition of receiving federal funds. The provision prohibits discrimination with respect to abortion referrals whether it be distributing Title X funds to other entities or assigning duties to staff. Adhering to the existing abortion referral requirement -- which puts the onus on entities to provide referrals-- could be considered discrimination and the recipient would lose all federal funds provided in the Labor-HHS-Education bill. But the impact extends far beyond the Title X program, and could have major ramifications for states, localities, and health care providers across the country. In theory, state and local governments could be prohibited from enforcing a wide range of their own laws, regulations, and constitutional mandates that ensure access to abortion services and referrals. WHAT IS THE STATUS OF NFPRHA S LAWSUIT? The National Family Planning and Reproductive Health Association (NFPRHA) filed suit on December 13, 2004 in the U.S. District Court for the District of Columbia on behalf of more than 4,000 family planning clinics across the United States that receive Title X funds to provide family planning services. NFPRHA s request for immediate relief in the form of a Temporary Restraining Order (TRO) to prevent the U.S. Department of Health and Human Services (HHS) from enforcing any aspect of the Federal Refusal Law against NFPRHA members. The request was denied on December 20, 2004. On Janaury 5, 2005, Judge Henry Kennedy heard oral arguments in NFPRHA v. Alberto Gonzales and Christian Medical Association and the American Association of Pro-Life Obstetricians and Gynecologists, Civil Action 04-020148). The suit requested a preliminary injunction based on the notion that it is virtually impossible to ascertain, without appropriate guidance from HHS, exactly what is required of a recipient of funds through the Labor-HHS spending bill. NFPRHA also argued that the provision should be struck down because it was unconstitutionally vague. Judge Kennedy issued a long-awaited ruling on September 28, 2005. Although the judge ruled against NFPRHA on the merits and denied the request for a preliminary injunction, the ruling does not impose any new obligations on Title X agencies with regard 2

to referrals for abortion. NFPRHA filed a notice of appeal in the D.C. Circuit Court of Appeals on October 24, 2005. NFPRHA s suit argued that the refusal law provision was unconstitutionally vague because it failed to define either the kinds of entities subject to its conditions or the types of discrimination it precludes. The NFPRHA brief contended that the provision left our members caught between their pre-existing obligations under Title X to refer for abortion services upon patient request and their newly-minted obligations under the Weldon amendment to avoid discrimination against health care providers that refuse to provide referrals for abortion services under any circumstances. NFPRHA further argued that the federal refusal law presented an overwhelming predicament for its members by placing them in the midst of regulatory and statutory crossfire that may ultimately carry sweeping and severe penalties for non-compliance. NFPRHA also argued that the Weldon amendment was constitutionally flawed because it represented both an improper exercise of Congress spending power and an impermissible delegation of legislative authority to executive agencies. In this first round, however, the court rejected NFPRHA s argument that the language was unconstitutional on its face, ruling that we had not established that no set of circumstances exists under which the Act would be valid. The court also rejected NFPRHA s arguments that Congress had exceeded its spending power and that the law is inherently coercive because the penalties for noncompliance are so high. The court agreed that the law may be vague, stating that there are undoubtedly more than a few uncertainties in the statute. However, the court went on to say that the consequences of this vagueness for clinics were not sufficiently clear for them to rule on that basis. The Court also determined that the case did not meet the standard for invalidating a statute because of its vagueness because it was not shown that the enactment is impermissibly vague in all of its applications. Although the decision fell far short of the desired outcome, it did offer some hope for a future remedy. The court was clear that NFPRHA has standing to sue on behalf our members. In addition, the decision acknowledged that The court has no doubt that the Weldon Amendment creates serious problems for NFPRHA members at all levels and there may well be other occasions for NFPRHA to challenge particular applications of the Amendment. In addition, the ruling states that while Weldon may not provide the level of guidance that NFPRHA or its members would prefer, may create a conflict with pre-existing agency regulations, and may impose conditions that NFPRHA members find unacceptable, none of these reasons provides a sufficient basis for the court to invalidate an act of Congress in its entirely. The decision is posted on NFPRHA's website at www.nfprha.org. CALIFORNIA FILES SECOND SUIT CHALLENGING WELDON On January 25, 2005 California Attorney General Bill Lockyer and state school Superintendent Jack O'Connell filed suit in U.S. District Court in San Francisco against the Bush administration. California is asking the court to declare the new provision invalid and to prohibit its enforcement, arguing that the state could be slapped with the amendment's severe financial penalties, for example, if it tried to enforce a state law that prohibits hospitals from refusing to perform abortions for women in emergency or lifethreatening situations. The complaint alleges that by requiring the state to refuse to protect women's constitutional rights in order to avoid stiff fiscal punishment, the provision impermissibly infringes on state sovereignty in violation of the 10th Amendment to the U.S. Constitution. According to the California Attorney General s office, in prior cases involving spending conditions, courts have deferred to Congress and been reluctant to strike down restrictions on states' receipt of federal funds. But the penalty under the federal refusal law is more coercive than those previously considered by the courts because, 3

unlike the others, it punishes violations by denying all affected federal funds to the entire state or local government. WHAT IS THE HISTORY OF THE WELDON REFUSAL LAW? The Weldon provision is modeled after stand alone legislation, the so-called Abortion Non- Discrimination Act (ANDA; S 1983), which first surfaced in December of 2001, when, at the request of the U.S. Conference of Catholic Bishops, then-house Majority Leader Dick Armey (R-TX) attempted to tack the provision onto an otherwise non-controversial community health center reauthorization bill. Although initially rebuffed, Representative Armey continued to push for the legislation and ultimately used his considerable influence to bypass committee consideration of the bill altogether and bring ANDA directly to the floor. ANDA passed the House on September 25, 2002 on a vote of 229-189. A companion measure was introduced in the Senate by Judd Gregg (R-NH) in 2003. Proponents of ANDA misleadingly characterized it as a mere clarification of a narrowly drawn 1996 amendment (known as the Coats amendment) to the Labor-HHS spending bill that addressed abortion training in graduate medical education programs. The Coats amendment was narrowly crafted to maintain federal funding and legal status for medical residency and health professional training programs that do not have an abortion training component and do not wish to refer individuals seeking such training to another institution. It also prohibits discrimination against any such training programs or individual practitioners refusing to undergo abortion training in these programs. The Coats amendment was passed after the Accreditation Council for Graduate Medical Education (ACGME) adopted a professional standard requiring obstetrics and gynecology residency programs to provide abortion training. The ACGME standard allows an exemption for programs or physicians with religious or moral objections, so long as programs opting out refer individuals in their program who want such training to another institution. Under Coats, in order to preserve federal funding and legal status, the training programs no longer need a religious or moral basis for their noncompliance and also are no longer obligated to refer health care practitioners desiring abortion training to other programs. Rather than clarifying this language, ANDA radically expands and distorts the Coats amendment which was a fragile compromise that was never intended to extend beyond the narrow scope of postgraduate physician training programs. ANDA resurfaced in concept in 2004, when the House Appropriations Committee approved the Weldon amendment by voice vote on July 14, 2004 during full committee markup of the FY 2005 Labor-HHS appropriations bill. Even though the Senate version of the FY 2005 Labor-HHS bill did not include the Weldon provision, Senate appropriators were unable to remove, or even alter the House-passed language during conference negotiations. However, many members of the House and Senate weighed in strongly in favor of removing the language. Prior to Senate approval of the FY 2005 omnibus spending bill, ten women senators sent a letter to Senate Appropriations Chair Ted Stevens (R-AK). In response to the opposition, Senate Majority Leader Bill Frist (R-TN) agreed to hold a Senate vote by April 30, 2005 on a bill that Senator Barbara Boxer (D-CA) had planned to introduce to repeal the Federal Refusal Law. Rather than pursue this avenue, Senator Boxer decided to forgo the vote and instead focus on efforts in the Senate to ensure that the language was not carried forward in the FY 2006 appropriations bill. SENATE S ALTERNATIVE TO WELDON REJECTED IN CONFERENCE Senate Labor-HHS Appropriation Subcommittee Chair Arlen Specter (R-PA) and Ranking Member Tom Harkin (D-IA) responded to the House continuation of Weldon in the FY 2006 health spending bill by drafting their own broad and straightforward conscience Law for health care providers that achieved Weldon s stated goal to ensure that no one with an objection to providing abortion services will be 4

forced do so. Under the Specter-Harkin language, included in the Chairman s mark, adopted by the Senate Appropriations Committee, and included in the final Senate bill, any entity that tries to force a health care professional to provide, assist, or train for abortions would be barred from receiving funds under this language. Unlike Weldon s language, the Specter-Harkin approach is a genuine conscience protection because it specifies that a refusal must be based on a religious or moral objection. The Weldon law contains no such requirement. The two Senators spoke out forcefully in support of their compromise language during conference negotiations. However, House GOP leaders deemed the retention of the Weldon language non-negotiable and forced the Senate to recede to the House. Perhaps fearing that Senators Specter and Harkin would prevail, on November 9, 2005, Senator Rick Santorum (R-PA) re-introduced S. 1983, the so-called Abortion Non-Discrimination Act (ANDA). The legislation is similar to both the federal refusal law provision contained in the Labor-HHS bill and legislation of the same name championed by the U.S. Conference of Catholic Bishops and approved by the House in 2002. TEXT OF WELDON LAW None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. In this subsection, the term health care entity includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan. March 2006 5