The Trump administration is investigating 13 states that require employers to cover abortion in their insurance plans, saying that those mandates violate federal conscience rights protections found in the Weldon Amendment.
The Weldon Amendment bars states from discriminating against health insurers that don’t provide, cover, or refer for abortion. The Biden administration chose to interpret the amendment’s meaning almost exactly the opposite of what the text says. Biden’s Department of Justice said the employers and health care plan sponsors were excluded from Weldon amendment protections.
“Today’s announcement advances an Administration promise, corrects misguided legal interpretations of laws that OCR [Office of Civil Rights] enforces, and builds on HHS’ recent efforts to enforce conscience rights and protect human life,” Health and Human Services (HHS) said.
The HHS civil rights office initiated the investigations “to address certain states’ alleged disregard of, or confusion about, compliance with the Weldon Amendment,” office Director Paula M. Stannard said in a statement.
“Under the Weldon Amendment, health care entities, such as health insurance issuers and health plans, are protected from state discrimination for not paying for, or providing coverage of, abortion contrary to conscience. Period,” Stannard said.
Indeed, it’s rare that the plain language of a law would be subject to such contortions of legal logic as to ignore the straightforward intent and purpose of the amendment.
In 2021, the Biden administration withdrew a 2020 Notice of Violation against California. The Trump administration had previously moved to withhold $200 million in Medicaid funding because California required insurance plans to cover abortion. Biden’s HHS argued that the insurance companies involved did not actually have conscience objections, thus “interpreting away” the violation.
Incredible.
The Trump administration will seek to withhold billions of dollars in Medicaid funding from states that refuse to comply with the law.
The Weldon Amendment is one of a series of provisions known as conscience laws, which provide legal protections for individuals and health care entities that choose not to provide abortions or other types of care because of religious or moral objections.
In the years since it was enacted in 2005, there’s been a “partisan swing” in how broadly or narrowly it is interpreted depending on which party is in office, according to Mary Ziegler, a law professor at the University of California, Davis.
Ziegler said the fact that employers and plan sponsors are not mentioned among health care entities in the text of the Weldon Amendment could give Democrats an edge with their interpretation, but the question has yet to be resolved in court.
The states with the coverage requirements are California, Colorado, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Vermont, and Washington. All except Vermont have Democratic governors.
New Jersey Gov. Mikie Sherrill vigorously defended her state’s interpretation of the amendment. “New Jersey requires health insurance plans to follow all applicable laws, including protecting women’s reproductive freedom. So Donald Trump’s latest ‘investigation’ is nothing but a fishing expedition wasting taxpayers’ money,” she said.
Gov. Maura Healey defended Massachusetts’ Shield Law, which her office said “is intended to ensure that every woman can afford the essential reproductive health care they need.”
“This is the latest effort by President Trump and Secretary Kennedy to take away women’s reproductive rights,” Healey said in a statement. “In Massachusetts, we’re focused on making sure everyone can access and afford the health care services they need, including abortion care. We’re not going to be intimidated by this investigation, and we are going to continue protecting women’s access to reproductive health care.”
The problem with interpreting the Weldon Amendment is the lack of a clear, legal definition of what constitutes discrimination under the law. This has led to varying interpretations by different presidential administrations and will probably continue to be a point of contention as long as there is no definitive ruling from the Supreme Court.
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