California Attorney General's Office

02/21/2020 | Press release | Distributed by Public on 02/21/2020 15:37

California Attorney General Becerra and Governor Gavin Newsom: California Law Protecting Women’s Reproductive Healthcare Does Not Violate Weldon Amendment

California's response letter makes clear state did not violate law

California submits FOIA request for OCR records to dispute claims and protect state interests

SACRAMENTO - California Attorney General Xavier Becerra and California Governor Gavin Newsom today sent a letter on behalf of the State of California responding to the January 24 Notice of Violation (Notice) issued by the Trump Administration's Office for Civil Rights (OCR). The Notice alleged that California law, which requires health plans in the state to offer abortion coverage, violates the Weldon Amendment, a federal appropriations rider that is intended to restrict abortion. In their response, the state leaders defend California law and highlight that not only is it legal, OCR itself previously determined that the state law does not violate the Weldon Amendment.

'California has the sovereign right to protect women's reproductive rights. Political grandstanding should never interfere with that,' said Attorney General Becerra. 'The Trump Administration's threats not only put women's health on the line, but illegally threaten crucial public health funding that Californians rely on. In California, we will continue to protect our families' access to healthcare, including women's constitutional right to abortion. We fully understand and respect the law. We'll hold the Trump Administration to the same standard.'

'It's remarkable that the President is threatening to take away funding that provides healthcare for almost half of the people who Congressman McCarthy represents in Congress - not to mention one in four Californians,' said Governor Newsom. 'This is extreme presidential overreach and would, if carried out, jeopardize lives of Californians. We will not allow it.'

In the letter, Attorney General Becerra and Governor Newsom assert that California law works in harmony with both state and federal law, including the Weldon Amendment. Both California Supreme Court precedent and the California Constitution protect women's right to privacy and reproductive freedom. Furthermore, California's Knox-Keene Act requires health plans to provide subscribers and enrollees with 'all of the basic health care services,' which includes abortion services. While the Weldon Amendment provides for certain exemptions, California has satisfied its obligations under the Weldon Amendment by granting, in 2015, the only religious exemption request it has ever received. In 2016, OCR itself concluded that California law does not violate the Weldon Amendment when it closed three complaints and found in favor of California.

California's response letter also argues that OCR's Notice illegally attempts to expand the Weldon Amendment and improperly threatens state health funding used to support crucial programs including emergency preparedness, infectious disease prevention, and child welfare programs. OCR's Notice suggests that the federal Weldon Amendment requires California to exempt 'abortion-free plans as a class' including plans that exclude coverage for abortions in all circumstances, even in cases of rape or incest. OCR further suggests the Weldon Amendment requires the Department of Managed Health Care to locate a private, licensed health plan that will provide healthcare coverage consistent with a complainant's religious beliefs. The Weldon Amendment requires neither of these actions and the State argues that this exceeds OCR's legal and enforcement authority in that it:

  • Dramatically reinterprets the Weldon Amendment in a manner that is unconstitutional and not in accordance with federal law;
  • Contradicts its own 2016 determination that California law did not violate the Weldon Amendment; and
  • Threatens California's sovereign and quasi-sovereign interests, including its regulation of healthcare and California-licensed entities.

Finally, the OCR Notice threatens California's federal health funding unless the state takes 'corrective action,' yet OCR never defines what sort of corrective action is required nor the process by which such action would be reviewed. If there is a risk to California's federal funding, then the state must be provided with an opportunity to dispute allegations. California is entitled to a fair and due process, which demands that California be permitted to review all documents and to dispute all claims. To that end, California is submitting a Freedom of Information Act request for OCR records and communications.

A copy of the letter is available here. A copy of the FOIA request is available here.