Peter Kirsanow speaks to the Southeast Republican Club.
Peter Kirsanow speaks to the Southeast Republican Club.

U.S. Civil Rights Commissioner Peter Kirsanow sent the California Department of Managed Health and the District of Columbia City Council a letter taking them to task over policies that violate religious liberty

The California Department of Managed Health Care recently decided to force all employers, including churches, to pay for elective abortions in their health insurance plans announcing this in a letter sent to Blue Cross of California.

The District of Columbia City Council is considering an ordinance that violates federal law by forcing the groups to provide elective abortion coverage through their insurance plans and employ those who live and act contrary to the organizations’ pro-life mission.

The specific text in the bill reads:

An employer or employment agency shall not discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the individual’s or a dependent’s reproductive health decision making, including a decision to use or access a particular drug, device, or medical service, because of or on the basis of an employer’s personal beliefs about such services.

Kirsanow, who said he was only representing himself in the letters he sent, pointed out flaws in  DMHC’s letter:

It is difficult to see how you considered “all relevant aspects of state and federal law” when the only references are to California laws, and you provide no analysis, just a cursory citation. The issue here is less what California law requires, but what federal law requires. However, it is also questionable whether the Knox-Keene Health Care Service Plan of 1975 actually requires health plans to cover abortion as a basic health care service, or whether that is a recent interpretative gloss on the statute. “Basic health care services” are defined in § 1345 of the California Health and Safety Code:

(b) “Basic health care services” means all of the following:
(1) Physician services, including consultation and referral.
(2) Hospital inpatient services and ambulatory care services.
(3) Diagnostic laboratory and diagnostic and therapeutic radiologic
services.
(4) Home health services.
(5) Preventive health services.

Abortion services are not specifically listed as “basic health services.” In fact, it appears that the word “abortion” only appears twice in the text of the entire Knox-Keene Act, and it is not in regard to requiring plans to cover abortions.  Perhaps there is a California regulation that requires health care plans to cover abortions, but if so, one
would have expected such regulation to have been cited in one of your two letters. Assuming such regulation exists, it is also unlikely to trump a federal statute. The omission of anything more than a passing mention of federal law and the complete lack of legal analysis is particularly curious given that California previously claimed in federal court that the Weldon Amendment prevented it from enforcing § 1317 of the California Health and Safety Code.

In his letter to the DC City Council Kirsanow reminded them that their bill was in violation of a recent Supreme Court decision and Federal law.

Given that Rep. Grosso, and by extension the City Council, is aware of the Hobby Lobby decision, it is curious that the Council is moving forward with this proposed bill. The District of Columbia is not a state and only exercises legislative authority delegated to it by Congress, which retains ultimate legislative control over the District. Therefore, it is subject to the requirements of the Religious Freedom Restoration Act (RFRA). In City of Boerne v. Flores, the Supreme Court ruled that RFRA was unconstitutional only as applied to the states through Congress’s enforcement power, not as applied to the federal government.6 Because the District is not a state, it too is still subject to the constraints of RFRA. If the Council thought that RFRA’s constitutionality was in doubt, the Supreme Court’s Hobby Lobby decision should have dispelled those misgivings. Not only is RFRA lawful, but the Affordable Care Act’s contraceptive mandate violates RFRA and is therefore unlawful.

Kirsanow called on the DC City Council to abandon this bill.  He requested that the California Department of Managed Health Care answer five questions in a timely manner.

(1) What specific statutory or regulatory provision(s) explicitly requires health plans to cover elective abortions?
(2) If there is no specific statutory or regulatory provision that explicitly requires health plans to cover elective abortions, what is the basis for requiring health plans to cover elective abortions?
(3) Why do you believe the Weldon Amendment does not trump your interpretation of California state law?
(4) Why does your discrimination against health plans that do not cover elective abortions not trigger the Weldon Amendment’s requirement that California lose federal funds?
(5) How does your enforcement of the Knox-Keene Act against health care plans differ from the state’s contemplated enforcement of Section 1317 in 2005-2008?

“No American should be forced by the government to pay for other peoples’ abortions. ADF commends Commissioner Kirsanow of the U.S. Commission on Civil Rights for his letters to California and the District of Columbia urging them to reconsider government mandates that force even religious and pro-life organizations to cover elective abortions,” said Casey Mattox, senior counsel for Alliance Defending Freedom. “Commissioner Kirsanow is right when he says that California and D.C. show ‘contempt’ and ‘disregard’ for religious freedom and conscience protections. We agree with the commissioner that these ‘absurd’ mandates are ‘directly at odds’ with federal law. D.C. and California should get themselves out of legal hot water and heed the words of Commissioner Kirsanow.”

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