Washington State Contemplates Mandatory Abortion Coverage

On April 1, the Health Care Committee of the Washington State Senate held a two-hour hearing on what its proponents euphemistically call the “Reproductive Parity Act,” and its opponents describe as the “abortion insurance mandate.” If passed, EHB 1044 would require that if any health insurance plan provided coverage for maternity care, it “must also provide a covered person with substantially equivalent coverage to permit the voluntary termination of a pregnancy.”

The bill has already passed the Washington House of Representatives, 53-43, but in the Senate it may be a different matter. At the hearing one of the bill’s proponents claimed to have a written commitment from twenty-five senators (a bare majority) to vote for the bill, but from the comments of at least one committee member it appeared that the bill might have trouble making it out of committee. (There is a procedure for a bill to be brought to the floor even if it has died in committee, but such cases are rare.)

In his inaugural address (“The World Will Not Wait”), Jay Inslee, the state’s newly elected Democratic governor, surprised many by featuring the bill as one of his priorities. (“I look forward to the Legislature sending the Reproductive Parity Act to my desk, which I will sign.”) But even though there are a majority of Democrats in both state houses, the state senate is governed by a coalition of twenty-three Republicans and two Democrats, and there is no assurance that Gov. Inslee will have his way.

One aspect of the bill giving legislators pause was the admission that Washington was the first state even to consider legislation of this type. On the other hand, Washington’s status as an outlier on so-called social issues was worn as a badge of honor by proponents of the bill. In 1970 (three years before Roe v. Wade ) Washington liberalized its abortion law, and voters (via the initiative process) approved assisted suicide there in 2008 and same-sex marriage in 2012.

Washington already provides state-funded abortions for low-income women. And all carriers that currently provide health insurance in the state offer at least one plan that includes abortion coverage. In answer to the question of why the Reproductive Parity Act was needed, proponents said they were concerned that implementation of the Affordable Care Act might cause insurance carriers to stop covering abortions and new carriers might enter the market with more restrictive coverage.

The impact of the Affordable Care Act was the subject of sharp disagreement among witnesses at the hearing. Opponents pointed to the Weldon Amendment to the law, which prohibits use of federal funds by any state government that “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.” Health insurance plans are specifically included in the definition of “health care entity.”

To counter the fear that passage of the RPA would endanger state qualification for federal money, proponents included the following language in the bill: “If the application of this section to a health plan results in noncompliance with federal requirements that are a prescribed condition to the allocation of federal funds to the state, this section is inapplicable to the plan to the minimum extent necessary for the state to be in compliance.”

But whether such a provision would avoid jeopardizing federal funding is not so clear. In 2012 Cathy McMorris Rogers (R-WA), along with five other members of Congress, signed a letter to President Obama asking him to reaffirm his commitment to protecting individual conscience and citing last year’s version of the bill as a direct violation of the Weldon Amendment.

Critics also complained that the bill would violate the consciences of those who regard abortion as gravely immoral. EHB 1044 contains extensive references to individual conscience, but in one similar case, the conscience rights nominally protected by statute were subordinated to a “right of access” to health care. In 2006 the state attorney general was asked about regulations requiring any plan covering pharmaceutical drugs to include coverage for contraceptives, and whether state law regarding rights of conscience would provide an exemption. The attorney general said no, the regulation was still enforceable, but consciences were not violated because those who objected could simply drop pharmaceutical coverage altogether.

Critics of the RPA expressed the fear that the conscience rights identified in the bill would be similarly thrown under the bus whenever people claimed they were being denied “access” to “health care services.”

Several proponents who testified at the hearing claimed that the choice as to whether to have an abortion was a private and personal choice, and should be made by the woman alone rather than by an insurance company or an employer. Opponents, however, pointed out that the right to have an abortion is different from the right to have someone else pay for it. Since abortion coverage is already provided by many employers, and the state already pays for abortions for low-income women, the real question is whether unwilling participants will be forced to pay for abortion coverage so that there will be one less obstacle for women contemplating that “choice.”

As of Wednesday, April 3, the deadline had passed for bills to be voted out of committee, and unless it is brought to the floor in the waning hours of the legislative season, it appears to have failed this year. But the battle is far from over. In A Man for All Seasons Cromwell attempts (unsuccessfully) to use Richard Rich to charge Thomas More with bribery. Norfolk sees through it: “Oh, this is a horse that won’t run, Master Secretary.” Cromwell responds, “Just a trial canter, Your Grace. We’ll find something better.”

David DeWolf is professor of law at Gonzaga School of Law in Spokane, Washington, and a senior fellow at Discovery Institute’s Center for Science and Culture.