Lockyer Preparing Lawsuit Challenging Abortion Funding Amendment in Federal Spending Bill
Attorney General Bill Lockyer (D) on Wednesday said he plans to file a lawsuit in federal court challenging an amendment in the fiscal year 2005 federal omnibus appropriations bill that he called a "backdoor attempt to overturn" Roe vs. Wade, the San Francisco Chronicle reports (Egelko, San Francisco Chronicle, 12/9). A team of state lawyers currently is drafting the lawsuit, which Lockyer said would be filed in coming weeks (Thompson, AP/San Diego Union-Tribune, 12/9).
The $388 billion federal spending bill, signed into law Wednesday by President Bush, includes an amendment under which federal, state or local agencies cannot force physicians, hospitals, health insurers, HMOs or other health care entities to provide abortion services or referrals. The provision will extend to many health care providers a "conscience protection" that previously was reserved for medical students who oppose receiving abortion training.
The amendment will affect all states but mostly those that use state funds to finance abortion-related services for Medicaid beneficiaries, such as California. Forty-five states currently allow health care providers to refuse to offer abortion services without penalty (California Healthline, 11/22).
Under the provision, states that enforce laws relating to the provision of abortion services against hospitals, clinics and insurers that oppose abortion would become ineligible for some federal funds for education, labor, health and human services programs.
Lockyer said California might be among the states most affected by the amendment because of the state's laws on women's right to abortion services and a privacy guarantee included in the state constitution, the AP/San Diego Union-Tribune reports (AP/San Diego Union-Tribune, 12/9).
According to the Chronicle, the state constitutional privacy guarantee requires health care providers to remain neutral on issues of childbirth and abortion. California laws also mandate Medi-Cal coverage for abortions and require all hospitals -- including those that do not perform elective abortions -- to perform an abortion if childbirth would endanger a woman's life, the Chronicle reports.
Courts have ruled that Congress can restrict how states use federal funds, but Lockyer is expected to argue that the amendment exceeds congressional authority and violates state sovereignty in part because it could affect funding for programs not related to abortion, the Chronicle reports (San Francisco Chronicle, 12/9).
According to the AP/Union-Tribune, Lockyer said that the amendment does not include an exemption for abortions that are performed if childbirth would risk a woman's life, a provision the U.S. Supreme Court has ruled necessary in other cases related to abortion services (AP/San Diego Union-Tribune, 12/9).
Douglas Johnson of the National Right to Life political action committee said that by filing the suit, Lockyer is "grandstanding for points with pro-abortion pressure groups.'' He added, "We think the courts are going to uphold the right of Congress to set these sorts of anti-discrimination conditions'' (San Francisco Chronicle, 12/9).
California ProLife Council Vice President Mike Spence said, "We're hoping the ... amendment restores the right of individuals and organizations not to be forced to be part of the abortion industry. Most common-sense people would say if you don't want to be part of the abortion industry, you shouldn't have to. But here in California, Bill Lockyer, Planned Parenthood and the other parts of the abortion industry say you have to" (Talev, Sacramento Bee, 12/9).
American Civil Liberties Union attorney Margaret Crosby said that the amendment "confers a broad federal right to disregard laws that protect access to abortion information and service." Crosby added that the amendment could make some state laws unenforceable, such as requirements that public hospitals and clinics that offer prenatal care also provide abortions and that school health clinics provide abortion counseling and referrals, as well as a law that prohibits the seller of a hospital from restricting abortion services offered by the new owner.
Planned Parenthood Affiliates of California Director Kathy Kneer said, "We are proud that California, a pro-choice state, is taking the lead in protecting our health care and reproductive rights."
Sens. Barbara Boxer (D-Calif.) and Dianne Feinstein (D-Calif.) supported Lockyer's lawsuit (San Francisco Chronicle, 12/9). House Majority Leader Nancy Pelosi (D-Calif.) also supported the lawsuit (AP/San Diego Union-Tribune, 12/9).
Lockyer spokesperson Tom Dresslar said, "There are constitutional rights at stake, there's state sovereignty at stake and there's a lot of money at stake. We cannot afford to just sit on our hands and hope for the best, so we're going to fight it and fight it hard" (Sacramento Bee, 12/9).
KPBS' "KPBS News" on Wednesday reported on lawsuit. The segment includes comments from Lockyer (Sharma, "KPBS News," KPBS, 12/8). The complete transcript of the segment is available online. The complete segment is available online in RealPlayer.This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.