January 22, 2021

DCTRS

Damascus Center for Theoretical and Civil Rights Studies

Hiltzik: Trump takes another swipe at California over abortion

On his way out the White House door, President Trump has paused to remind us that he always has time for an act of pointless vandalism aimed at women’s reproductive healthcare.

On Wednesday, Trump’s Department of Health and Human Services announced it was docking California’s Medicaid program $200 million because state law requires all health insurance plans to include coverage for abortions.

The penalty will take effect starting in the first quarter of next year, according to the department, and continue at the rate of $200 million per quarter until the state changes its rule.

Conscience and religious freedom…is not a partisan football.

Health and Human Services official Roger Severino, defending a wholly partisan action

It’s hard to overstate how feckless and cynical this action is.

To begin with, obviously the Trump administration will be gone in a little over four weeks from now — that is, about the time that its penalty is due to be imposed.

Nor should it be lost on anyone that the Biden administration will surely reverse the action, especially because it runs counter to policies put in place under the Obama administration.

Second, the rule that Health and Human Services purports to challenge — and which was promulgated back in 2014 — is under review by a federal appeals court. For Health and Human Services to declare that California is conclusively violating federal law while the law’s application is before a three-judge federal panel is just wasteful posturing.

The agency’s action, moreover, is based on an executive order issued by Trump, the so-called “conscience” rule giving a broad range of religious and quasi-religious groups exemptions from government rules, was set aside and declared “unenforceable” by a federal judge in San Francisco last year. That decision is still in effect.

Despite all that, Roger Severino, who as director of the Health and Human Services Office for Civil Rights has been one of Trump’s leading antiabortion warriors, called the decision “major news that should not be controversial.”

Speaking at a news conference after the California announcement, Severino asserted that “regardless of who sits in my chair … conscience and religious freedom should no longer be a point of debate. It is not a partisan football.”

Right.

It must be mere coincidence that the Health and Human Services action comes just days after California Atty. Gen. Xavier Becerra, who has overseen the state’s defense against this and other encroachments by Trump of women’s healthcare rights, was named as President-elect Joe Biden’s choice for Health and Human Services Secretary.

As I’ve written, the antiabortion movement has already targeted Becerra’s nomination for defeat.

Nothing in the Health and Human Services announcement ties the $200-million penalty directly to abortion spending in California or explains how the agency arrived at the figure. The federal penalty won’t make much of a dent in the budget of state Medicaid, which is known in California as Medi-Cal, because the federal government contributes some $63 billion a year to the state program’s budget.

Trump’s efforts to expand the rights of religious groups and those claiming “moral” scruples against contraceptive and abortion services at the expense of women seeking reproductive health rights — the latter right enshrined in the state Constitution — have been consistently struck down by the courts.

“Women’s health is public health,” Gov. Gavin Newsom said Wednesday in response to the federal action. “It’s wrong that the Trump administration would threaten Californians’ health just to score cheap political points – and during a global pandemic. We will continue to stand up for reproductive health and push back against this extreme presidential overreach.”

Let’s take a quick look at the California rule and how it has been applied.

In 2014, state regulators informed seven health insurers that health plans they issued limiting or excluding coverage for termination of pregnancy violated a state law that had been in place since 1975. They were ordered to restore that coverage within 90 days.

Three religious groups filed complaints over that order with the Office for Civil Rights currently headed by Severino. They cited the Weldon Amendment, a 2004 provision of federal law that prohibits discrimination by state or local governments against any healthcare entity because the entity doesn’t provide, pay for, cover or refer for abortions.

In 2016, under the Obama administration, Health and Human Services determined that the California rule didn’t violate the Weldon Amendment because it didn’t discriminate against any entities protected by the amendment and allowed any insurer to request an exemption from the rule.

As it happened, only one insurer, Blue Cross of California, sought an exemption to allow it to sell a policy without abortion coverage — and received approval.

Nevertheless, earlier this year, Severino’s office notified the state that it was violating the Weldon Amendment and demanded it take “corrective action.”

Severino received a response Feb. 21, signed by Becerra, informing him crisply that the state already had been ruled in compliance with the amendment, that nothing had changed in its policy since 2014, and that “California will take no ‘corrective action’ in response” to Severino’s notice of violation.

That’s where things rested until Severino bestirred himself to try again. During his news conference, Severino repeatedly invoked the image of Catholic nuns being forced to pay for abortion coverage for other nuns. Obviously, however, nothing in the California rule requires anyone, nun or otherwise, to seek an abortion if she doesn’t want or need one.

So what’s the point the Trump team is really trying to make, other than shoring up its antiabortion bona-fides? There is none. This is just another act of scorched-earth vandalism aimed at human rights by a gang that is gradually realizing that its days are numbered.