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New US “abortion non-discrimination act” faces legal challenges

BMJ 2004; 330 doi: https://doi.org/10.1136/bmj.330.7481.9-a (Published 30 December 2004) Cite this as: BMJ 2004;330:9
  1. Janice Hopkins Tanne
  1. New York

The state of California and the National Family Planning and Reproductive Health Association are challenging the “abortion non-discrimination amendment” that a Congressman has attached to a federal funding bill.

The amendment allows doctors, hospitals, and insurance companies to refuse to provide, pay for, or give referrals for abortions—without penalty. It conflicts with an existing law, called Title X, that requires many health providers to inform pregnant women of all options, including abortion.

If a state tries to enforce state laws safeguarding a woman's right to abortion information and services, it might lose billions of dollars in federal funding.

Eve Gartner, senior staff attorney at Planned Parenthood, an organisation that favours women's right to choose abortion, said that it opposed the amendment as “terrible public health policy.”

California's state attorney general, Bill Lockyer, will file a lawsuit to block the amendment next week. He said the amendment would deny all funds to California provided by the federal funding bill if the state enforced state laws to safeguard women's constitutional rights to abortion. California's two senators, Barbara Boxer and Dianne Feinstein, and the House of Representatives' Democrat leader, Nancy Pelosi, also a Californian, had fought the amendment.

The National Family Planning Association is suing to prevent enforcement of the amendment. It represents 4000 clinics across the country that receive federal Title X funds for subsidised services to poor Americans.

Title X, passed in 1970, serves more than four million people a year. Title X does not pay for abortions, but clinics and healthcare providers that receive Title X funds must tell pregnant women that abortion is a choice. Title X is administered through state health departments. In 1999 it helped support 61% of all family planning agencies.

The amendment in question came from Dr Dave Weldon, a Republican Congressman from Florida. He attached it as a rider to the omnibus spending bill, which lumped together long overdue appropriations bills and includes $143bn (£73bn;€107bn) for the federal departments of Health and Human Services, Education, and Labor. These departments provide funds for many state programmes. The bill was passed after the election, and President Bush signed it on 8 December.

The Weldon amendment was originally proposed by the US Conference of Catholic Bishops. The amendment says that none of the funds provided by the omnibus spending bill will be made available to federal or state agencies or programmes that penalise healthcare entities that do not provide, pay for, or refer for abortions. Healthcare entities include doctors, other health professionals, hospitals, health plans run by large companies, health maintenance organisations, health insurance plans, “or any other kind of health care facility, organization, or plan.”

The National Family Planning and Reproductive Health Association says that any state regulation that requires a health provider to give abortion information under Title X could be considered discriminatory—discriminating against those who do not provide abortion information.

Judith DeSarno, president of the family planning association, said in a press release, “Let's be clear, no individual provider in this country is required to perform abortions against his or her will.” She called the amendment “an ill conceived solution in search of a problem that doesn't exist.”

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