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The running battle between religious conservatives and women seeking the right to full insurance coverage for reproductive health care has has opened a new front in California. The Brown administration has just decided to change its policy and require employers to provide comprehensive abortion coverage in plans established under the state's managed care programs.

Abortion foes threaten suit that may cut state's federal funds

Antiabortion groups are calling for legal action - and a possible cutoff of nearly $90 billion in federal funding to California - after Gov. Jerry Brown's administration told insurance companies doing business in the state Friday that their policies had to cover all abortions.

Brown's Department of Managed Health Care had previously approved insurance plans issued to Santa Clara and Loyola Marymount universities, and possibly other employers, allowing them to deny coverage for "elective" abortions, those not needed to protect a woman's life or health.

But the department reversed course Friday, at the urging of abortion-rights advocates and faculty members at the two schools, and sent letters to seven insurers saying abortion was a "basic health care service" under state law that must be included in all health plans.

Both universities issued statements saying they would follow the law, but they did not disavow future court action.

As I understand it California as a state that chose to establish its own health exchange has a more active role in the management of plans and policies than states in which Obamacare is being administered directly by federal HHS. They are not necessarily bound to follow all of the policies that HHS has established for the exchanges that they administer.

However, conservative groups are going outside of the Obamacare framework for a basis of a legal challenge to this new California policy. They are turning to a provision in federal law known as the Weldon Amendment.

"Federal law prevents California from mandating that a health insurance plan include abortion coverage," the Life Legal Defense Foundation, Alliance Defending Freedom and Cardinal Newman Society said in a letter to the state Department of Managed Health Care.

They cited the Weldon amendment, enacted by Congress each year for the last decade. It requires a state to forfeit all federal funds for health, education and labor if it "subjects any ... health care entity to discrimination" because the entity "does not provide, pay for, provide coverage of, or refer for abortions."

The federal government has never tried to enforce the amendment against a state. California challenged the amendment in court in 2005, saying it could be used to punish the state for mandating emergency abortions at Catholic hospitals, but a federal judge dismissed the suit as premature because the state had not been threatened with a funding cutoff.

One of California's leading abortion-rights lawyers said the state is in little danger of losing funds because the Weldon amendment doesn't apply to its actions.

The amendment prohibits discrimination only against those who won't "provide coverage" for abortions - in this case, employers, like the two universities, said Margaret Crosby, an American Civil Liberties Union attorney in San Francisco.

If this should land in the lap of the current SCOTUS, I wouldn't be so totally confident of the outcome. However, I am very pleased to see that the state I live in has been persuaded to take a stronger stand on abortion rights.

Originally posted to Richard Lyon on Mon Aug 25, 2014 at 09:48 AM PDT.

Also republished by California politics.

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