California Reverses Ruling on Abortion Rights at Catholic Universities

In a major victory for faculty and staff and for reproductive rights more generally, the California Department of Managed Health Care (DMHC) has reversed a previous decision to allow two Catholic universities to eliminate coverage of most abortions for employees, declaring that state law requires health insurance plans to cover all abortions.  The state had previously allowed insurance companies to offer plans to Santa Clara and Loyola Marymount universities that denied coverage for so-called “elective” abortions, and allowed it only for abortions needed to save a woman’s life or prevent serious health damage.

“Abortion is a basic health care service,” DMHC director Michelle Rouillard said in a letter sent Friday to insurers for both universities.  She said the exclusions violate the state’s 1975 Reproductive Privacy Act (RPA) that requires group health plans to cover all basic services, defined by the law as those that are “medically necessary.”  In addition, the letter said, “the California Constitution prohibits health plans from discriminating against women who choose to terminate a pregnancy. Thus, all health plans must treat maternity services and legal abortion neutrally.”  Rouillard told the insurance companies to review all health plans, including those the department had previously approved, to make sure they comply with the law.

Loyola Marymount, in Los Angeles, implemented its policy in January over faculty and staff protests.   The university permitted employees to purchase abortion coverage separately and at additional cost through a private administrator.  At Santa Clara, located just north of San Jose in the San Francisco Bay Area, the policy provoked widespread opposition among faculty and other employees.  With strong support from the campus chapter of the AAUP, faculty convened a special session of the faculty senate, apparently for the first time in the 150-year history of the school, to reaffirm objections to the University’s new policy effort.  The faculty also objected to the failure of the University to abide by its commitment to shared governance in attempting the policy change.  A campus-wide vote of the faculty overwhelmingly approved this objection.  The abortion issue soon snowballed into a broader crisis of shared governance that has since absorbed many faculty and has spurred many to join the AAUP.  In 1999, Santa Clara’s trustees and then-president won AAUP’s Ralph S. Brown Award for Shared Governance, but since then faculty leaders claim the system has seriously eroded.

Last October, Stephen F. Diamond, an associate professor of law at Santa Clara University and an AAUP chapter leader, cut ties with the Jesuit institution’s Markkula Center for Applied Ethics, saying he believed the center and its director had taken an inappropriate role in the university’s decision.  In a blog post reporting the latest DMHC ruling Diamond provides the essential legal background:

A few years after a resounding legal defeat at the California Supreme Court in 2004 (in an attempt to overturn the Women’s Contraception Equity Act), the Catholic Church apparently used its influence at Loyola Marymount University to get the University and its insurers to engineer in secret approval by the DMHC of an HMO product that would have prevented coverage of what Anthem [Blue Cross, Loyola Marymount’s insurer] called “elective” abortions as well as a wide variety of birth control methods. This restriction was approved in a hidden administrative process inside the DMHC, which has regulatory authority over the HMO industry in California, during the Schwarzenegger governorship. For more detail on that effort see my earlier post here.

The DMHC records I obtained under a Public Records Act request suggest that that 2008 decision was made on the basis of a relatively thin legal analysis with no reference at all to the Constitution or the RPA. In any case, Anthem did not in fact sell any HMO product based on that 2008 interpretation by the DMHC. Only in 2013 did both Loyola Marymount University and Santa Clara University, both Jesuit affiliated schools, announce their intent to buy health care plans from Kaiser and Anthem that would exclude some abortion coverage. Their announcement of this intention included a new categorization of abortions into boxes they called “medically necessary” and “elective.” The new plans would have eliminated whatever was considered an “elective” as opposed to a “medically necessary” abortion. Tellingly, neither the Universities nor the insurers ever clearly defined these new categories and provided no legal basis for these distinctions.

Diamond continues:

[I]n the face of continued faculty and staff efforts to block the policy change, the trustees of Santa Clara publicly backed up the Administration and even went so far as to suggest that they were morally obligated to stop coverage for abortion because women faculty and staff might be using abortion to engage in “gender selection” of their children. This claim outraged many on the campus because it was not only facially absurd and not backed up by any serious research (in fact, quite the opposite, see here and here) but a racial slur aimed at Asian American communities. Unfortunately, this kind of charge has been used more widely of late by many in the anti-abortion movement, perhaps desperate to defend their agenda.

Several faculty members at both SCU and LMU began a concerted effort last fall to raise objections to the proposed new restrictions to the State of California. Working closely with several advocacy groups including Planned Parenthood Affiliates of California, the ACLU of Northern California, the Trust Women Silver Ribbon Campaign and the National Health Law Program, extensive discussions with the DMHC took place.

Finally this past week the DMHC agreed unequivocally that the proposal by the University administrations at LMU and SCU had no basis in California law.

In a blog post, Maggie Crosby, a staff attorney with the ACLU of Northern California, said the DMHC decision “contains three important concepts that have all but disappeared with the erosion of abortion rights.”  These are: abortion is basic health care; abortion is a constitutionally protected personal decision; restricting abortion coverage is discrimination.

The “restrictive definition of ‘medically necessary’ abortions is a relic of the era when abortion was a crime,” Crosby continues.  “Approval to market such restrictive health plans in California was an error and an aberration in a state with a proud history of protecting reproductive health.  The long term effect of today’s decision is to ensure that as more California residents have health insurance, access to abortion will remain a reality. The Department of Managed Health Care deserves applause because in protecting abortion access, it conveys simple truths that have become obscured in the political effort to stigmatize abortion: childbearing is a personal decision, abortion is basic health care, and control of reproduction is critical to women’s autonomy.  This is what it means to take seriously the principle that access to abortion is a fundamental right.”

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