News Law and Policy

California Conservatives Keep Fighting Insurance Coverage for Abortions

Jessica Mason Pieklo

Lawyers have filed a second legal challenge to a California requirement that all insurance plans in the state provide coverage for abortion care.

Attorneys from the conservative legal advocacy organization Alliance Defending Freedom (ADF) this month filed a lawsuit in California state court charging that the state’s health department is unlawfully forcing churches to pay for elective abortion coverage in health insurance plans.

ADF filed the lawsuit on behalf of Skyline Wesleyan Church in La Mesa. Skyline Wesleyan’s pastor, Jim Garlow, is a prominent conservative activist and was involved in the fight to pass Proposition 8, California’s ban on same-sex marriages that was later overturned, which helped pave the way for marriage equality nationwide.

As alleged in the complaint, the California Department of Managed Health Care (DMHC), and its director, Michelle Rouillard, issued a mandate in August 2014 requiring group health insurance plans issued in California to “provide coverage for all legal abortions, including voluntary and elective ones.”

DMHC based this requirement on its interpretation of the Knox-Keene Health Care Service Plan Act of 1975, a California law that requires employer health plans cover “basic health-care services.”

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The plaintiffs allege that DMHC’s interpretation of the law violates both the California and U.S. Constitution, as well as the Weldon Amendment, which prohibits states that receive federal family planning funding from discriminating against health-care plans based on whether they cover abortion care.

The lawsuit is nearly identical to one ADF filed in federal court in October on behalf of three other California churches. The court is considering a request by attorneys for the state of California to dismiss that lawsuit.

Skyline Wesleyan’s lawsuit is the latest volley by conservatives challenging abortion coverage in the state. In 2014, ADF and Life Legal Defense Foundation filed formal complaints with the U.S. Department of Health and Human Services against DMHC, challenging the coverage requirement. Those complaints followed a complaint filed directly with DMHC.

“Churches should not be forced to pay for the killing of innocent human life,” Erik Stanley, ADF senior counsel, said in a statement when the lawsuit was filed. “The government has no right to demand that church health insurance plans include coverage for elective abortions.”

DMHC and Rouillard have not yet responded to this latest lawsuit.


Dignity Health Sued Over Refusal to Offer Insurance Coverage for Transition-Related Care

Imani Gandy

“I was shocked when Dignity, which is supposed to be in the business of healing and holds itself out to the public as a bastion of ‘human kindness,’ told me they would not authorize insurance coverage for my doctor-prescribed treatment,” Joe Robinson said in a statement released by his attorneys at the American Civil Liberties Union (ACLU).

Joe Robinson, a transgender man and operating room nurse at a Dignity Health medical center in Arizona, has alleged in a lawsuit filed Monday that his employer’s insurance policy of depriving coverage for gender dysphoria is discrimination on the basis of sex, in violation of Title VII of the 1964 Civil Rights Act.

Because Dignity Health, which operates the fifth-largest health-care system in the country, excludes insurance coverage for gender dysphoria—or “sex transformation surgery,” as the insurance policy states—Robinson has borne the cost of his transition treatment. This included hormonal therapy and a double mastectomy. According to Robinson’s complaint, he requested coverage for phalloplasty, but his claim was denied; he says he cannot afford to pay for that surgery out of pocket.

“I was shocked when Dignity, which is supposed to be in the business of healing and holds itself out to the public as a bastion of ‘human kindness,’ told me they would not authorize insurance coverage for my doctor-prescribed treatment,” Robinson said in a statement released by his attorneys at the American Civil Liberties Union (ACLU).

“All I want is the same health benefits other, non-transgender Dignity employees receive, which is coverage for medically necessary treatments,” he continued.

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On May 16, the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing workplace anti-discrimination laws, determined that Robinson could proceed with a lawsuit against Dignity Health. That lawsuit, which was filed in federal court in California, alleges that Dignity Health’s policy singles out transgender employees employees for unequal treatment.

In response to Robinson’s original EEOC complaint, Dignity Health claimed that its policy was not discriminatory because “health benefits under the Dignity plan are not provided for any personality disorders, including sexual/gender identity disorders and behavior and impulse control disorders.”

Robinson counters that the medical community does not consider gender dysphoria to be a “personality disorder.” His complaint notes that insurance companies have previously excluded coverage for transition-related care based on the erroneous assumption that such treatments were cosmetic and experimental—assumptions, he says, that have no basis in medical science today.

The World Professional Association for Transgender Health has published standards of care for gender dysphoria that have been recognized as authoritative by leading medical organizations, the U.S. Department of Health and Human Services, and federal courts, according to the complaint. Under those standards, it reads, medically necessary treatment for gender dysphoria “may include hormone therapy, surgery (sometimes called ‘sex reassignment surgery’) and other medical services that align individuals’ bodies with their gender identities.”

In September of last year, Robinson’s fiancée, who also works at Dignity Health, emailed Dignity Health’s CEO, Lloyd Dean, to ask him to remove the “sex transformation” exclusion from the company’s health plan so that Robinson could receive coverage for his medically necessary care, according to the complaint.

Nearly two months later, the complaint continues, Dignity Health’s chief human resources officer informed Robinson’s fiancée that Dignity Health had found no evidence of discriminatory practice in the administration of its health plan.

Robinson’s lawsuit comes at a crucial time in the legal battle for transgender rights. The primary focus of that battle has been on bathrooms, with states and school boards across the country rushing to propose discriminatory legislation that prohibits transgender people from using the bathroom that aligns with their gender identity.

Eleven states and state officials in late May filed a joint lawsuit challenging the Obama administration’s “Dear Colleague” letter sent to public schools nationwide, arguing that the letter, which says Title VII and related statutes protect transgender people from discrimination under the federal definition of “sex,” is beyond the scope of the administration’s authority.

North Carolina, meanwhile, is embroiled in a pair of lawsuits with the Department of Justice over HB 2, the recently enacted legislation that forces transgender North Carolinians to use the bathroom that does not align with their gender identity in public buildings and schools. Gov. Pat McCrory (R) sued the Obama administration for its “radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered [sic] state employees.”

Also in North Carolina, Joaquín Carcano has sued the state, alleging that HB 2 discriminates against him and all transgender people on the basis of sex in violation of Title VII and Title IX of the U.S. Education Amendments of 1972.

Robinson’s attorneys see his lawsuit as complementing the ongoing lawsuits regarding bathroom discrimination.

“Transgender people continue to face discrimination in a wide array of contexts, including employment, housing, education, healthcare and more,” ACLU staff attorney Joshua Block wrote to Rewire in an email. “In each of these contexts, as courts are recognizing that discrimination against transgender people is discrimination on the basis of ‘sex,’ transgender people are finally able to fight this discrimination as a violation of our civil rights laws.”

News Health Systems

Nearly 9,000 Rhode Islanders Lose Abortion Coverage Thanks to Democratic Governor

Imani Gandy

Thousands of Rhode Islanders have lost comprehensive abortion coverage through their insurance plans, thanks to a budget bill signed by Democratic Gov. Gina Raimondo in June—and some of them may not be aware of the change.

Nearly 9,000 Rhode Islanders have lost comprehensive abortion coverage through their insurance plans, thanks to a budget bill signed in June by Democratic Gov. Gina Raimondo—and some of them may not be aware of the change.

Article 18 of the 2016 budget appropriations bill requires health insurers that offer plans on Rhode Island’s health insurance exchange to also offer plans that exclude coverage for elective abortions.

As of November 7, according to a press release issued by Rhode Island’s health insurance exchange, HealthSource RI, 30,680 individuals had signed up for coverage through the exchange for plan year 2016. Almost all of those people are enrollees whose plans were automatically renewed for next year through a common process called “mapping,” by which HealthSource RI either keeps enrollees in their same health plan, or switches them to a comparable one.

Many of these “comparable” plans offer only minimal coverage for abortion—in cases of rape, incest, or if the mother’s life is in danger—as required by law. 

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Close to 9,000 HealthSource RI customers were automatically re-enrolled in plans that exclude abortion coverage, according to Rhode Island Public Radio.

These customers have until December 23 to switch plans. If they don’t, they may not become aware that their plans do not cover elective abortions until they need one.

Customers who lost abortion coverage will be notified by letter, according to Maria Tocco, spokeswoman for HealthSource RI. “We are taking steps to ensure that all customers are being adequately notified,” Tocco told RIPR. Whether or not customers receive such notification remains to be seen.

The provision in the appropriations bill that led to this change represents the first anti-choice legislation passed in Rhode Island in more than 15 years, according to the ACLU of Rhode Island. And it happened with the approval of a Democratic governor who had been widely supported by two pro-choice political action committees, Planned Parenthood Votes! Rhode Island and EMILY’s List.

The new provision allows non-religious employers that offer insurance plans from the exchange to their employees to select a plan from that excludes abortion coverage. Employees of non-religious organizations will still have access to plans that include abortion coverage, but they must make their employer aware that they want such a plan, and they must pay for the abortion coverage out-of-pocket.

Abortion rights activists have pointed out that there are problems with the law. First, it essentially allows employers to choose the level of reproductive health care their employees may obtain. 

Second, the law may open up employees to discrimination. Because an employee who wants a health insurance plan that covers abortion must inform their employer, there’s nothing to stop employers from terminating those workers on the basis of their reproductive health-care choices. “Opting out of the employer’s health plan may serve as a signal to employers that the employee is pro-choice,” wrote Steve Ahlquist at the progressive political blog RIFuture. “This may have an effect on a woman’s ability to secure raises, promotions, or other workplace benefits if an employer chooses to act on this assumption in a biased or bigoted manner.”

The new law was the result of a settlement in Doe v. Burwell, a suit filed by anti-choice advocates at Alliance Defending Freedom (ADF) on behalf of a plaintiff who chose to remain anonymous due to his HIV-positive status, according to the complaint.

In Doe v. Burwell, John Doe sued HealthSource RI and the Obama administration, alleging that Rhode Island’s failure to offer health insurance plans that exclude coverage for abortion violated his religious freedom rights under the state and federal constitutions, as well as the state and federal Religious Freedom Restoration Acts.

With the passage of the Affordable Care Act in 2010, and the subsequent establishment of the health insurance exchanges, abortion has remained a sticky issue in the states. Abortion foes have objected that individuals should not be forced to pay into health insurance plans that cover the procedure. In order to appease them, federal law mandates that by 2017, every state that has set up an insurance marketplace under the ACA must offer at least one plan that excludes abortion coverage except in cases of rape, incest, or when the mother’s life is in danger.

For John Doe, however, 2017 wasn’t soon enough.

In his lawsuit filed in January of this year, Doe alleged that his religious beliefs preclude him from contributing to a health insurance plan that includes abortion coverage. He further alleged that because of his HIV status, he is in critical need of health insurance and could not wait until 2017 to buy into a plan that excluded coverage for abortion.

In response to the lawsuit, the state sprang into action.

Rhode Island enrolled Doe in a special plan that excluded coverage for abortion. The state also paid Doe’s monthly premiums for the period of time during which he would have purchased a health insurance plan if not for the fact that by doing so, he would be contributing money to plans that offer abortion coverage thus violating his religious convictions. The state also agreed to dismiss the hefty fines Doe would have been required to pay under Obamacare’s hotly contested individual mandate provision since he failed to purchase health insurance coverage during the enrollment period. (In 2012, the U.S. Supreme Court upheld the ACA’s individual mandate provision as constitutional.) 

In addition, Rhode Island moved quickly to make sure that in 2016, one year before the federal deadline, a health insurance plan excluding elective abortion coverage would be offered at each of the three “metal tier” levels of coverage—bronze, silver, and gold—that HealthSource RI offers. This requirement goes beyond the mandate under the ACA that a state need offer only one insurance plan excluding coverage for elective abortion.

After Rhode Island agreed to accommodate Doe’s moral and religious objection to abortion, ADF and Doe withdrew their lawsuit. Ten days later, Raimondo added language restricting access to abortion coverage to Rhode Island’s proposed budget. Shortly after that, in June, Raimondo signed the budget deal into law.

Pro-choice advocates have argued that Raimondo’s actions in this case conflict with her previous statements on reproductive rights. Raimondo once said that women are “smart enough” to make their own health care decisions without interference from government or their employer, according to the Providence Journal. But, as Ahlquist pointed out, “[l]aws that allow employers to make unilateral decisions about a worker’s reproductive healthcare options cut against candidate Raimondo’s claim.”

“[T]hose who supported Gina Raimondo’s bid for Governor of Rhode Island may want to seriously reconsider their support,” Ahlquist wrote.