A three-judge panel of the Ninth Circuit U.S. Court of Appeals in California on Friday ruled that health care groups representing providers who oppose abortion rights can join the Bush administration in a lawsuit to defend a provision that blocks federal funding for state, local or federal government agencies that discriminate against health care workers or facilities that do not provide abortion services, Reuters reports (Reuters, 6/9). The Weldon Amendment -- part of a $388 billion spending measure (HR 4818) signed by President Bush in December 2004 -- prohibits federal, state and local agencies from requiring doctors, hospitals, health plans or other health care entities to provide abortion services or referrals to a different provider. The provision also bans the agencies from taking action against providers and insurers who do not provide or cover abortion services and extends to health care providers nationwide the same "conscience protection" currently given to medical students who do not want to undergo abortion training.

Case History
California Attorney General Bill Lockyer (D) and state school Superintendent Jack O'Connell in January 2005 filed suit challenging the provision. The suit alleges that the provision violates Roe v. Wade -- the 1973 U.S. Supreme Court decision that effectively struck down state abortion bans -- because it does not specify exceptions in cases of medical emergency. The suit also states that the provision will block the state from enforcing two of its own laws. One law states that medical emergencies are an exception to health care providers' right to refuse to participate in abortion services. The second law requires all health care facilities in the state to provide emergency services, including abortion, to anyone who requests them or to help individuals obtain the services elsewhere. The suit claims that the state could lose about $49 billion in federal funds if it fails to comply with the federal law. Department of Justice officials in June 2005 had sought to dismiss the lawsuit, saying that the provision could not be challenged because it has not yet been enforced in the state. However, U.S. District Judge Jeffrey White in San Francisco denied a motion by the federal government to dismiss the case, ruling that the state has "sufficiently alleged an injury to California's sovereign interest in the continued enforceability of its own statutes" to proceed with the suit (Kaiser Daily Women's Health Policy Report, 6/29/05).

Ruling, Reaction
The three-judge panel on Friday ruled that Alliance for Catholic Health Care and the Medical Groups, both of which represent health organizations that oppose abortion rights, could participate in the lawsuit because their providers might have to choose between their moral beliefs and relinquishing their medical licenses if the provision is ruled unconstitutional, the Jurist reports (Manges Jones, Jurist, 6/10). Judge Alex Kozinski in the panel's opinion wrote, "Congress passed the Weldon Amendment precisely to keep doctors who have moral qualms about performing abortions from being put to the hard choice of acting in conformity with their beliefs or risking imprisonment or loss of professional livelihood." Kozinski also wrote, "Should California prevail in this lawsuit, it will be free to prosecute health care providers for failure to provide emergency abortion services, however it defines that phrase." Lockyer spokesperson Tom Dresslar said, "Regardless of who is to intervene in this case, the Weldon Amendment remains an unconstitutional infringement of California's sovereignty as well as a threat to the reproductive health care rights of the state's women." Lawyers for the health care groups could not be reached for comment, according to Reuters (Reuters, 6/9).