Attorney General Lockyer Files Court Challenge To Block Federal Attack On Women's Health Care Rights

Education Chief O’Connell Also Opposes Denial Of Funds If State Protects Abortion Rights

Tuesday, January 25, 2005
Contact: (415) 703-5837,

(SAN FRANCISCO) – Attorney General Bill Lockyer and Superintendent of Public Instruction Jack O’Connell today filed a lawsuit to block the “Weldon amendment,” a federal spending restriction that could deny $49 billion in federal funds to California if the state enforces women’s constitutional right to emergency abortion care.

“The Weldon amendment tramples on women’s constitutional rights, state sovereignty and the interests of California taxpayers,” said Lockyer. “Equality for women is illusory unless they remain free to make their own health care decisions. With the Weldon amendment, President Bush and Congress are denying women that freedom. And the danger doesn’t end there. The funding restrictions could damage the state’s ability to improve our schools, make our children safer, aid jobless workers, collect child support from deadbeat parents, and provide child care to poor people trying to get on their feet.”

Said O’Connell: “The Weldon amendment threatens to hold funding for schools and other important government services hostage in an effort to force states to restrict women’s reproductive health options. This unfair provision of federal law must not be allowed to stand. California law rightly protects women’s reproductive freedom. Our schools and our students should not be penalized because of it.”

The complaint, filed in U.S. District Court for the Northern District of California, alleges the Weldon amendment exceeds Congress’ power under the Spending Clause of the U.S. Constitution, infringes on state sovereignty in violation of the 10th Amendment to the U.S. Constitution and violates women’s constitutional right to emergency abortion care. The complaint asks the court either to strike down the amendment and permanently prohibit its enforcement, or declare that enforcement of state laws requiring provision of emergency medical services, including abortion care, does not violate the amendment. The defendants include: the U.S. Department of Labor and Secretary Elaine Chao; the U.S. Department of Health and Human Services and Secretary Tommy Thompson; and the U.S. Department of Education and Secretary Margaret Spellings.

The spending restriction at issue resides deep inside an appropriations act that provides states at least $143 billion in federal funds for labor, health and human services, education and related programs. California state agencies, including the Department of Education, expect to receive about $49 billion in federal dollars under the act, according to the complaint. The Weldon amendment jeopardizes California’s receipt of all these funds.

The amendment prohibits disbursement of any funds made available under the act to any state or local government that “subjects any institutional or individual health care (provider) to discrimination on the basis that the health care (provider) does not provide, pay for, provide coverage of, or refer for abortions.”

“Congress cannot constitutionally circumvent a woman’s fundamental right to reproductive freedom through the Weldon amendment’s draconian funding restrictions,” the complaint states. “Because this coercive federal statute is wholly inconsistent with our federal system of government, this court should strike it down.” Importantly, the amendment contains no explicit exception for providing medically necessary abortions in emergency situations. As the complaint notes, women have had a constitutional right to access such care at least since the U.S. Supreme Court’s historic 1973 ruling in Roe v. Wade, 410 U.S. 113.

The enforcement of two state laws, in particular, could be crippled by the Weldon amendment, according to the complaint. The first specifies the statutorily-guaranteed right of health care providers to not participate in abortions if they have moral, ethical or religious objections does not apply in medical emergency situations. The second covers all emergency services, including abortion care, and requires health care facilities either to provide such services to anyone requesting them, or help people who request such services to obtain them.

The complaint alleges enforcement of these laws could be construed to constitute “discrimination” under the Weldon amendment. If so, enforcement of the statutes would threaten California’s receipt of some $49 billion in federal funds for vital health services, and labor and education programs unrelated to the abortion care targeted by the amendment. Labor and education programs that could lose all or a substantial portion of their funding, according to the complaint, include programs that:

Provide unemployment benefits to millions of jobless workers; help connect employers with job seekers; track down parents delinquent in child support payments and identify those parents’ assets; provide child care to hundreds of thousands of low-income parents seeking to better their lives through employment, training and education; improve our schools by providing training and recruiting assistance to enhance the quality of teachers and principals; and help prevent violence and drug abuse in schools.

In alleging the Weldon amendment exceeds Congress’ power under the Spending Clause, the complaint makes four main arguments. First, the amendment is impermissibly vague because it fails to define “discrimination,” depriving states of adequate notice of conduct that constitutes a violation. Second, the funding restriction has nothing to do with the federal government’s interest in various labor and education programs that receive money under the act. Third, the restriction is unconstitutionally coercive because it leaves states no choice but to comply with the abortion-related condition or risk losing all funds provided by the act. Such coercion infringes on state sovereignty in violation of the 10th Amendment, the complaint alleges. Finally, according to the complaint, the Weldon amendment violates the Spending Clause because it induces the state and public officials to violate women’s constitutional right to medically necessary abortion care.

Aside from the Spending Clause arguments, the complaint alleges the Weldon amendment, by placing “substantial obstacles in the path of women” seeking emergency abortions, violates women’s rights to privacy, life and liberty under the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

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