Attorney General Lockyer Readies Court Challenge to Fight Federal Attack on Women's Right to Choose

Boxer, Feinstein and Pelosi Also Oppose Move To Block Funds If State Enforces Abortion Laws

Wednesday, December 8, 2004
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(SACRAMENTO) – Attorney General Bill Lockyer today announced he will file a lawsuit to block the Weldon amendment, a federal spending bill provision that could deny federal funds to California if it enforces state laws to safeguard women's constitutional right to abortion care.

"This is an unacceptable attack on women's rights and state sovereignty, and a back-door attempt to overturn Roe v. Wade," said Lockyer. "With this provision, what the federal government says to California is this: If you want back your own taxpayer dollars for important programs that serve all the people of your state, you first have to refuse to protect the constitutional rights of the women who live in your state. That is wrong, it is unlawful, and I will fight to make sure it doesn't happen."

Lockyer's effort continues a fight against the Weldon amendment waged by key California lawmakers, including U.S. Senators Barbara Boxer and Dianne Feinstein, and House Democratic Leader Nancy Pelosi.

"This lawsuit confirms what many of us have said about the Weldon amendment that was attached to a massive spending bill," said Boxer. "The amendment overrides the ability of states to protect the lives and the privacy of women. I am very pleased that my state is taking the lead with me in a major effort to reverse the Weldon amendment."

Feinstein said, "This is a back-door attempt to chip away at our Constitutional right to privacy. It has a disproportionate impact on low-income women and women in rural areas. And it should be stricken from law. I hope that the Senate will invalidate this provision when it votes on it early next year. If the Senate does not overturn this provision, I believe that all legal remedies should be explored to ensure that the provision does not harm the state's ability to provide women with adequate care."

Said Pelosi: "The Weldon amendment is an unconscionable display of ideology over health care. Holding federal funds for health care and other critical services hostage because reproductive health services are offered is an extraordinary and unacceptable attack on women's rights. Democrats fought hard against the Weldon amendment in Congress, and Attorney General Lockyer will continue the fight in court. Women in California and across the country deserve nothing less."

The spending restriction at issue is tucked into an appropriations act that provides states more than $143 billion in federal aid for labor, health and human services, education and related programs.

Named after its sponsor, Republican Congressman David Weldon of Florida, the amendment specifies no funds made available by the act can be provided to any federal agency, or any state or local government, if the agency or government discriminates against any health care provider because they refuse to "provide, pay for, provide coverage of, or refer for abortions."

Under the amendment, state and local governments could face the complete loss of all federal dollars for all programs funded by the appropriations act if any government entity protects women's health by enforcing relevant state or local laws. While the amendment affects all states, the stakes are perhaps greatest in California, which not only has some of the country's most progressive reproductive health care laws, but also a right to privacy embedded in the state Constitution.

California could be slapped with the amendment's severe financial penalties, for example, if it tried to enforce state law that prohibits hospitals from refusing to perform abortions for women in emergency or life-threatening situations. Lockyer's office is conducting a review to determine which other state laws and regulations could be affected by the amendment.

The appropriations act containing the Weldon amendment has won final approval from Congress and awaits an expected signature from President Bush. If Bush signs the spending bill, Lockyer will file his lawsuit in federal court, likely within weeks of the President's action. Lockyer has assigned a team of lawyers to craft the complaint.

The lawsuit will ask the court to declare the Weldon amendment invalid and to prohibit its enforcement. Specifically, the complaint will allege the amendment's financial penalties are so coercive that they impermissibly infringe on state sovereignty in violation of the 10th Amendment to the U.S. Constitution. The lawsuit also will allege the amendment exceeds Congress' spending powers.

In prior cases involving spending conditions, courts have deferred to Congress and been reluctant to strike down restrictions on states' receipt of federal funds. But the Weldon amendment's penalty is more coercive than those previously considered by the courts because, unlike the others, it punishes violations by denying all affected federal funds to the entire state or local government. The amendment also fails to pass legal muster because the federal government's interest in the health care programs affected by the abortion condition have nothing to do with its interest in labor, education and other programs that could lose funding based on violations.

Additionally, by requiring the state to refuse to protect women's constitutional rights in order to avoid stiff fiscal punishment, the amendment runs afoul of the Constitution and exceeds Congress' spending power. Lockyer noted the U.S. Supreme Court has held for three decades that restrictions on abortion rights do not withstand scrutiny unless they contain an exception for cases in which pregnancy endangers the mother's life or health. The Weldon amendment does not have such an exception.

"This will not be a cakewalk," said Lockyer. "But the Weldon amendment's sweeping scope goes far beyond restrictions previously considered by the courts. And we believe even the most deferential court will find the provision exceeds federal spending power and violates the 10th Amendment."

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