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SMYTH: ‘No discrimination of abortion rights’ a dangerous policy

State provision could become federal law

- - Saturday, February 9, 2013

New York could soon shut down Catholic and other health care providers for not offering or referring for abortions. Democratic Gov. Andrew Cuomo, with enough support in the New York state legislature, could sign a reproductive health act (RHA) this year. Among other actions, the act would declare that New York “shall not discriminate against the exercise of…[abortion] rights…in the regulation or provision of benefits, facilities, services, or information.”

The New York State Catholic Conference argues this “no discrimination of abortion rights” provision could “permit state regulators…to require support for abortion from any agency or institution licensed or funded by the state.” As the state grants medical licenses, New York could deny licenses to -- and thus shut down -- such institutions as Catholic and other hospitals or clinics that refuse to support abortion. New York could also deny these institutions Medicaid payments and other funding, which some of these institutions need for financial stability. 

Other provisions in New York’s RHA would establish abortion on demand in New York. For instance, the RHA would permit abortions until birth, allow public funding of abortion and repeal the requirement of parental notifications for minors’ abortions.

New York didn’t invent reproductive health acts. The state of Washington and six other states have passed RHAs that have such allowances as late-term abortions and public funding of abortions. However, to date only Washington has passed a “no discrimination of abortion rights” provision. Also, since 1989 members of Congress have attempted to pass versions of a freedom of choice act (FOCA), which have contained many of the same provisions as New York’s RHA. 

For instance, California Sen. Barbara Boxer’s Freedom of Choice Act of 2004, which died in committee, permitted late-term abortions. Also, this act declared, “A government [the federal government or state and local governments] may not…discriminate against the exercise of…[abortion] rights…in the regulation or provision of benefits, facilities, services, or information.”

If enough states pass reproductive health acts similar to New York’s, there could be momentum for the U.S. Congress to pass a freedom of choice act. However, passing a freedom of choice act has proven difficult. It seems more likely the U.S. Congress would simply pass a “no discrimination of abortion rights” law using Ms. Boxer’s above provision from 2004 or a similar provision. Congress could even amend Obamacare by replacing its provisions allowing health care plans to have “Voluntary Choice of Coverage of Abortion Services” with a “no discrimination of abortion rights” mandate. Such a mandate would leave America with only health care providers who offer or refer for abortions.

It is not too far-fetched to say New York’s “no discrimination of abortion rights” provision could eventually become national policy. Just consider the U.S. Department of Health and Human Services’ (HHS) contraception/abortifacient mandate. Despite the so-called “accommodation” for religious liberty passed in early February, HHS is forcing Catholic and other religious employers to fund or help provide their employees’ contraception and abortifacients through health insurance plans.

In 1996, West Virginia became the first state to mandate that health insurance must include contraceptives. By 2010, 25 other states, such as Maryland and Colorado, passed similar contraception mandates. When HHS Secretary Kathleen Sebelius announced the HHS contraception/abortifacient mandate in January 2012, she said, “This rule is consistent with the laws in a majority of states which already require contraception coverage in health plans…” 

Pro-lifers nationwide must recognize the threat to life and liberty in New York’s “no discrimination of abortion rights” provision. Groups such as New Yorkers for Life have been working to overturn the act, but there is much more to be done. Pro-lifers must oppose New York’s reproductive health act and, at the very least, defeat the “no discrimination of abortion rights” provision. If not, this provision could spread to other states and eventually become national policy.

Daniel Smyth is co-founder and editor of