- The Washington Times - Thursday, December 9, 2004

California’s attorney general will try to reverse a key victory for the pro-life lobby by suing to overturn a recently passed federal law designed to protect health care providers from retribution if they refuse to support abortion.

“This is an unacceptable attack on women’s rights and state sovereignty, and a backdoor attempt to overturn Roe v. Wade,” Bill Lockyer said Wednesday. “With this provision, what the federal government says to California is this: ‘If you want back your own taxpayer dollars … 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.”

The provision — which was sponsored by Rep. Dave Weldon, Florida Republican, and tacked onto the $388 billion spending bill that Congress recently passed — expands a federal law stipulating that a doctor can opt out of abortion training. It will deny federal funds to any federal agency and state or local government that discriminates against a health care entity — such as hospitals or insurance companies — because it doesn’t provide, pay for or support abortions.

Mr. Lockyer plans to file a lawsuit in federal district court within about two to three weeks, a spokesman said.

He and other opponents of the new provision say it’s an unfair infringement on state sovereignty because it forces states with pro-choice laws to either stop enforcing those laws or risk losing billions of federal dollars.

Mr. Lockyer said California in particular could lose precious federal dollars if it tries to enact a state law that prohibits hospitals from refusing to perform abortions for women in emergency or life-threatening situations.

But supporters say the provision is a defensive move that is needed to protect health care providers who have been coerced into supporting abortion or punished because they don’t.

The Alaska Supreme Court, for example, agreed with a pro-choice group that a private community hospital must perform late-term abortions, even though the procedure was against hospital policy. New Mexico denied a lease application for a community hospital that didn’t perform abortions.

Douglas Johnson, legislative director of the National Right to Life Committee, said these are part of an unfair “national campaign” backed by groups such as the American Civil Liberties Union.

“We don’t believe there is a constitutional right to force health care providers to participate in abortion,” Mr. Johnson said.

He and other supporters of the provision admit that it “infringes” on states by forcing them not to discriminate or lose federal dollars. But they said these conundrums happen all the time with Congress, and courts have agreed that it’s perfectly allowable.

“The federal government has a right to attach strings to its grants,” said Cathy Ruse, spokeswoman for the U.S. Conference of Catholic Bishops, a group that lobbied for the provision.

Mr. Lockyer admits that courts have been reluctant to strike down restrictions on states’ receipt of federal funds. But he said the Weldon provision’s “sweeping scope goes far beyond restrictions previously considered by the courts.”

He notes that it will deny states a wide range of federal funds that have nothing to do with abortion. And he argues that it’s unconstitutional because it punishes states that are trying to protect women’s constitutional right to have an abortion.

Mr. Johnson disagreed.

The legal effort is simply “grandstanding by a pro-abortion politician to get points with pro-abortion pressure groups,” he said.

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