Background: A campaign is underway to force Catholic hospitals and other health care institutions to perform or promote abortion. The Abortion Non-Discrimination Act (ANDA) clarifies and strengthens conscience protection language found in current federal law (42 U.S.C. 238n). It expands the definition of the term “health care entity” and extends protection to entities refusing to provide coverage of, or pay for, abortion. In 2002, ANDA passed the House but languished in the Senate. In 2004, a comparable measure, the Hyde/Weldon Conscience Protection Amendment, was passed by the House as part of the Fiscal Year 2005 Labor/Health and Human Services Appropriations Bill. The amendment was incorporated into the conference report on the Fiscal Year 2005 Omnibus Appropriations Bill (H.R. 4818), which was signed into law on December 8, 2004 (Public Law 108-447).
Judicial: On December 13, 2004, the National Family Planning and Reproductive Health Association (NFPRHA) filed a lawsuit in U.S. District Court in Washington, D.C., claiming that the Hyde/Weldon Conscience Protection Amendment was unconstitutional (NFPRHA v. Gonzales). On December 20, 2004, Judge Henry Kennedy denied a motion for a temporary restraining order. On January 5, 2005, a hearing was held to consider NFPRHA’s motion for a preliminary injunction. On September 28, 2005, the court denied the motion. In his decision, Judge Kennedy rejected NFPRHA’s argument that the Hyde/Weldon Amendment was unconstitutional. “The court cannot conclude . . . that the Weldon Amendment overreaches Congress’ spending powers, exceeds the permissible boundaries of legislative delegation, meets the rigorous void-for-vagueness test, or is otherwise constitutionally infirm on its face.”
On January 25, 2005, California Attorney General Bill Lockyer filed a lawsuit in U.S. District Court, Northern District of California, also challenging the constitutionality of the Hyde/Weldon amendment. On the floor of the House the same day, Rep. Dave Weldon (R-FL) commented on the amendment and this lawsuit: frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position= all&page=H176&dbname=2005_record.
Senate: During the course of the November 20, 2004 debate in the Senate, Sen. Barbara Boxer (D-CA) stated that in the new Congress -- 2005 -- she would introduce legislation to repeal the conscience provision. She secured agreement that by April 30, 2005, the Senate would consider her proposal, with at least four hours of debate and an up-or-down vote with no amendments.
On February 23, 2005, Msgr. William Fay, General Secretary of the USCCB, Sister Carol Keehan, Chairperson of the Board of Trustees of the Catholic Health Association, and Dr. Steven White, President of the Catholic Medical Association, sent a joint letter to U.S. Senators, urging defeat of the Boxer provision. See: nchla.org/datasource/idocuments/hydeweldonletter2c.pdf.
On April 21, 2005, Sen. Boxer declined the offer for a vote on her legislation. Senate Majority Leader Bill Frist considered his obligation to allow for Sen. Boxer’s provision fulfilled. Sen. Boxer signaled that she intended to work with Sen. Tom Harkin (D-IA) to weaken or overturn the Hyde/Weldon Conscience Protection Amendment during committee action on the Labor/HHS appropriations bill in the fall. Subsequently, Sen. Arlen Specter (R-PA), chairman of the Senate Appropriations Subcommittee on Labor, Health and Human Services, reported out the Fiscal Year 2006 Labor/Health and Human Services Appropriations Bill (H.R. 3010) with language that guts the Hyde/Weldon Conscience Protection Law. On July 14, H.R. 3010 was placed on the Senate calendar. On October 27, 2005, the Senate passed H.R. 3010 with the weakened conscience protection language.
House: During floor debate, no attempt was made to strike the Hyde/Weldon Conscience Protection Amendment from the Fiscal Year 2006 Labor/HHS Appropriations Bill (H.R. 3010). However, Rep. Nita Lowey (D-NY) stated that she objected to the “Weldon refusal clause” and that she would work “to remove this provision from the final bill” (Congressional Record, H5028, 6/23/05).
Conference Committee: On November 11, 2005, the Office of Management and Budget stated that the Administration “strongly supports” the conscience protection amendment and that the “President’s senior advisors would recommend that he veto the bill [H.R. 3010] if the final version contains the Senate’s language.” In conference the Senate yielded to the House and the Hyde/Weldon Conscience Protection Amendment remained in the final bill (House Report 109-300, filed November 16, 2005). On November 17, 2005, the House rejected the conference report on H.R. 3010, though this action had no relation to the conscience language. H.R. 3010 is one of the appropriations bills not yet enacted into law.