This story appears as part of a collaboration to strengthen investigative journalism in Maine between the BDN and The Maine Monitor. Read more about the partnership.
The U.S. Department of Health and Human Services’ Office for Civil Rights announced on March 19 that it would investigate Maine and 12 other states that have laws requiring health insurance plans to cover abortion services.
The office is asserting that a federal provision called the Weldon Amendment, which protects “health care entities” such as hospitals, physicians or health plans from discrimination if they do not provide or pay for abortions, also protects employers or other health insurance plan sponsors if they do not pay for or cover abortions.
The Office for Civil Rights said in its notice to the Maine Department of Insurance that it had reviewed Maine’s laws and determined that it had “sufficient authority and cause to investigate whether Maine is unlawfully coercing entities covered by Federal health care conscience protection laws to provide, pay for, or provide coverage of abortion, or is otherwise discriminating against such entities in violation of these laws.”
Under Maine law, state-regulated medical insurers and MaineCare, the state’s version of Medicaid, are required to cover family planning services, abortion services and pregnancy-related services. The state does not regulate self-funded health plans or Medicare, and there are some exceptions for religious employers’ health insurance, according to the state.
Mary Ziegler, a law professor at the University of California, Davis and an expert on the law, history and politics of reproduction, said the investigation is not a surprise, but it comes at an interesting time politically for the Trump administration.
Debate over interpretation of the Weldon Amendment goes back multiple presidential administrations, Ziegler said. The Weldon Amendment was passed during the George W. Bush administration and has long been the subject of controversy because the definition of “health care entity” does not explicitly include employers that maintain health insurance plans for their employees or other health plan sponsors such as unions. Republican administrations have interpreted the Weldon Amendment to include those groups whereas Democratic administrations have interpreted it to not include them.
Social conservatives have demanded these investigations for years now, Ziegler said. Project 2025, a blueprint for conservative action published by the Heritage Foundation, said it was a priority to withdraw up to 10 percent of Medicaid funds from states that it saw as violating the Weldon Amendment by requiring coverage of abortion services.
During its first term, the Trump administration investigated California for allegedly violating the Weldon Amendment and threatened to withhold $200 million in Medicaid funding. California challenged the investigation. The legal process wasn’t resolved before the end of President Donald Trump’s first administration and, when Joe Biden, a Democrat, became president, he rescinded the notice of violation, Ziegler said.
The recent investigations come at a time when Trump is in a “weird position” on abortion, Ziegler said. He hasn’t cracked down on abortion medications, as some abortion opponents had hoped, perhaps because polling shows doing so would be unpopular nationally, she said, so Trump has been looking for other ways to restrict abortion access that are not widely unpopular before the midterm.
“The aggressiveness with which Trump is pursuing these Weldon Amendment investigations you really have to kind of read as throwing a bone to a lot of these rightwing groups that he’s not entirely on good terms with right now,” Ziegler said.
However, it could be a long process, she said. It’s unclear how long the investigation will take, and then it is likely to end up in court because there are differing interpretations of the Weldon Amendment. In addition, there are questions about whether any penalties would be unconstitutional, she said.
“So this was not just a thing where, if they find a violation, that Maine is going to lose hundreds of millions of dollars in Medicaid funding,” she said. “There’s going to be a lot of fighting and litigation and uncertainty if that happens.”
The Office for Civil Rights gave the Maine Department of Insurance 20 days beginning on March 19 to respond to its data request asking for information about the entities that enforce Maine statute requiring coverage, a list of all federal funding received by those entities, a list of of enforcement action taken against insurers that failed to cover abortion and more.
In response to the investigation, Democratic Gov. Janet Mills, who is also running for U.S. Senate, called the compliance review a facade intended to restrict access to abortion.
“Maine will not be intimidated nor will we back down from defending reproductive freedoms,” Mills said in a press release. “I have fought tooth and nail to defend and expand reproductive rights in Maine, and I will stand in the way of this latest attack.”
The Guttmacher Institute, a research and policy organization that supports abortion access, estimated clinicians provided 2,700 abortions in Maine last year.
The other states with coverage requirements are California, Colorado, Delaware, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Vermont and Washington, the AP reported.
