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On a pair of 3-3 votes along party lines, the Wake County Board of Commissioners Monday neither ratified nor overturned County Manager David Cooke's unilateral decision to drop coverage for elective abortions from the health insurance plan for Wake employees.
The result is confusion. The three Republican commissioners believe Cooke's decision, announced last Wednesday following our story on the issue, is final, unless overturned by the board. And they don't want to overturn it.
County attorney Scott Warren supports their view, which has the effect of leaving some abortions (those unrelated to rape, incest or medical necessity) out of the insurance plan, at least temporarily.
The three Democratic commissioners believe Cooke's decision exceeded his authority without board approval, however, and they don't intend to approve it.
Jack Nichols, an attorney and the Wake Democratic Party chairman, spoke at Monday's meeting on behalf of Planned Parenthood. He points out that the agenda item rejected by one of the 3-3 votes was titled "Ratification of Health Insurance Plan Amendment."
Because it wasn't ratified, Nichols argues, Cooke's decision was invalid and would not survive a lawsuit. But he hopes that won't be necessary. "I'd rather see it solved politically than legally," Nichols says, because of the expense to both sides of a court fight.
Once again, the absence of the board's fourth Democrat, Harold Webb, was critical. Webb, 84, is recovering from a stroke he suffered in October. He did attend the commissioners' daylong retreat two weeks ago, looking fit (as he always has) but unable to say much because of a condition called speech aphasia. As his wife, Lucille, explained that day, Webb's thinking is clear, but his speech, while improving, comes out garbled at times.
Webb will decide very soon, she said, whether he can return to the board or should step down so the Democrats can name a replacement in time for what are expected to be contentious budget negotiations this spring.
In the meantime, the board operates with a Republican, Tony Gurley, as its much-disputed chair. (He was elected when Democrat Betty Lou Ward was in the bathroom, and the Republicans, by a 3-2 vote, deemed her departure "unexcused.")
Gurley and his fellow Republicans Joe Bryan and Paul Coble are clearly disinclined to be gracious in their faux-majority status. The first of the split votes Monday, for example, was in response to a request by Democrat Lindy Brown to remove the abortion question from the board's consent agenda. Ordinarily, such requests are granted automatically since, if someone is questioning an item, it lacks the supposed "consent."
But when Brown asked that the question be moved to the end of the regular agenda, to assure that it would come up after the public comment period, Gurley ruled that her request required a vote, which was rejected 3-3.
Brown reacted with a series of dismissive "C'mon, Tony's," refusing to show any deference to the chair after he'd stepped on her. Ward and Stan Norwalk, her fellow Democrats, were equally steamed, if more resigned to their plight.
Webb's return, or his replacement, could result in the restoration of abortion coverage. It could also result in Gurley's removal as chair, though it is Warren's legal opinion that, once elected, the chair cannot be removed in the same year.
This opinion, too, however, would presumably be subject to a vote either ratifying or overturning it, once seven members are present. For now, though, such a vote would end up 3-3 and leave Gurley in charge.
In practical terms, the abortion question is largely inconsequential. Just a dozen Wake employees have claimed insurance for an abortion in the last six or seven years, according to Gurley. And as one abortion foe put it Monday, if you work for the county, you can probably afford to pay for an abortion yourself. (They cost about $400 to $600.)
In legal terms, the Republicans' position—and Cooke's—is dubious. Warren says Cooke has the power to "make changes to the [insurance] plan to conform it to the law." But the law hasn't changed—not in North Carolina. In fact, the state's own health insurance plan continues to cover elective abortions for workers through the 16th week of pregnancy.
The only change is that state House Minority Leader Paul Stam, R-Wake, decided to make an issue of the abortion coverage in most local government plans, threatening lawsuits based on a 1981 state Supreme Court decision never before considered relevant to the subject—even by him.
If it were relevant, asked an angry Sandy Babb, representing NARAL Pro-Choice of N.C. on Monday, why did it take Stam 29 years to figure that out—since he himself was the lawyer and the plaintiff in Stam v. State?
The Stam case upheld the constitutionality of the then-state abortion fund for indigent women but barred Wake County from adding funds to it without specific legislative authority.
There is no specific legislative authority either, Warren notes, for counties to cover abortions in their insurance plans. That's the reason, he said, that he went "right to source" and called Stam to ask whether, if the county maintained its coverage, anyone would sue.
"It would be an absolute certainty," Stam replied, according to Warren. (Stam refuses to talk to the Indy.)
But as Sarah Preston, an ACLU North Carolina lawyer, argues, there's also no specific authority to cover vasectomies, erectile dysfunction, fertility treatments or most other medical conditions. Rather, there's blanket authority for counties to decide what their compensation plans should be and what insurance, if any, to offer their employees. Singling out women's health coverage for cuts could be a violation of their equal rights, she adds.The ACLU sometimes has to sue or threaten a lawsuit, Preston said Monday, a little sarcastically. But she's never seen a government fold so easily when threatened with a lawsuit as Wake did when Stam came along.
On a related note, the N.C. League of Municipalities' Risk Management Trustees did vote last week (unlike the Wake Commissioners, where the decision was not to vote) to exclude elective abortions from the league's basic health insurance plan. The league's insurance plan covers 187 towns and more than 300 governmental organizations across the state.
But the trustees also voted to offer women employees an "opt-in" to abortion coverage, which is offered at no additional cost by Cigna, the plan's administrator.