National Catholic Register


When ‘Rights’ to the Pill Trump the First Amendment

BY Sue Ellin Browder

Register Correspondent

September 13-19, 2009 Issue | Posted 9/4/09 at 9:05 AM


BELMONT, N.C. — Federal action against Belmont Abbey College in North Carolina is only the latest in a decade-long effort to secure universal access to paid contraceptive-drug coverage.

The battle seems to be heating up; laws, legal action and government agencies take aim at Catholic organizations, even as President Obama promises “robust” conscience protection in health care.

The U.S. Equal Employment Opportunity Commission ruled in August that Belmont Abbey College, which is operated by Benedictine monks, must offer contraceptive-drug coverage to female employees or face legal charges of gender discrimination.

The president of the college has stated the institution will close rather than offer contraception.

And in Wisconsin, the state budget passed in June contains a provision directing that health-insurance plans, including those purchased by Catholic dioceses, provide such coverage. There’s no conscience-protection clause allowing the Church to opt out.

The cases represent an aggressive attempt to use “gender-equity rights” to force religious organizations to comply with contraceptive-drug mandates in violation of the free exercise of religion protected by the First Amendment of the U.S. Constitution.

The push to achieve “universal access” to paid contraceptive-drug coverage, even at the expense of religious organizations’ First Amendment rights, has been quietly advancing in small, incremental steps at state and federal levels for more than a decade.

Maryland passed the first contraception mandate in 1998. Since then, 34 other states have followed suit.

Once these laws were in place, contraception marketers pressured employers to offer contraception-drug coverage by suing them under gender-discrimination laws.

According to a Guttmacher Institute report, “a landmark victory in litigation” came in June 2001, when a federal court in Seattle ruled that Bartell Drug Co., which excluded contraceptive coverage from its prescription-drug plan, had violated Title VII of the Civil Rights Act of 1964 (which prohibits sex discrimination in the workplace by employers).

In Erickson v. Bartell Drug Co., the federal court ruled that “the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception.”

The Guttmacher Institute last year revealed the no-holds-barred views of lobbyists demanding contraceptives-for-all over freedom of conscience. “In the last analysis,” a Guttmacher Policy Review stated, “when conflict [between rights] does ensue, when no accommodation can be made that allows a health care professional to heed his beliefs without obstructing a patient’s access to care, it is the patient’s needs that must prevail.”

But Marie Hilliard, director of bioethics and public policy at the National Catholic Bioethics Center in Philadelphia, said that casting contraception as a woman’s health “need” is disingenuous. “If you look at the coalitions that lobby for what they call ‘a woman’s right to reproductive health,’ you will see coalitions of groups that are really advancing mutilation of women, be it chemical or surgical,” she said.

Redefining Religion

Now Title VII is being used again to force compliance. This time the case involves Belmont Abbey College.

The Equal Employment Opportunity Commission had originally found in favor of Belmont Abbey and closed the case in March, and some observers are wondering what has motivated the reversal. Though the Obama administration has promised “transparency” in government, the EEOC refused comment on the case, citing “confidentiality provisions of Title VII of the Civil Rights Act.”

Belmont Abbey has retained the Becket Fund to assist in its defense. Said Becket Fund’s president, Kevin Hasson, “When President Obama is at Notre Dame or the Vatican, he talks a good game about protecting conscience. But when his administration goes to Belmont Abbey College and the rubber meets the road, it’s a different story.”

“Belmont Abbey College is confident that its decision regarding the elimination of these benefits will ultimately be found to be legal,” said the college’s president, William Thierfelder. Still, “if the government tells us, ‘Provide contraception or you have to close your doors,’ then, in conscience, we, the administration, along with the board of trustees and the monastic community, would have to close our doors.”

He added, however, that it’s important to remember the government cannot make the college do anything. “It has no authority to force any employer to take any action. [The government] can bring a lawsuit if it finds conduct that it believes violates Title VII or other employment statutes, but that is the most it can do.”

The National Women’s Law Center declined comment on the case, but according to a background paper put out by the group, pregnancy prevention “is central to good health care for women” and the exclusion of prescription contraceptives from health insurance coverage “unfairly disadvantages women by singling out for unfavorable treatment a health insurance need only they have.”

In addition, Belmont Abbey is located in North Carolina, one of seven states that have redefined “religion” so narrowly that Catholic schools, hospitals and charities no longer qualify.

In California and New York, for example, an organization can legally claim a “religious” exemption only if it employs mostly persons who share the tenets of the faith and if one of its main purposes is to proselytize.

By those standards, no Catholic hospital, school or charity would qualify.

“The danger [of these redefinitions] is incredibly significant,” said Hilliard. “If government has decided to dictate what qualifies the Catholic Church as a religion, then all religions are at risk of being defined away by government as being philosophies, nonprofit social agencies or just arms of government.”

Other states with “religion redefinition” laws include Arizona, Arkansas, Hawaii and Oregon.

No Public Hearings

In Wisconsin, the birth control-drug mandate was simply slipped into the state budget through a motion in the Joint Finance Committee. It was not debated on the floor of the state Legislature.

“There were no public hearings, no opportunity for public debate,” said Kim Wadas, associate director for education and health care at the Wisconsin Catholic Conference.

“This mandate violates not just our religious values, but also our constitutional rights,” said the state’s bishops in an August statement. “Nowhere does the [U.S.] Constitution say that the right of conscience is protected except in matters related to human reproduction.”

Only two Wisconsin dioceses — La Crosse and Superior, which have self-funded insurance plans — have dodged the mandate.

Not only have state legislatures redefined Catholic ministries, but so have the courts.

In a 6-1 ruling in 2004, the California Supreme Court ruled that Catholic Charities of Sacramento was not a “religious employer” under state law because it “serves peoples of all faith backgrounds, a significant majority of whom do not share the Roman Catholic faith.” The ruling required Catholic Charities of Sacramento to pay for contraceptives as part of its employee health insurance.

Who’s behind these religious redefinitions?

“In California, it was principally Planned Parenthood that was behind it, along with the American Civil Liberties Union, which drafted the model language that the bill was based on,” said attorney Piero Tozzi, executive vice president of the Catholic Family & Human Rights Institute.

According to Tozzi, the California religious exemption was actually a “nonexemption” designed to capture and exclude as many Catholic organizations as possible.

“I think [these laws] reflect a misunderstanding of how religious institutions behave,” said attorney Gerald Russello, a fellow of the Chesterton Institute at Seton Hall University and a Register contributor.

Such laws, he said, reflect the “modern idea that you can think whatever you want, but once you start acting in ways consistent with your religious beliefs, somehow you’re then able to be regulated by the state.”

As Russello pointed out, “Catholics have always understood that one expression of their faith involved performing corporal acts of mercy, which is why they set up hospitals, health-care clinics and charities in the first place.”

Unfortunately, Catholic Charities of Sacramento may have inadvertently helped redefine itself as a nonreligious organization. In its brief to the California Supreme Court, the charity conceded that its purpose was “not the direct inculcation of religion values,” but rather “to offer social services to the general public that promotes a just, compassionate society that supports the dignity of individuals and families.”

Russello said the court “seized on this language” to rule the charity was not “Catholic” enough to be protected by religious exemptions. “By explicitly separating its religious existence from its charitable work, Catholic Charities of Sacramento gave the court an opening to deny it constitutional protection,” Russello wrote in a Register commentary.

A Distinctive Voice

Thierfelder believes the situation can be resolved amicably if all people who value religious freedom will stand up and speak out with a unified voice. Further, he indicated that if people of faith present a united front, other church-affiliated organizations may be spared similar government violations of their freedoms.

“If you’re left to fend individually for yourself, you get isolated, and things can happen to you,” Thierfelder said.

As laws hostile to the Church continue to be passed, Russello said that Catholic institutions also need to be wary of watering down their religious messages in order to receive government money.

“Catholics need to let our legislators know that they represent a distinctive voice that in a free society needs to be heard,” Russello said, “and that Catholics and other believers will not tolerate laws targeted at the expression of their faith.”

Sue Ellin Browder writes

from Ukiah, California.