Certainly one cannot turn on the news without seeing a story about the feud over the Catholic Church’s stance on forbidding the use of contraception and Obama’s Patient Protection and Affordable Care Act (PPACA) that mandates free contraception to women. In preparing this article, I took the time to review many articles from liberal and conservative news outlets, law professors who are experts on constitutional law, and statements from the USCCB and Bishops. Before asking questions, I want to outline the following points:
- In the literature reviewed, only two women, Sr. Carol Keehan and Sr. Mary Ann Walsh, made a statement against this policy stating that the government is interfering with the working of the Church. Most voices heard and shouting the loudest are members of the clergy.
- Hospitals considered “Catholic” hire people of all faiths and various beliefs. They also treat patients of all faiths. They are not exclusively “Catholic.”
- Catholic identified Colleges hire professors and staff that are not Catholic. Moreover, their student body is not totally Catholic.
- Catholic Charities, once again, hire non-Catholics.
- Insurance plans currently in place often offer contraception prescriptions at a zero to low co-pay price. These plans are in-force at many Catholic Institutions.
- Under HIPAA, healthcare of employees are protected and the Employer, even the Catholic Church cannot violate the privacy of the patient, even if it is an employee.
- Birth Control Pills are often prescribed for women with endometriosis or other “female” reproductive disorders and not birth control.
- Women pregnant, carrying a dead baby, cannot have surgery due to risks are given medication to induce abortion are given.
With this background, I want to address the question causing the most controversy: Separation of Church and State. According to Sr. Jane Marie Klein, Chair of the Board of the Franciscan Alliance who oversees a system of thirteen hospitals, “This is nothing less than a direct attack on religion and First Amendment Rights.” She further states, “I have hundreds of employees who will be upset and confused by this edict, I cannot understand it at all.”
According to Nick Baumann, the central mandate—“most employers have to cover preventative care for women”—has been law for over a decade. This point is completely lost in the current controversy, as Republican presidential candidates and social conservatives claim that Obama has launched a war on religious liberty and the Catholic Church. Despite the longstanding precedent, “no one screamed,” until now, said Sara Rosenbaum, a health law expert at George Washington University.” According to Eleanor Smeal, President of the Feminist Majority Foundation, contraceptive services have “been part of our program” in faith-based schools, hospitals, and charities “since about 1972.” At that time, this issue found support with both Democrats and Republicans.
In Baumann’s article, he states, “in December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees.” In fact, Baumann points out men and women have to be treated equally under the law. Moreover, the EEOC’s interpretation of the law is that preventative care coverage cannot be offered without offering birth control coverage, too. Not even religious employers were exempt from the EEOC decision.
According to Clarence Darrow, the exemption is moot because the law’s definition of “religious” is flawed. It defines religious employer as having its purpose to 1) cultivate religious values, 2) primarily employ people who share the organization’s religious tenets, and 3) primarily serve people its religious tenets. Under this definition, churches are exempt but religious universities, hospitals, and organizations are not. If they want to be exempt, they would have to turn away non-Catholic patients, students, clients, professors, staff, nurses, doctors, and others that are not Catholic. Leslie C. Griffin, J.D., Ph.D. sets out the same definition as Darrow but adds a fourth requirement “The entity is a nonprofit organization as described in Section 6033(a)(2)(A)i or iii of the Internal Revenue Code.” By hiring and serving non-Catholics, these Catholic organizations do not fall within the category of religious exemption.
Griffin also stated in 1990, the U.S. Supreme Court ruled in Employment Division, Department if Human Resources of Oregon v. Smith that a Native American fired for smoking peyote in religious rituals which caused him to fail his drug test and resulted in termination of his employment was ineligible for unemployment benefits. Though Smith asserted the free exercise to religious practice under the First Amendment, Judge Scalia ruled “the right of Free Exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law’.” Women’s health laws are neutral laws as defined in the Smith case – “neither pharmacists nor religious organizations possess a constitutional right to exemption from the law.”
Administration officials stressed that individual decision about whether or not to use contraception and what kind is between a woman and her doctor. According to the ACLU, women have the right to follow their own beliefs and say no – it is an option not a mandate. In other words, Catholics employed and have health insurance with free contraception have the right to say no. It is also important to remember that to completely eliminate this option, the “Church’s ‘conscience’ puts women at risk.”
The largest Catholic university in the nation has admitted to providing contraception coverage as part of its health care benefit package, further undermining the GOP’s claims that Obama’s regulation requiring insurers and employers to offer reproductive health benefits represents and “unprecedented” war against religion. “The employee health insurance plans include a prescription contraceptive benefit, in compliance with state and federal law,” DePaul University spokesperson Robin Florzak confirmed to ThinkProgress. “An optional insurance plan that covers such benefits is available to students, also due to previously established state and federal requirements.” According to ThinkProgress “other Catholic colleges and hospitals, including Georgetown and the six former Caritas Christi Catholic hospitals in Massachusetts, have also admitted to offering birth control benefits.” DePaul’s is one of 28 to have adopted a contraception coverage requirement.
This separation of Church and State has some ironic twists to it. The first is federal funding from a governmental agency to a church. If one wants to argue separation of Church, it would seem that a complete severing may be necessary. According to The Blaze and the Washington Post, the Department of Health and Human Services funded the U. S. Conference of Catholic Bishops special programs that assisted victims of modern-day slavery or human-trafficking. The money was allocated to three non-catholic groups because the bishops refused to refer trafficking victims to receive contraceptives or abortions. In the past the HHS has given over $800 million in funding for social services to Catholic groups since the mid-90’s, $348 million of which went to the Bishops Conference. With this type of funding, HHS points out that no bias exists towards the Catholic Church. Many Catholic institutions that the Bishops are demanding exclusion and separation of Church and State are recipients of federal money.
Then there is the dissension over the Church’s stance on birth control. According to USA Today, most Catholics want birth control and 98% of U. S. Catholic women used birth control at some point in their life. The Huffington Post also confirms this statistic. According to sociologist William D’Antonio, 89% believe that the decision to use contraception is theirs, not the Church’s decision. This is an issue that has plagued the church for decades.
The US Bishops cite a biblical precedent for their actions, a non-violent objection and rebellion against what is wrong (Acts 5:29). However there seems to be a precedent the hierarchy is overlooking: God’s gift of Free Will to all human beings. Besides the doctrine of free will, there is the issue of conscience. Cardinal-elect Dolan is no stranger to making incorrect statements without looking or knowing all of the facts. In fact, on PRNewswire.com he states, “to force American citizens to chose between violating their conscience and foregoing healthcare is literally unconscionable.” In fact, with the one-year delay given to church-affiliated hospitals and organizations prompted Cardinal-elect Dolan state “In effect, the president is saying we have a year to figure out how to violate our consciences.”
It is interesting that the issue of violating one’s conscience is a valid assertion here, but denied when an individual attempts to assert his conscience. In essence, based on the facts and information found, this is nothing more than a political rhetoric. Engaging in political rhetoric is a slippery slope, especially if you are an exempt entity or foundation as defined as the Internal Revenue Service.
Michele Stopera Freyhauf is currently at the University of Akron doing post-graduate work in the area of the History of Religion, Women, and Sexuality. She also has a Master of Arts Degree from John Carroll University in Theology and Religious Studies and is an Adjunct Professor at Ursuline College. Her full bio is on the main contributor’s page or at http://johncarroll.academia.edu/MicheleFreyhauf .