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The Final Contraceptive Coverage Rule: Why You Should Stay Away From Any Organization That ‘Self-Certifies’

9:43 am in Uncategorized by RH Reality Check

Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

increase contraception, duh.

Increase contraception

On June 28, the Obama administration released the final version of the contraceptive coverage rule. Beginning January 1, 2014 women who aren’t already benefiting from the Affordable Care Act’s mandated contraceptive coverage, like those employed at religiously affiliated organizations that took advantage of the enforcement safe harbor, will be able to receive contraceptive coverage directly from their insurance companies, rather than their employer-provided plans. This “religious accommodation” makes employers’ involvement in contraception use even more remote, while ensuring that women still have access. [1]

The bishops and other anti-contraception crusaders will not be happy with the religious accommodation, so expect the lawsuits dismissed as premature or held in abeyance back in court soon. That aside, it is important to understand how far the Obama administration bent for the contraception opponents and how little it demanded in return. Organizations are not even required to make their religiously based objection to birth control public.

Granting the religious accommodation without abandoning women with religiously affiliated employers is possible because of the unusual economics of contraceptive coverage: the Obama administration can tell insurance companies to cover contraception without a co-pay, because providing it is cost-neutral for insurers. All (reasonable) parties can have their way—employers don’t have to provide plans with coverage, but employees can still get it, and insurers don’t have to pick up “the bill” because there really isn’t one. But the problem remains that religiously affiliated employers are being excused from the law without having to make even the smallest disclosures about their organizations in return. This sets an unwelcome precedent for future demands for special treatment.

I argued both in a piece for RH Reality Check and in a comment to the rule that the “self-certification” for the religious accommodation should entail explicit and public disclosures about how the organization “holds itself out as religious,” who determines what constitutes the religious beliefs of the organization, and what those beliefs are. In releasing the final rule, the government acknowledged it received comments to that effect, but further reduced the disclosures required for the accommodation. In order to qualify for the religious accommodation, organizations need only fill out a two-page form and file it with their insurer. And the form no longer even requires organizations specify the contraceptive services to which they object.

This is an invitation for organizations to characterize themselves as religious when they want an exemption from the law but secular when they want government funding. For example, Manhattan College and St. John’s University tell the state of New York they are not church-controlled to get taxpayer funds, then turn around and tell courts they are church controlled when they don’t want to have to deal with employees unionizing or abide by the Americans with Disabilities Act.

There are lots of reasons the claim that requiring contraceptive coverage is a religious freedom violation shouldn’t fly. But given the increasing frequency with which religiously affiliated organizations get what they want, simply requiring them to own up to whatever they purport to believe would be a big step in the right direction. Instead, they are currently free to make opposite representations depending on who is asking without any consequences.

The self-certification is insufficient, but it can still serve as a useful litmus test. Before you enroll or accept a job at any religiously affiliated organization, find out if it self-certified. If it did, steer clear. I realize, that may not be possible if you are a social worker in an area where Catholic Charities has a monopoly, or if you need to go to whatever school gives you the best financial aid, or if you’ve worked somewhere for years that has just now discovered it opposes contraceptive coverage. But the general rule should be: stay away from institutions that self-certify. It is impossible to anticipate on what other grounds they will claim an entitlement to discriminate or otherwise impose religious doctrine in the future. Even if they tell you separate birth control coverage is one quirk at an otherwise welcoming place for women, or gay people, or Jews, or whoever else—stay away. They probably have or would take the opportunity to discriminate in other contexts.
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Bishops Tap Veteran of Islamophobic, Homophobic Legal Shop as Top Flack

12:22 pm in Uncategorized by RH Reality Check

Written by Adele Stan for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Whosoever desires constant success must change his conduct with the times. — Niccolo Machiavelli

Timothy M Dolan in his robes

Cardinal Timothy M. Dolan is part of a dangerous reframing of "religious liberty."

At a gathering of Catholics in his archdiocese last year, Cardinal Timothy M. Dolan, the archbishop of New York, uttered a strategic point that would have done Machiavelli proud. The bishops, he said, are perhaps not the church’s best messengers.

“In the public square, I hate to tell you, the days of fat, balding Irish bishops are over,” he told his flock, according to the New York Times, at a diocesan convocation on public policy. Reporting for the Times, Tim Stelloh and Andy Newman wrote of an example he gave the crowd, an apparent reference to the hiring of Helen Alvaré by the National Conference of Catholic Bishops in 1990:

[Dolan] told a story about bishops hiring an “attractive, articulate, intelligent” laywoman to speak against abortion and said it was “the best thing we ever did…”

Dolan, as president of the United States Conference of Catholic Bishops (USCCB), decided this week to operationalize his assessment by hiring Kim Daniels, a former operative for Sarah Palin’s political action committee, as his spokesperson — a new position with a much broader mission than that covered by Alvaré in the 1990s.

An attorney and youthful mother of six who echoes the bishops’ disdain for contraception and abortion, Daniels is a smart cookie with an appealing personality. In other words, an “attractive, articulate, intelligent” laywoman.

When the USCCB announced Daniels’s appointment, the thing that grabbed reporters’ attention was her work in 2010 as an operative for Sarah Palin’s political action committee, SarahPAC — a résumé entry conveniently omitted from the bishops’ announcement about their new hire. If there was any doubt remaining of the bishops’ total alignment with the most right-wing part of the Republican Party, that data point should lay it to rest. But the rest of Daniels’ career is far more interesting — and troubling.

The Reframing of Religious Freedom

Over the course of the last several decades, as reasonable people, including most lay Catholics, increasingly rejected the church’s medieval worldview on women’s rights, human sexuality, and LGBTQ rights, the political power of U.S. bishops has been on the wane. During the debate over health-care reform, President Barack Obama went around the prelates in order to confer some Catholic buy-in on the deal, ultimately winning the approval of a number of highly placed nuns, who signed a letter to that effect, as well as the head of the Catholic Health Association, who also happens to be a Catholic sister.

The bishops were incensed. At that moment, their lack of sway over their own people was revealed for all to see. They needed a new angle, one that could also speak to the hearts of those ordinary Americans who, in the wake of the church’s massive child-sex-abuse scandal, now judged them to be mere mortals, and deeply flawed mortals at that. Enter the Red, White, and Blue.

The success of the Tea Party movement, with its bigoted and misogynist underpinnings dressed in the regalia of patriotism, was apparently not lost on the bishops. On the heels of their humiliating defeat with the Affordable Care Act, the bishops found a new, patriotic-sounding cause to wrap around their attempts to codify prejudice and discrimination as secular law: religious freedom, which is guaranteed by the First Amendment to the Constitution. Summon the fife and drum!

Trouble is, the bishops’ notion of religious freedom differs a bit from that of the founders, who sought to avoid the establishment of a state religion by promising Americans freedom of worship. What the bishops seek, on the other hand, is the right to impose their religious views on those who do not subscribe to their theology. Any impediment to their totalitarian view is now framed as a breach of their religious freedom. And Kim Daniels has been deeply involved in the advancement of this strategy.

Media-Friendly and Studio Ready Church Ladies

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The Bishops’ Lawsuit: A Colossal and Purposeful Drain on Public Funds

1:09 pm in Uncategorized by RH Reality Check

Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

stack of papers

Government lawyers filed an emergency motion to dismiss lawsuit over contraceptive coverage mandate citing exorbitant costs in responding to document requests.

This week, the government filed an emergency motion in the New York Archdiocese’s lawsuit against the contraceptive coverage mandate, requesting that the court halt proceedings and dismiss the case. The emergency is that the government is hemorrhaging money defending a regulation it will never enforce against the Archdiocese.

Roman Catholic Archdiocese of NY v. Sebelius is the only lawsuit out of the 23 brought by religiously affiliated organizations not to be dismissed at the district court level for lack of standing or ripeness. The cases have been dismissed because religiously affiliated non-profits are currently completely exempt from the contraceptive coverage requirement. They enjoy a one-year safe harbor period provided for the religious accommodation to be finalized. If you haven’t been injured, you can’t sue.

The government swore up and down from the day the case was filed that the rule in its current form would never be enforced against the Archdiocese and its co-plaintiffs and that a new rule with a new religious accommodation was on the way. As promised, the Obama administration released a new proposed rule, is now reviewing comments from the public on it, and will release the final rule by August. However, in the New York Archdiocese case, Judge Brian M. Cogan found that the administration’s assurances were not enough and that the impending threat of the rule was injury enough for the plaintiffs to proceed.

The Archdiocese et al. proceeded to serve the government with requests for every document under the sun. “Discovery” is the process in which litigating parties get evidence by requesting relevant documents from each other. To respond to a document request, a party has to review documents to determine whether they are responsive to the request and make a log of documents that are responsive but won’t be turned over because they are protected by attorney-client or another privilege. Computer searches only get you so far; a human attorney or paralegal has to determine if a document is responsive or privileged.

Plaintiffs in these cases being 1 for 23, the Archdiocese may have sought to make the most of its unique situation. It made discovery requests the government calls “enormously burdensome and irrelevant.” The Archdiocese also noticed a deposition of Health and Human Services (HHS) Secretary Kathleen Sebelius. Lawsuits are brought over regulations all the time — it is pretty audacious to demand a cabinet member show up in person for yours. That was indeed too far, and Judge Cogan granted Sebelius a protective order.

The plaintiffs didn’t stop there. The Archdiocese subpoenaed the Executive Office of the President (EOP), even though it isn’t a party to the lawsuit, many of the requested documents are protected by various privileges, and you must have an extra good reason to get documents from the president. Also, the EOP being in D.C., the subpoena was issued in a district that has thrown out three of these 23 lawsuits for lack of jurisdiction.

The Archdiocese later withdrew the subpoena. We don’t know why. Perhaps it realized it was an unreasonable request. This did not happen, alas, until after our tax dollars were put to work on a very lengthy motion to quash the subpoena. But whatever that cost, it pales in comparison to the expenditures of various agencies on the New York document requests; in the emergency motion, the government estimates completing the requested document production would take eight years and cost over $10 million.

We should take that estimate with a grain of salt, of course, but the government has sought to back it up. Attached to the emergency motion are declarations from officials of various offices and agencies as to what they have spent so far on this one case and what they estimate it will cost to finish. Two-hundred HHS employees have spent have spent over 2,000 hours and located over 7.6 million pages of potentially responsive documents so far. That has cost over $177,000. Those documents haven’t been reviewed by HHS or their Department of Justice counsel yet. The Internal Revenue Service has spent over a quarter of a million dollars.

The lawyers, paralegals, and IT professionals needed to complete discovery are expensive — even those of the lower-paid government variety. Offices that don’t have enough staff for this have hired contract lawyers, but they can’t afford to do that anymore because of the sequester. Lest you think it’s not a big deal to have government lawyers tied up or that the effect is minimal in the scope of things, consider one example contained in the declaration from the Department of Labor (DOL). The DOL’s Plan Benefits Security Division investigates and litigates cases of fraud or mismanagement in employee benefits. The division, which recovered $1.38 billion for U.S. workers in 2011, argues that the impact on the public interest of putting its attorneys on document review will be far greater than the financial loss.

The Archdiocese, which employs 10,000 people in programs receiving many millions of dollars in government grants each year, will never have to provide health plans with contraceptive coverage under the rule as proposed. Despite this, it is waging a legal battle that is imposing significant costs on the taxpayers who fund its work. And this is only one lawsuit. With the additional cases brought by secular for-profit corporations, over 60 lawsuits have been filed in this scorched earth litigation campaign — which we have to pay to defend.

On the same day the emergency motion was filed, Judge Cogan granted it in part, staying all discovery and proceedings until the contraceptive coverage rule is final. So the government lawyers can get back to other business for the moment. But once the rule is final, I expect we will see that some if not all of those 22 dismissed cases (the ones that haven’t already been appealed) will be refiled.

Back in February, with the sequester looming, the U.S. Conference of Catholic Bishops, which, like the Archdiocese of New York, is led by Cardinal Timothy Dolan, signed a statement by religious leaders urging legislators to protect the interests of the poor. The Bishops’ litigiousness does not reflect the same awareness of our limited resources nor concern for those who will be hurt most by the sequester. Instead, the Archdiocese seeks to deprive its employees of affordable contraception — provided by an outside company — that will enable employees to limit their families to the size they want and can support, using up resources that are needed elsewhere in a time of economic distress.

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Self-Certification and the Contraceptive Coverage Rule: What Does It Mean for an Institution to “Hold Itself Out as Religious?”

12:53 pm in Uncategorized by RH Reality Check

Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Birth Control Pills

The Obama administration is considering who should be exempt from providing contraceptive coverage under the Affordable Care Act.

The Obama administration is accepting comments from the public until April 8th on the Notice of Proposed Rule-Making for the birth control benefit or contraceptive coverage rule. The proposed rule amends the exemption for houses of worship and their affiliates and adds an accommodation for other non-exempt non-profits opposed to birth control.

The accommodation requires that insurance companies offer separate contraceptive coverage directly to the employees of objecting organizations at no additional cost. To take advantage of the accommodation, an organization need only self-certify to its health insurer or plan administrator that it is a non-profit opposed to some of the required contraceptive services and that it “hold[s] itself out as a religious organization.”

It is not enough for an institution seeking special treatment to simply assert that it holds itself out as religious. I expect the Obama administration is loathe to define what it means to be a religious organization or police whether an institution is in fact holding itself out as such, and rightly so. Nevertheless, the institution should have to make a statement describing how it holds itself out as religious and what that religiousness entails. This statement should be made easily available to the public and organizations should have give to notice of it to those with whom it seeks to contract, such as employees, students, patients, and funders.

This is necessary due to a pattern of religiously-affiliated institutions characterizing themselves one way when recruiting or seeking public funding and another when demanding to be exempt from laws that govern secular institutions. The trend in First Amendment Establishment Clause jurisprudence has permitted increasing public funding for religious organizations. This means we need whatever protections the free market can provide individuals from the imposition of religion by institutions active in the public sphere. We can only avoid involvement with institutions that will discriminate on the basis of religious control if we know which institutions those are.

To understand some particularly flagrant examples of religiously-affiliated institutions trying to have it both ways, we turn to a bit of state constitutional law. Over 37 state constitutions contain explicit prohibitions on the use of public money for religious institutions or instruction. New York is among them and its Constitution prohibits public funding of any educational institution “wholly or in part under the control or direction of any religious denomination.”

In the mid-60s many private universities throughout the country were in dire financial straits. New York sought to rescue its private universities with taxpayer funding through a program known as “Bundy aid.” However, giving public funds to religiously-controlled universities was clearly unconstitutional. So religious universities, particularly Catholic ones, underwent re-organizations to separate themselves from the control of their founding religious orders and other church authorities and endeavored to become more suitable places for people of any or no faith to work and study. By becoming non-sectarian, while maintaining only a religious affiliation, they qualified for public funding.  The motivation behind secularization was not exclusively financial, but part of a larger attempt by Catholic universities to strengthen their academic and intellectual legitimacy.

By accepting funds each year, a New York college makes a representation to the state that it is an independent institution free from religious control. Despite this, a number of universities receiving Bundy aid, have asserted that they are church-controlled in order to be free from various generally applicable laws.

In 2010, adjunct professors at Manhattan College sought to unionize. To block them, Manhattan College claimed it was not subject to the jurisdiction of the National Labor Review Board because it is “church-operated.” Among the evidence on which the NLRB board relied in rejecting the claim Manhattan College holds itself out as a religious institution was the fact that Manhattan College deliberately eliminated church control to get Bundy aid and continues to claims to be non-sectarian by accepting it.

In 2009, St. John’s University argued it was exempt from the Americans with Disabilities Act because it is “controlled by a religious organization.” Prior to that, St. John’s successfully argued it was eligible for an exemption from New York’s Human Rights Law for the same reason. In agreeing that St. John’s is controlled by a religious organization, the Court did not take notice of the fact that St. John’s represents to the state that it is not controlled, even in part, by a religious organization in order to get taxpayer funding each year.

Multiple universities that receive Bundy aid have health policies that are controlled by the U.S. Conference of Catholic Bishops through the USCCB’s Ethical and Religious Directives for Catholic Health Care Services.  The Directives are 43 pages long and as detailed as a statute. These schools tend to be less than forthcoming as to how the Directives are implemented in school policy, and some fail to give notice that the Directives control at all.

For a further example of conflicting self-characterizations, we now turn to the permissibility of funding under the federal Constitution. In 2000, the University of Notre Dame received a $500,000 federal grant that funded a program that included training teachers to work in parochial schools. Taxpayers sued the federal government, alleging the grant violated the First Amendment’s prohibition of government establishment of religion. Notre Dame intervened in the case as a defendant to defend its interest in the funds. Inherent to Notre Dame’s argument that the funding did not violate the First Amendment, is the fact that Notre Dame engages in many secular activities. In fact, just by applying for the grant, for which the “[u]se of funds for religion” was explicitly prohibited, Notre Dame represented to the government that despite its religious affiliation, not everything it does is an exercise of religion.

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Boston College Alumni: Why Our Alma Mater Is Wrong for Denying Access to Sexual Health Care

11:56 am in Uncategorized by RH Reality Check

Written by Lindsey Hennawi, Scott Jelinek and Alicia Johnson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Condoms

Condoms

Four years ago, the vast majority (90 percent) of students at Boston College (BC), a Catholic university, voted in favor of having access to sexual health-care education and resources, including contraceptives, on campus. We are proud to have been among the passionate group of students who led that campaign and formed the unofficial student group Boston College Students for Sexual Health (BCSSH). But we quickly learned that the university would ignore the overwhelming call for reform.

Safe Sites is one of the programs we designed to meet students’ need for sexual health care. Boston College administrators knew it existed and let it operate under the radar for years—until this month. Now, their shocking backlash against the program is inspiring news coverage around the world.

The Boston College administration recently sent letters to Safe Sites locations threatening disciplinary action for distributing condoms. Speaking publicly this week, Boston College spokesperson Jack Dunn speculated that students who continue to provide condoms to their peers could face expulsion from the university.

Expulsion. From a major American university. In the 21st century.

As three recent grads who have all gone on to pursue careers in health education and advocacy, we strongly condemn the administration’s abrupt and cowardly interference with students’ attempts to educate their peers and provide them with the tools they need to lead healthy lives. All people deserve access to the information and resources they need to make informed decisions about their own health, including students at a Catholic university.

Why? Because one in two sexually active people will get a sexually transmitted disease by age 25. Half of all women will experience an unplanned pregnancy. And don’t even try to use the “Catholic universities are different” argument; 98 percent of sexually active Catholic women will use contraception in their lifetime.

So since the university isn’t willing to provide sexual health information and resources to its students, who better to step up and do so than students themselves?

We are so proud of the students of BCSSH who continue to fight for health-care access on the BC campus. The BC administration’s threats against them are an embarrassment for an institution that prides itself on being a “new Ivy.” BC is in its sesquicentennial year, but still has so far to go. And making public statements threatening to expel students is a surefire way to discourage new applicants.

Have no doubt: If what is happening today had happened during our senior year of high school, we would not have chosen to attend BC. And we say this as scholarship recipients and student leaders—the kind of young people BC should and does endeavor to recruit.

Still, we often find ourselves defending our alma mater. For all its backwards policies, BC did challenge us to develop and defend strong convictions and to organize effectively in an environment hostile to our cause. But it’s time we stopped backing BC up. The administration’s actions are indefensible.

People ask why “radicals” like us would choose to attend a Catholic university in the first place. We believe college students should not have to choose between the world-class education that BC offers and having their health needs met.

Further, we chose to go to a Catholic university, not the Catholic Church. We were never warned that students who advocate for basic health-care access would be silenced and undermined at every turn. In every tour and orientation, student guides proclaim that BC is a welcoming campus for people from diverse backgrounds and perspectives.

We know now that isn’t true.

It wasn’t true when a conservative student who used the “Holy Father’s teachings” to justify his claim that condoms have no impact on curbing the spread of HIV was invited to the same sexual health policy meeting we, as BCSSH board members, attended with BC administrators; he was given the same platform and afforded the same legitimacy.

It wasn’t true when another student organization on campus was punished for collaborating with BCSSH for a World AIDS Day event.

It wasn’t true when a campus priest harassed BCSSH volunteers during a routine condom distribution off campus.

It isn’t true while the Pro-Life Club is a recognized, funded student organization and BCSSH is not.

It isn’t true when students can’t rely on the campus health center for accurate, evidence-based, judgment-free health information and treatment.

And it isn’t true now, as the administration proves once again how little it cares for the health, wellness, and autonomy of the very students it’s charged with representing and protecting.

We always used to lament that “change is glacial” at BC, but now it’s going backwards. It’s disgraceful that the administration chooses to interpret its Catholic mission so limitedly. To us, BC’s motto, “Ever to Excel,” its commitment to social justice, and its call for students to act as “men and women for others” do not entail the judgment, shaming, or repression the administration is showing to BC Students for Sexual Health.

Boston College encouraged us to follow St. Ignatius of Loyola’s creed to “set the world aflame,” to fill it with the light of our passion, intellect, and hope in order to change it for the better. Perhaps it’s time the school takes its own advice.

You can sign a petition showing your support for BC Students for Sexual Health here.
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Birth Control and “The Myth of the Judeo-Christian Tradition”

2:47 pm in Uncategorized by RH Reality Check

Written by Rabbi Dennis Ross and Rev. Tom Davis for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Myth of Judeo Christian cover

The Myth of Judeo-Christian Tradition by Arthur A. Cohen reminds us that no one group speaks for all members of these religions.

The U.S. Department of Health and Human Services (HHS) recently responded to the concerns of some religious groups and individuals by proposing yet another plan to provide prescription birth control insurance coverage under the Affordable Care Act (ACA). Although this HHS initiative respects religious concerns and ensures access to birth control, it received a negative response from the Catholic Bishops, just as the other initiatives had. New York’s Cardinal Timothy Dolan, who is president of the U.S. Conference of Catholic Bishops, explained the rejection, saying, “In obedience to our Judeo-Christian heritage, we have consistently taught our people to live their lives during the week to reflect the same beliefs they proclaim on the Sabbath.”

Now, it would be reasonable to come away from these words thinking that all Jews and Christians are of one mind about birth control — that is to say, opposed. On the contrary, many U.S. rabbis and ministers have long recognized the moral wisdom of ensuring wide availability of safe and effective birth control. Beginning in the late 1920s and the ’30s, many Jewish and Protestant groups formally endorsed access, including rabbis from Reform and Conservative Judaism, and ministers from Episcopal, Baptist, Congregational, Methodist, and Presbyterian churches. Clergy came forward with the support of their faith teachings, underscored by their real-life experience. The pastors were invited into the daily and private lives of congregants to witness, first-hand, that the ability to control one’s child-bearing makes for healthier children and mothers and for stronger families and communities. Today, one thing is certain: Differences in religious teachings remain, and no religious group or leader speaks for all of the nation’s faithful about birth control insurance coverage under ACA.

The recent HHS announcement affects employees of religiously-affiliated hospitals and the like; churches, synagogues, and mosques remain exempt. The reality is that these hospitals are not the same as houses of worship that conduct weddings or confirmations. They are not-for-profit businesses serving the larger public with secular services that are not specifically religious, like setting a broken ankle or performing an appendectomy. What’s more, a hospital employs staff from all walks of life, including faithful individuals in our communities whose fully informed moral decision may lead to a conclusion that differs from the faith of an employer. Besides, these workers earn their insurance along with wages and pension. The insurance belongs to the worker; an employer’s religious objection is irrelevant. A woman’s private decision about her birth control has a higher moral standing than her employer’s problem with her using it. And all we are talking about is insurance paperwork passing quietly through a human resources office — no one is being asked to use birth control.

Notably, the ACA’s birth control insurance provisions resemble those of New York state and California. These insurance requirements, tested in the highest courts of those states, were upheld as an equitable accommodation. And, as clergy, we emphasize that imposing a religious teaching about birth control into the private, personal home life of an American is an egregious violation of church-state separation. But all this is not enough to satisfy birth control opponents.

Arthur A. Cohen’s book, The Myth of the Judeo-Christian Tradition, encouraged a robust dialogue on our religious difference. He argues that the term “Judeo-Christian tradition” represents “a myth which buries under the fine silt of rhetoric the authentic, meaningful, and irrevocable distinction which exists between Jewish belief and Christian belief.” So let’s take Cohen’s advice and recognize that no one religious body or leader represents all Jewish belief — or Christian belief, for that matter. Where religions disagree, policymakers must not play umpire and pick their favorite “team.” Instead, they need to respect the boundary of church-state separation, leave it to the woman to decide about her health care, and ensure her access to the safe and legal preventive medicine she decides she needs.

Cohen calls our religious differences “meaningful.” So let’s ditch the rhetoric, embrace the wonder, grace, and strength of spiritual diversity, and enter a full-hearted and “meaningful” conversation across denominational lines and within religious groups about pressing issues, such as addressing the needs of the poor, the homeless, and immigrants. And let’s take the moral high ground by recognizing that women own their health insurance and deserve protection from the religious objections of others.

As Notre Dame Appeals Birth Control Benefit, Costs to Catholic Universities of Discriminatory Health Plans Increases

12:21 pm in Uncategorized by RH Reality Check

Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

On Friday, Notre Dame filed a notice of appeal in its lawsuit challenging the contraceptive coverage rule.  So, game on. It was not exactly a surprise when the bishops rejected the Obama administration’s latest overture to religiously-affiliated institutions. And it is now clear that no “compromise” short of freeing all health plans from any regulation whatsoever having to do with contraception will suffice. I didn’t expect all of these lawsuits to go away, but I was hoping, perhaps naively, that Notre Dame might accept the court’s dismissal of its lawsuit given the vocal disagreement with the legal and theological claims therein that has come from students and faculty at Notre Dame. (See hereherehere, and here. A dissent here.)

The lower court dismissed Notre Dame’s lawsuit for lack of standing and ripeness because Notre Dame is not currently required to provide contraception, having taken advantage of the one-year safe harbor period the Obama administration provided while the rule’s accommodation for objecting religiously-affiliated institutions is amended.  All but one of the courts to consider the issue have essentially said that no final rule means nothing to sue about. These cases are pre-mature. (Like I been sayin’!) The Obama administration released a new proposed rule on January 30th, but the rule still isn’t final yet.  Still, the closer we get to implementation of whatever the final rule is, the stronger the plaintiffs’ arguments become that it is time to reach the merits in these cases. (Though I believe Notre Dame lacks standing for other reasons that the government hasn’t argued.)

So why did I think Notre Dame might accept the court’s decision?  My general theory is that the administrators of these plaintiff universities would like to do what is in the best interest of their students and employees and understand that going out of their way to provide a substandard, discriminatory health plan is not the best route to doing so. But the administrators of these institutions are under significant pressure from bishops, donors, and other off-campus orthodoxy-enforcing bullies like the Cardinal Newman Society. The promoters of the litigation campaign against contraceptive coverage likely saw Notre Dame as the crown jewel of plaintiffs, given its place in the American Catholic imagination. Plus, there are few big name schools that could be plaintiffs since so many of them currently have health plans with contraceptive coverage: at least for employees that is, who have more legal protections and bargaining power than students. (I’m looking at you, Georgetown.)

Still in hot water over inviting President Obama to speak at Notre Dame, I doubt University President Rev. John Jenkins had much choice about the lawsuit. Once the suit was dismissed, I thought the Notre Dame administration, having done its part for the bishops’ campaign, might turn its energies to more pressing concerns. Or, if it wants to make sure its health plans are consistent with Catholic concern for access to healthcare, it could fix the inadequate maternity coverage in the student plan. Instead, it is doubling down on claims about contraception that are inconsistent with the legal and theological understandings of the majority of the Notre Dame professors and students who have weighed in on the issue.

This is especially unfortunate given the important role Notre Dame played in the development of Catholic thought on contraception historically. Adding to the history of Notre Dame faculty members’ advocacy for contraceptive access I recounted previously, Kathryn Pogin pointed me to the voice of Notre Dame students in the debate within Catholicism in the sixties. For example, in a 1965 letter (page six here), a Notre Dame student argued for a change in the Vatican’s position and noted Dr. John Rock, a devout Catholic who was integral to the development of modern contraceptives, had lectured on Notre Dame’s campus the year prior.

Since that time, the number of Catholics who accept the Church’s teaching on contraception has dwindled to almost nothing.  Even those who do accept it must make a further leap to accept the claim that the Catholic ban on birth control translates to the impermissibility of compensating employees of varying beliefs with a normal health plan, or even allowing employees access to separate coverage provided by third-party plan administrators per the new rule proposal. In the case of students, they must accept the claim that Notre Dame has a sincere religious belief that requires interference in a money-for-health-insurance transaction between the student and a third-party insurer that involves no university funds at all.

I believe these lawsuits are bad for Catholic education. How bad, only time will tell. Multiple professors at Catholic-affiliated schools have told me they don’t want their kid going to their own universities now that their student health policies have come to light. I’ve tried, with mixed success, to convince concerned students admitted to Fordham Law that the University’s health center policies are not reflective of the Fordham experience, we are working on the problem, and they should come here anyway. More generally, the uncritical acceptance of the idea, by the media and even the Obama administration, that Catholic-affiliated institutions are conservative places where women should have expected discrimination in their healthcare benefits (and who knows what else) is making prospective students and employees rightly wary.

These cases have further implications for our academic reputations. Notre Dame claims to have a sincere religious beliefs that Plan B and Ella are abortifacients, when in fact science has proven otherwise. Are Notre Dame biologists expected to accept the authority of the bishops as to how a drug works? In what other disciplines should we expect Catholic doctrine to trump the knowledge of academics?

These lawsuits are a warning not to accept the assurances of recruiters that any given Catholic-affiliated school is a welcoming place for scholars of all faiths, genders, orientations, or academic persuasions. They undermine the idea that Catholic-institutions are home to research and education equal to that of secular schools, painting them as places one should expect to be controlled and indoctrinated. And sadly, these lawsuits must be viewed in the context of an ongoing crackdown on Catholic nuns, scholars and scholar-nuns.

I’ve been to more Catholic school than most priests. (I stole that line from a Notre Dame grad, but I’ve been to more than him.)  I am extremely grateful for my education and experience, but the claims of Notre Dame and other plaintiff schools cause me to question whether I can continue to recommend it to anyone else.

**If you are an employee or student of a Catholic affiliated institution of any kind and would like information about potentially signing onto a comment to the proposed Health and Human Services rule, an amicus brief in one of the lawsuits challenging the rule, or other cross-campus organizing and advocacy, please send me your contact information via this link.

For It Before They Were Against It: Catholic Universities and Birth Control

3:00 pm in Uncategorized by RH Reality Check

Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Birth control pills

Some Catholic universities were historic supporters of contraception.

If you weren’t eagerly checking the bishops’ blog for their feelings on your health insurance, you may not have known last week was Catholic Schools Week! I generally don’t participate in the bishops’ weeks (or fortnights), but I think this is an ideal moment to highlight the proud history of advocacy for contraceptive access at Catholic-affiliated Universities — which is relevant to all those lawsuits that won’t be going away now that His Eminence Timothy Cardinal Dolan has spoken.

We begin at Notre Dame in 1966. Faculty members formed a group to advocate for government funding of family planning programs and advertised a statement of support in Catholic publications. They received over 500 signatures in under a month from Catholic clergy, nuns, lawyers, doctors, and faculty members  at Catholic universities, including the deans of Notre Dame and Santa Clara’s law schools. The Notre Dame professor chairing the committee told the New York Times the group wished to emphasize that “in a pluralistic society, some legislation may be desirable even though it may not be in accord with the moral principles of a minority of the society’s members.”

The chairman explained that the impetus for the group’s formation had been an address by the Rev. Dexter L. Hanley to the American Bar Association arguing for government family planning programs. Father Hanley was a law professor at Georgetown University. Yes, that Georgetown. The same Georgetown that trained a lawyer named Sandra Fluke. Father Hanley also testified before a congressional subcommittee in support of access to contraception. So when Sandra Fluke did the same thing, not only was she acting like a lawyer, which is presumably what one attends Georgetown Law to learn to do, she was following in the footsteps of a revered Georgetown professor and priest who had inspired Catholics across the country to take action.

Though Fluke is regularly accused of demanding government funding for contraception, what she actually testified about was the sub-par plan available to Georgetown students (who are required to have health insurance). Typically, student health plans involve students paying money to a third-party health insurance company; neither government nor university funds are involved in these transactions. Father Hanley, however, was indeed advocating for taxpayer-funded contraception and education. He acknowledged Catholic teaching against contraception but testified that he could firmly maintain his moral positions as a Catholic while supporting a government program that “permits each citizen a fully free moral choice in matters of family planning, and aids him in implementing this choice.”

Today, rather than permitting its students a “fully free moral choice” as Father Hanley advocated, Georgetown has taken advantage of the safe harbor from the contraceptive coverage requirements, claiming it has a religious belief that bars providing insurance that covers contraception. This is hard to believe given that faculty members’ health plans have included contraceptive coverage for years. Also, Georgetown hosted an excellent conference on the Health and Human Services regulation where most scholars rejected the claim that providing coverage violated Catholic doctrine or that requiring it violated the law. The robust defenses of Sandra Fluke from the University President and the law school faculty were lovely, but fixing the problem she testified about is what’s needed.

Let’s return to Notre Dame. From 1963 to 1967 Notre Dame held an annual “Conference on Population.” The conference, organized with the help of the Planned Parenthood Federation of America, was intended from its inception to be a forum to develop a more liberal Catholic position on contraception. In 1965, thirty-seven scholars who attended the conference sent a statement to the Pope that declared “[t]here is dependable evidence that contraception is not intrinsically immoral, and that therefore there are certain circumstances in which it may be permitted or indeed even recommended.” Notre Dame’s President, Father Theodore Hesburgh, later got his friend John D. Rockefeller a secret meeting with the Pope to discuss the problem of overpopulation.

Despite this history, the University has now claimed in its lawsuit that Notre Dame, whoever that is, has a sincere religious belief that the Church’s “centuries’ old teachings” prohibit coverage. This is despite the fact that its own theology students and faculty can’t get their questions answered about what the theological claim for the prohibition of contraceptive coverage is and people like Kathleen Kaveny, a professor of both law and theology at Notre Dame, have argued the legality of the mandate in detail. A further troubling sign from an institution that was once the place for principled discussion of contraception, is that Notre Dame’s website refers students to what appears to be a “Crisis Pregnancy Center.” When I called up the “Women’s Care Center,” they told me they do not actually have doctors on staff or prescribe contraception.

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President Obama: Women Stood for You. Stand With Us and Remove Abortion Restrictions From Your Budget

12:43 pm in Uncategorized by RH Reality Check

Written by Ashley Hartman for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

This election, I was proud to work with many young people to engage our communities and campuses in the issues that impact us. One issue that engaged many young women in the election work I did this year in Ohio was access to health care, especially pregnancy related services, such as pre- and post-natal care, maternity care, and abortion care. Sixty-five percent of 18-to-24 year-olds believe abortion should be legal all or most of the time, which is higher than any other age group. I am lucky to have employer-funded health insurance that allows me to access a full range of preventive services, including all pregnancy-related services.

Sadly, not all women — even women with insurance — have access to these services. Current law unfairly limits insurance coverage for abortion for women with government-funded insurance. This is because federal dollars are withheld from covering a woman’s abortion except in limited circumstance.

It seems unfair to withhold insurance coverage or try to influence a woman’s decisions about whether to end a pregnancy just because of the type of insurance she has. These are decisions best made by a woman, her family, faith and doctor, not politicians.

These laws also put the lives of women at risk. When a woman is pregnant, it is important that she has access to safe medical care. Providing insurance coverage insures she will be able to see a licensed, quality health care provider.

Even if we don’t personally agree with abortion, it is unfair to restrict insurance coverage, or try to influence a woman’s decision about whether to end a pregnancy, just because she has government-funded health insurance.

I care about women in Ohio, which is why I supported Barack Obama. He pledged to ensure all women have access to essential reproductive health care services.

Women and youth voters played a huge impact in Obama’s win this year. Not only did young people, 18-to-24 turn out for the president in 2008, they continued to turn out for him as they entered their late twenties. This demonstrates how important issues such as insurance coverage for abortion are to this generation.

Now my generation must hold Obama accountable to his commitments. That includes urging President Obama to submit a budget to Congress without unfair restrictions on coverage for abortion care. Obama Administration, take note that women will be watching to see if you live up to your commitments to women’s health care.

Using “Religious Liberty” to Hide Religious Overreach

8:12 am in Uncategorized by RH Reality Check

Written by Rabbi Dennis S. Ross for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Birth Control Pills

Photo: Sarah C / Flickr

We have been hearing plenty about “religious liberty” lately. Now let’s see who’s using the term “religious liberty” in a novel way, trying to conceal a campaign of religious overreach.

The issue has to do with the faith-based legal challenges to the Affordable Care Act (ACA). Recently, a Missouri mining and manufacturing holding company, O’Brien Industrial Holdings, filed a lawsuit against the U. S. Department of Health and Human Services.

The lawsuit challenges the ACA employer requirement to include birth control coverage in employees’ health insurance. The American Civil Liberties Union (ACLU), along with the American Civil Liberties Union of Eastern Missouri filed an amicus brief supporting the ACA contraception rule. The brief examines the O’Brien complaint and considers the arguments in light of modern legal history.

Even though O’Brien is a secular business, the company maintains that the birth control rule violates its religious liberty — a claim that does not stand up to deeper examination. First of all, workers earn their employer-sponsored health insurance. The insurance belongs to the worker like any other earned benefit, such as salary and pension; it is as much a worker’s personal property as a pay check — the employer’s religion doesn’t belong there. After all, workers may well have different and personal moral understandings about access to birth control and no judge, politician, or office boss has any business barging in.

Moreover, a look back at recent history shows two things. First, similar laws in New York State and California have prevailed in state-level legal challenges. And second, as described in the ACLU brief, a business cannot use religious liberty as an excuse to practice religious discrimination.

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