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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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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.