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.

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

Cross-posted in partnership with the Colorado Independent.

For further coverage of the treatment of pregnant women in Catholic Hospitals, click here.

"This is not a person." --The Catholic Church

Lori Stodghill was 31-years old, seven-months pregnant with twin boys and feeling sick when she arrived at St. Thomas More hospital in Cañon City on New Year’s Day 2006. She was vomiting and short of breath and she passed out as she was being wheeled into an examination room. Medical staff tried to resuscitate her but, as became clear only later, a main artery feeding her lungs was clogged and the clog led to a massive heart attack. Stodghill’s obstetrician, Dr. Pelham Staples, who also happened to be the obstetrician on call for emergencies that night, never answered a page. His patient died at the hospital less than an hour after she arrived and her twins died in her womb.

In the aftermath of the tragedy, Stodghill’s husband Jeremy, a prison guard, filed a wrongful-death lawsuit on behalf of himself and the couple’s then-two-year-old daughter Elizabeth. Staples should have made it to the hospital, his lawyers argued, or at least instructed the frantic emergency room staff to perform a caesarian-section. The procedure likely would not have saved the mother, a testifying expert said, but it may have saved the twins.

The lead defendant in the case is Catholic Health Initiatives, the Englewood-based nonprofit that runs St. Thomas More Hospital as well as roughly 170 other health facilities in 17 states. Last year, the hospital chain reported national assets of $15 billion. The organization’s mission, according to its promotional literature, is to “nurture the healing ministry of the Church” and to be guided by “fidelity to the Gospel.” Toward those ends, Catholic Health facilities seek to follow the Ethical and Religious Directives of the Catholic Church authored by the U.S. Conference of Catholic Bishops. Those rules have stirred controversy for decades, mainly for forbidding non-natural birth control and abortions. “Catholic health care ministry witnesses to the sanctity of life ‘from the moment of conception until death,’” the directives state. “The Church’s defense of life encompasses the unborn.”

The directives can complicate business deals for Catholic Health, as they can for other Catholic health care providers, partly by spurring political resistance. In 2011, the Kentucky attorney general and governor nixed a plan in which Catholic Health sought to merge with and ultimately gain control of publicly-funded hospitals in Louisville. The officials were reacting to citizen concerns that access to reproductive and end-of-life services would be curtailed. According to The Denver Post, similar fears slowed the Sisters of Charity of Leavenworth’s plan over the last few years to buy out Exempla Lutheran Medical Center and Exempla Good Samaritan Medical Center in the Denver metro area.

But when it came to mounting a defense in the Stodghill case, Catholic Health’s lawyers effectively turned the Church directives on their head. Catholic organizations have for decades fought to change federal and state laws that fail to protect “unborn persons,” and Catholic Health’s lawyers in this case had the chance to set precedent bolstering anti-abortion legal arguments. Instead, they are arguing state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights.

As Jason Langley, an attorney with Denver-based Kennedy Childs, argued in one of the briefs he filed for the defense, the court “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define ‘person’ under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.”

The Catholic Health attorneys have so far won decisions from Fremont County District Court Judge David M. Thorson and now-retired Colorado Court of Appeals Judge Arthur Roy.

In September, the Stodghills’ Aspen-based attorney Beth Krulewitch working with Denver-based attorney Dan Gerash appealed the case to the state Supreme Court. In their petition they argued that Judges Thorson and Roy overlooked key facts and set bad legal precedent that would open loopholes in Colorado’s malpractice law, relieving doctors of responsibility to patients whose viable fetuses are at risk.

Whether the high court decides to take the case, kick it back down to the appellate court for a second review or accept the decisions as they stand, the details of the arguments the lawyers involved have already mounted will likely renew debate about Church health care directives and trigger sharp reaction from activists on both sides of the debate looking to underline the apparent hypocrisy of Catholic Health’s defense.

At press time, Catholic Health did not return messages seeking comment. The Stodghills’ attorneys declined to comment while the case was still being considered for appeal.

The Supreme Court is set to decide whether to take the case in the next few weeks.

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

Robert Bork (Photo: US Government / Wikimedia Commons)

There are few personalities in the legal profession that are divisive as Robert Bork. And, while his name has not often come up this election cycle, his legacy with the Supreme Court and possibility that his vision will shape its future deserves to be discussed.

Bork, who currently serves as the chairman of Mitt Romney’s Justice Advisory Committee, built a career on divisive partisan politics, beginning in 1973 when, as solicitor general, he fired Archibald Cox as special prosecutor to facilitate Richard Nixon’s attempted coverup of the Watergate scandal. In 1987, then – president Ronald Reagan nominated Bork to the Supreme Court. Bork’s nomination went down in flames as the Senate rejected him by a vote of 58 to 42, the largest margin in American history.

Bork’s candidacy was largely rejected because of his strong opposition to civil rights and women’s reproductive freedoms. Bork flat – out rejects the idea of a constitutional right to privacy, believes both Griswold v. Connecticut and Roe v. Wade were wrongly decided and thinks there is no such thing as gender discrimination under the law. While those views are what tanked his nomination, they’ve managed to find a place in the jurisprudence of the high court still, proving the tenacity of the Bork legacy.

Bork’s failed Supreme Court nomination paved the way for Anthony Kennedy’s confirmation. At the time Kennedy was considered a moderate to Bork’s extreme-right positions, but civil rights advocates have come to understand that was not the case. Perhaps no single Supreme Court justice has had the effect of effectively undoing the protections granted women through the Griswold and Roe decisions as Kennedy. In many ways, it didn’t matter that Bork’s nomination failed to be confirmed by the Senate because the very act of airing his extremist views managed to move the pendulum far enough to the right to pave the way for Anthony Kennedy’s ascendance to the high court and later Clarence Thomas.

In fact, without Bork’s nomination justices like Thomas and Samuel Alito would hardly be possible. After all it was as an appellate court judge that Alito embraced the idea of spousal consent as failing to create an undue burden on a woman’s right to chose in a decision the Supreme Court would later largely affirm in Planned Parenthood v. Casey.

To that end, Bork’s legacy on the Court is very much alive today, and should Romney succeed in his quest for the presidency, that legacy will be cemented in future Supreme Court nominations. As it stands the Court is at best a mere one vote away from a majority that would overturn Roe together, if it is not there already. If Robert Bork has his way, the gains made by women and racial and political minorities will be undone within this decade.

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.

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

Last year’s historic decisions upholding the constitutionality of the Affordable Care Act and striking as unconstitutional most of Arizona’s “papers please” immigration law set the tone for what promises to be an even more exciting and historic 2012-2103 term at the high court.

The term, which begins today, Monday, October 1, already promises a handful of marquee cases, including a direct challenge to affirmative action in the case of Fisher v. University of Texas. In 2003, the Supreme Court ruled in two separate but parallel cases — Grutter v. Bollinger and Gratz v. Bollinger — that universities have a compelling interest in creating a diverse student body and that they may consider race as one factor, among many, in deciding which students to admit. In 2005, after those cases were decided and in an effort to increase diversity of its student body, the University of Texas adopted an admissions program that was modeled in part on the Michigan program the Supreme Court had upheld in those decisions and as a supplement to its Ten Percent Plan — which automatically admitted the top 10 percent of each high school graduating class. The shift was based on the assumption that, de facto, most Texas schools are still segregated.

Abigail Fisher, a white student who was not in the top ten percent of her class, was denied admission to the school and challenged the policy by arguing that the court erred in looking at race as a factor in her admission decision. Now the Roberts Court will decide the case, a fact that makes many affirmative-action defenders anxious since the Chief Justice is on record as opposing any kind of policy that is not “race neutral” across the board.

The other sure-thing case before the Court is Kiobel v. Royal Dutch Petroleum, a case the Court will hear on the first day of arguments. In that case the Court will consider whether Congress intended the Alien Tort Statute, a law that says non-citizens can sue American corporations in American courts for conduct of those corporations abroad, to also hold American corporations accountable for human rights abuses committed abroad. The Kiobel challenge gets to the very heart of the law by questioning whether individuals who suffered severe human rights abuses abroad can sue those responsible for the abuses in the United States or whether those individuals are stuck with the laws and jurisdiction of where the abuses took place. If there’s been one consistent theme from the Roberts Court it is the expansion of corporate rights at the expense of individual rights and Kiobel looks to be another case that may cement that theme at a time when corporate accountability abroad is needed now more than ever.

There are two other big issues likely to come before the Court this term: marriage equality and a challenge to the Voting Rights Act. The question is how they get before the Court because that answer will tell a lot about how the Court will likely rule.

E.J. Graff has a great overview on the various challenges to the Defense of Marriage Act (DOMA) working their way up to the Court, as well as the challenge to California’s Prop 8. Which case the Court decides to hear will make all the difference in outcome, because Supreme Court law all depends on the way an issue is framed. There are five challenges to DOMA from which the Court could chose; each are limited in their scope and framing and each places the issue of same-sex marriage in the context of federal power. Specifically, the DOMA challenges ask: Does the federal government have the right to pick and choose which state marriages it recognizes without violating the equal protection guarantees of the Constitution?

In many ways that’s an easier question to frame for a conservative-leaning court than the question at the heart of the Proposition 8 challenge: Do same-sex couples have a fundamental right to marry under the Constitution? The Roberts Court has been outright hostile to the idea of any kind of fundamental rights, and would undoubtedly see this as an expansion of constitutional access, something the most strident of its justices have made a career trying to prevent. If the Court decides to hear Perry v. Brown in an effort to answer this question it could spell bad news for marriage equality.

Similar to marriage equality the Court has several avenues to attack the constitutionality of the Voting Rights Act (VRA). First is the possibility of the Court agreeing to review Shelby County v. Holder, a case where the Department of Justice objected to changes in Alabama voting law on which the DOJ has since backed off, or through several other challenges to the VRA in the appellate courts from Florida and Texas.

Each of the possible challenges question Section 5 of the VRA which requires the federal government to “pre-clear” any changes to election laws in certain jurisdictions with a history of racial discrimination. In an earlier voting rights challenge Chief Justice Roberts questioned the constitutionality of Section 5 but did not rule on it outright. This term may give him a chance to strike one of the most important achievements of the modern civil rights statutes.

There are a handful of other important questions the Court will also answer with regard to the rights of criminal defendants, and with a future challenge to Roe v. Wade only a year or two away at most, history may look at the Roberts Court as the conservative response to the great progressive days of the Warren Court. At least that’s how it is shaping up right now.

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

(photo: ge'shmally / flickr)

At its most basic level, the decision in Roe v. Wade guaranteed women in every state the right to chose an abortion. Usually the impact of the decision is discussed in the context of expanding rights of women in states that had previously criminalized abortion care. But some states, like Illinois, actually provide greater privacy protections for women than recognized in Roe and later Planned Parenthood v. Casey. So what happens when a legislature passes an abortion restriction that may be in line with federal precedent but conflicts with state constitutional protections? We’re about to find out.

In Illinois, pregnant minors generally enjoy the same rights to consent to medical care as adults do. That means they can make nearly every decision concerning the pregnancy without parental involvement. Pregnant minors can also consent to place their child up for adoption without parental notification, involvement, or consent. In fact, throughout the entire course of her pregnancy, a minor can access and consent to a panoply of care without her parents involvement — unless of course she wants to terminate that pregnancy. Then, and only then, does the state of Illinois require a pregnant minor to notify her parents.

Under the Consent by Minors to Medical Procedures Act, abortion is singled out for parental notification prior to treatment, requiring that “physicians or his or her agent” to give “at least 48 hors actual notice to an adult family member of [a] pregnant minor…of his or her intention to perform the abortion.” Those doctors who fail to abide by the notification provision face professional discipline and civil penalties. The law also contains a judicial bypass provision that requires the minor to appear before a circuit court judge and demonstrate, by a preponderance of the evidence that: (1) she “is sufficiently mature and well enough informed to decide intelligently whether to have an abortion, or (2) that notification under Section 15 of [the] Act would not be in the best interest of the minor.

The law has a long and tortured legal history. Passed in 1995, it has been enjoined for the last seven years while challenges to the law’s constitutionality proceed. At one point the case was dismissed on the grounds that federal law holds parental notification statutes do not pose an undue burden on a right to chose abortion. After more appeals the matter is now before the Illinois Supreme Court and should the court side with the challengers, Illinois could become an example of states offering broader protections to abortion rights than at the federal level.

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Written by Amie Newman for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

The third day of the Kagan hearings included questioning on everything from the Defense of Marriage Act (DOMA) to education spending to abortion. But the Republicans stuck with one issue in particular: the fact that Harvard Law School abided by its own anti-discrimination policy to ensure that any potential employer recruiting at the law school did not discriminate on the basis of gender, ethnicity, sexual orientation, or race. The specifics in question had to do with Kagan, who was the Dean of Harvard Law School at the time, deciding to protect the rights of LGBT students to not be discriminated against by the United States military through the Don’t Ask, Don’t Tell policy. Kagan reminded senators and representatives that, in fact, the U.S. military was wholly able to recruit – even at Harvard Law School – just not through the law school’s Office of Career Services.

Still, Senator Graham (R-SC) had a bizarre analogy for Kagan, asking her, "If the Catholic Church wanted to recruit from the law school would you prevent them because they don’t have female priests?"

Though the committee seemed not to be able to let this line of questioning go, both Democrats and Republicans calling into the C-span phone lines expressed annoyance with the committee’s insistence on pursuing. Kagan, however, announced, "The anti-discrimination policy regarding military recruitment at Harvard Law School was meant to support LGBT students."

Women’s health and rights popped up, of course, and Republicans wasted no time in getting to the heart of the matter by bringing up the (still, after all the years we’re using this meaningless, politically charged term!) partial-birth abortion ban and it’s related Supreme Court case which upheld the law, Gonzalez v. Carhart.

Kagan called this an "incredibly difficult issue" but did not waver from what she termed her responsibility to the American public and President Clinton during her time at the Clinton White House, when she was charged with helping inform and provide, according to her, "the best medical evidence on the issue" to President Clinton regarding the partial-birth abortion ban. Kagan told Senator Orrin Hatch, during his line of questioning, that the president believed partial-birth abortion should be banned, available only when necessary to save the life of or prevent serious health consequences to the mother. In gathering "the best medical evidence possible," she relayed, to President Clinton, a memorandum from the American College of Obstetricians and Gynecologists (ACOG) on the issue. In question, during the hearings on day three, was the fact that the initial draft of the memo included only one of the two key ACOG statements, and Kagan’s discussions with ACOG to ensure both key statements were included.

ACOG’s statements on this particular abortion procedure were two-fold. The first being that, in ACOG’s view, "they couldn’t think of a circumstance in which this procedure was the only procedure that could be used, but second, on the other hand, that they could think of circumstances in which it was medically the best or most appropriate procedure with the least risk in terms of preventing harm to the woman’s health."  However, when the memo was offered to the White House initially, it included only the fact that it wasn’t the only abortion procedure available, without mentioning that crucial "other" fact – that it may be the one that actually prevents harm from being done to the woman.

Everyone from Senator Graham to Senator Coburn pressed Kagan on why she asked ACOG to revise the memo to include both statements, attempting to get at an instance where Kagan’s personal belief system "interfered." Senator Graham called this,"…advocating for how partial-birth abortion would be communicated to President Clinton." While Senator Coburn pressed Kagan on the fact that the memo came directly from her and so, it was assumed, reflected her views on the issue. Kagan noted that, in fact, her only desire was to ensure the ACOG memo accurately reflected both of their positions in regards to partial birth abortion, "I was concerned that ACOGs language did not accurately reflect what their views on the issue were."

In a moment of pure, unadulterated irony (one apparently missed-by-Hatch), Hatch was actually stunned by what he saw as "the politicization of science…an instance where political objective trumps a medical organization left to its own scientific inquiry." 

Senator Amy Klobuchar (D-MN) offered a few moments of clarity when it was her turn to question Gen. Kagan. Responding to earlier statement by Senator Coburn as he waxed nostalgic about a time, 30 years ago, when Americans were apparently "more free," Klobuchar reminded Coburn and the American public of a few quick facts:

• In 1980, while the number 1 song was Blondie’s "Call Me", do you know how many women sat on the U.S. Supreme Court? Zero.
• Thirty years ago, when "Americans were more free", how many women were sitting on the judiciary committee? Zero.
• Thirty years ago, when "Americans were more free", how many women were in the United States Senate? One. 

In fact, Klobuchar reminds Coburn, "freedom is in the eye of the beholder." It was a good opening, however, for Klobuchar to question Kagan on her time as Dean of Harvard Law School and what Kagan might do to address disparities for women in this country. Kagan admitted the disparities at Harvard and at law schools around the country; namely that while 50 percent of the student body at the law school was/is made up of females, very few actually assume leadership roles.

Kagan admitted, "In law firms, women don’t have the kind of – there’s not the diversity that anybody would want. I think people are trying hard to make that diversity happen. It’s not a matter of bad faith but I think there are structural obstacles. It’s hard to balance work and family, harder than it is for a man. We need to enable women to manage those balances, the desire to have a fulfilling professional life and a wonderful family life, to manage the balance better and create the structures to enable them to do so."