You have asked us to describe some of the current issues surrounding conscientious objections to the funding of contraceptives through employee and student health insurance benefit plans. In particular, you have asked us to describe the general considerations confronting Catholic institutions that seek to comply with their understanding of their obligations under Ex corde Ecclesiae and Roman Catholicism generally.
We emphasize at the outset that this is not legal advice, and no one should treat it as such. Nor are we presuming to give religious or theological advice.
We also note that it is not only those Catholic institutions that conform in all respects to the most obvious reading of Ex corde Ecclesiae, canon law, or any other source of church authority that enjoy religious liberty under the law. At least since Thomas v. Review Board, 450 U.S. 707 (1981), it has been clear that it is the specific religious beliefs of the person or institution before the Court that determine the extent of conscience protection afforded by civil courts. The legal analysis that follows is therefore belief-neutral.
Introduction
The issue of contraceptive mandates is a new one for most Catholic institutions. The trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP). After FEHBP—the largest employer-insurance benefits program in the country—set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.
The trajectory of state law and the Equal Employment Opportunity Commission’s (EEOC) recent interpretations of Title VII and the Pregnancy Discrimination Act (PDA) pose serious threats to the conscience rights of Catholic employers who believe that they cannot fund employee prescription contraceptives without contradicting fundamental tenets of their faith. Should this trend continue, many Catholic institutions will not be able to comply with state law and the PDA while remaining true to their religious convictions. As a result, Catholic institutions might be compelled to suspend, or significantly restrict, the prescription health care benefits available to their employees.
Failure to exclude objecting Catholic entities from the requirement to provide contraception constitutes an abandonment of the government’s responsibility to protect against threats to the moral integrity of a large class of its citizens. What is at stake is therefore the right of an objecting Catholic college to remain “authentically Catholic” by its own lights.
Overview of Governing Law
Catholic employers are no doubt familiar with Title VII, the primary federal law addressing employment discrimination. Title VII prohibits “discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin….” Title VII exempts religious organizations and institutions from its provision on religious discrimination, but does not exempt them from its provisions on gender discrimination.
Title VII defines discrimination “on the basis of sex” to include discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions;” and specifies that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work….”
This part of Title VII, commonly known as the Pregnancy Discrimination Act (PDA), was added by Congress in 1978 in response to a Supreme Court decision holding that an employer ’s selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII. The PDA specifies that it “shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion.” The PDA does not define abortion, and makes no mention of contraception.
In 2000, the EEOC issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the PDA. Although this opinion is not binding on federal courts, it is influential, since the EEOC is the government body charged with enforcing Title VII. This opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives. The first federal court decision in one of these cases—Erickson v. Bartell Drug Co.—came less than a year after the EEOC opinion, and agreed that employers with prescription drug plans have “a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes.” The Supreme Court has not ruled on the issue of contraceptive coverage. But, since Erickson, new Title VII claims have been brought against Catholic institutions that did not provide contraceptive coverage.
Current State Laws Concerning Insurance Coverage of Contraceptives
While virtually all insurance plans include coverage of prescription drugs, employers can opt to exclude coverage of the range of U.S. Food and Drug Administration (FDA)- approved prescription contraceptive drugs and devices. To counteract this policy, in the past two decades, 27 states have enacted laws to require insurers that cover any prescription drugs at all to cover all FDA-approved contraceptive drugs and devices. Furthermore, 16 of these states have mandated coverage of related outpatient services. Such state laws regulate college and university health plans for students as well as employees.
Catholic institutions are afforded limited protection in 15 of the 27 states. These states have enacted conscience protections that allow institutional employers or insurers to exclude contraceptive coverage on religious or moral grounds. Under such provisions, a Catholic college or university may be able to exclude contraceptive coverage from its employee health plan. (However, the conscience protections do not extend to health plans offered by a college or university to its students.)
The state exemptions ordinarily allow entities to opt out if covering contraception would interfere with the employer ’s “religious tenets” (e.g., Hawaii and North Carolina), “bona fide religious tenets” (e.g., Connecticut), or “bona fide religious beliefs and practices” (e.g., Maine and Maryland). Among the states that have enacted these mandates, Missouri is the most protective of conscience, allowing any employer to refuse coverage, regardless whether the motivation is based on religion or other ethical principle. The objections of Catholic institutions to covering contraception should meet any of these state standards, since Catholic institutions that object to contraception, sterilization, and abortion as “intrinsic evils” can invoke a number of doctrinal statements expressing the value and dignity of human life from conception and the sacredness of the marital act open to procreation.
More complicated, however, is how the state laws define the religious employers to be exempted under their conscience provision. Some states do not define the term “religious employer ” at all, which could permit any institution that self-identifies as religious to claim the exemption. In North Carolina, for example, a religious employer is a non- profit organization whose purpose is to advance the “inculcation of religious values” and whose employees primarily “share the [employer ’s] religious tenets.” Thus, in North Carolina and states employing similar language, Catholic colleges would ordinarily be exempted. Hawaii’s statute is similar to North Carolina’s, although it also affords protection to nonprofit organizations that are owned or controlled by a religious employer, as long as the organization “primarily employs persons who share the religious tenets of the entity.” In New York and California, among others, the term “religious employer ” is interpreted so as to exempt Catholic churches themselves, but not the various organs of the Catholic Church such as Catholic Charities, or Catholic hospitals, colleges, universities or nursing homes.
Catholic colleges are subject to the overlapping jurisdictions of the state and federal governments; a fact that complicates approaches to benefits decisions. For example, fully-insured health plans, such as those extended to employees and students of most colleges and universities, are governed by both federal and state law. Self-insured employee health plans, by contrast, are governed exclusively by federal law under ERISA. However, this federal preemption of state mandates under ERISA affects employee health plans only; student health plans remain subject to state regulations despite an institution’s decision to self insure.
Since the PDA is federal law, a religious exemption to the PDA would be ineffectual in protecting religious employers in the 27 states that require contraceptive coverage. An exemption to the PDA would only affect those religious institutions that are able to provide self-insurance programs (that are subject to Federal ERISA) or in the minority of states that have not mandated contraceptive coverage.
Trends in the Law
The law governing contraceptive mandates has seen much change in recent years. One of the most far-reaching state contraceptive mandates was enacted earlier this year in Wisconsin. As of January 2010, Wisconsin will require all providers of health insurance to include contraceptive services, irrespective of religious affiliation, moral objection, or category of “religious employer.” The Roman Catholic bishops of Wisconsin issued a statement in response, decrying “this blatant insensitivity to our moral values and legal rights.” The new mandate will have direct impact on all objecting Catholic institutions and dioceses, except for the few that have the size and wherewithal to self-insure for their employees.
The Wisconsin law is the latest iteration of a growing body of state law that rejects conscientious objections to contraceptive mandates. For instance, in 2004 the California Supreme Court held that Catholic Charities was required to cover contraceptives under their fully-insured employee health plan in order to comply with California’s Women’s Contraceptive Equity Act (WCEA). See generally Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004).
The reasoning in Catholic Charities of Sacramento was followed in New York, where the state’s highest court affirmed a decision that Catholic Charities was not a “religious employer ” for the purposes of a religious exemption to the state mandate on contraceptive coverage. Part of the intermediate appellate court’s explanation for overriding Catholic Charities’ Free Exercise claims was that “the paramount right of personal health…of many employees who do not share plaintiffs’ views on contraceptives would be subordinated to plaintiffs’ right to freely exercise their beliefs.” This reasoning manifests the courts’ and legislatures’ recent tendency to treat government as the guarantor of a limited set of state-defined benefits—even at the expense freedom of conscience—rather than as the protector of the liberty and integrity of persons.
If other state courts follow the reasoning of the California and New York courts, then state contraceptive mandates will affect Catholic institutions in every state where state law does not provide conscience protections.
There is similar uncertainty with respect to the EEOC’s claim that the PDA provides for a contraceptive mandate for employers. Lower courts have split over whether Title VII, as amended by the PDA, compels insurance coverage for contraceptives. Compare Cummins v. Illinois, No. 2002-cv-4201-JPG, 2005 U.S. Dist. LeXIS 42634 (S. D. Ill. 2005) (employee health plan does not violate Title VII if both men and women are denied contraceptive coverage); Alexander v. American Airlines, Inc., 2002 WL 731815 (N.D.Tex. 2002) (“[b[y no stretch of the imagination does the prohibition against discrimination based on ‘pregnancy, childbirth, or related medical condition[s]’ require the provision of contra- ceptives.”) with Erickson, 141 F. Supp. 2d 1266 (failure to provide contraceptive coverage violated the PDA); Stocking v. AT&T Corp., 436 F.Supp.2d 1014 (W.D.Mo.2006) (same); Cooley v. DaimlerChrysler Corp., 281 F.Supp.2d 979, 984-85 (E.D. Mo. 2003) (same); Mauldin v. Wal-Mart Stores, Inc., 2002 WL 2022334 (N.D. Ga. 2002) (same).
Although the federal district courts have split over the issue of whether the PDA requires employers to provide contraception, the only federal court of appeals to reach the issue held that the PDA did not include a contraceptive mandate. In 2007, the Eighth Circuit Court of Appeals ruled that contraception was not sufficiently “related to” pregnancy to fit under the umbrella of the PDA. See In re Union Pacific Railroad, 479 F.3d 936 (8th Cir. 2007). Specifically, the court grounded its opinion on the fact that contraception itself is “gender-neutral” and the plain language of the PDA statute did not refer to contraception. An employee health insurance plan, therefore, did not violate the PDA by failing to include contraception coverage. Since the court ruled the employer ’s decision not to cover contraceptives did not involve a “sex classification,” it could not be categorized as a sex-based violation of Title VII.
Given the relatively recent vintage of the EEOC’s interpretation (2000) and the mixed court rulings so far, it remains an open question whether federal law, like some state laws, will impose a contraceptive mandate on objecting Catholic colleges and institutions.
Legal Defenses for Catholic Colleges and Universities
Catholic institutions with objections to contraceptive mandates are not wholly without legal options, even in the face of federal or state law. There are two main kinds of legal defenses that Catholic colleges can raise in response to federal- or state-imposed contraceptive mandates.
First, there are various defenses arising from the federal Constitution or state constitutions that objecting Catholic institutions may be able to employ to defend against contraceptive mandates. Colleges may have recourse to state constitutional language and the First Amendment of the U.S. Constitution, which preserve free exercise of religion. Colleges may also raise defenses rooted in the constitutional doctrine of “church autonomy,” which protects internal church affairs on matters of theology and ecclesiastical governance from government interference.
Despite these constitutional guarantees, Catholic institutions will have to be prepared for arguments stemming from the Supreme Court’s decision in Employment Division v. Smith. In Smith, the Supreme Court announced that the First Amendment’s free exercise clause “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,’” simply because “the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” In other words, the fact that an act infringes on the religious beliefs or regulates the religiously motivated policies of a Catholic institution does not necessarily make the law unconstitutional. This is because, as the New York and California courts have asserted, their state contraceptive insurance mandates “apply neutrally and generally to all employers, regardless of religious affiliation, except to those few who satisfy the statute’s strict requirements for exemption on religious grounds.”
In New York and California, “those few” may not include Catholic colleges. Nonetheless, objecting Catholic institutions can argue that the definition of a “religious employer ” for purposes of a statutory exemption should comprehend Catholic colleges with a strong Catholic identity, since there is a very strong argument that the mission of a Catholic college is “to inculcate religious values.”
That said, any constitutional defense will necessarily vary with both the location and the circumstances of the particular Catholic institution affected. Therefore experienced constitutional counsel should be consulted at the earliest opportunity.
Second, Catholic institutions can raise various statutory defenses to contraceptive man- dates. These include federal and state “Religious Freedom Restoration Acts,” as well as various anti-discrimination statutes. These laws typically protect against (a) religious discrimination and (b) “substantial burdens” on religious exercise, without regard to whether the government intended to discriminate. However, in the context of an EEOC action, the EEOC is likely to argue that statutory religious discrimination defenses do not trump gender discrimination claims made under the PDA. Moreover, since state religious freedom laws (including state constitutions) do not protect against action by the federal government, PDA claims brought by the EEOC would be relatively difficult to defend against on that basis.
Catholic institutions should be aware that all of these protections—constitutional and statutory—are subject to the requirement that the religious institutions’ claims be sincere, or “bona fide.” Although the courts will not delve into the reasonableness of a religious belief, they are competent to judge whether a belief is “sincerely held.” Insincere religious beliefs enjoy neither constitutional nor statutory protection. For example, a prison inmate who requests to be served a vegetarian diet for religious reasons but who nonetheless buys hot dogs from the commissary cannot invoke free exercise protections because his behavior appears to be insincere. In the context of Catholic colleges and universities, first acting inconsistently with the school’s religious identity and then later claiming a religious exemption (after a lawsuit has been filed) is unlikely to succeed.
As with the constitutional defenses, there is no one-size-fits-all legal strategy to law- suits attempting to impose contraceptive mandates on Catholic institutions. Therefore the key to raising a successful defense will be to involve competent counsel at an early juncture.
Areas of Consideration for Catholic Colleges and Universities
Depending on the state legislative developments and the outcome of future litigation over the scope of the PDA, objecting Catholic institutions may have to resort to creative arrangements to balance treating their employees and students justly and remaining faithful to their principles. Some possible courses of action and recommendations are outlined below:
Eliminating Prescription Drug Benefits Altogether. This option was proposed by the New York Court of Appeals in Catholic Charities of Albany, but has obvious drawbacks, including burdens on students, employees and their families who require prescription drugs. It would also likely present objecting Catholic institutions with the dilemma of reconciling Catholic teaching on living wages for workers with their beliefs about facilitating contraception, sterilization, and abortion.
Eliminating prescription drug benefits altogether may be a more appealing option for student health insurance plans (rather than employee plans). Already, student plans tend to be less comprehensive than employee plans; students are typically offered a choice among different plans with varying levels of benefits. Because basic student plans, or “catastrophic plans,” usually exclude prescription drugs or “out- patient treatment” altogether, these plans would not be obligated to provide “family planning services” under state mandates. Moreover, unlike a university employee, a student pays an additional fee for health coverage offered by the university. Thus, a student who desires prescription health benefits can simply opt for a private health plan instead of the university plan. Although the student might have to sacrifice convenience, a Catholic college might decide this is an acceptable compromise.
Attempting to “Out-source” Contraceptive Coverage. Another way that some Catholic institutions, principally health care systems, have dealt with mandated contraception coverage is by attempting to distance themselves from the actual provision of benefits. According to a 2000 report of “Catholics for a Free Choice,” more than half of managed care plans adopted by Catholic health systems have found “creative approaches” to contract at arm’s length to meet the state requirements and joint federal-state Medicaid mandate that entitles Medicaid recipients to family planning services and supplies. Some of these Catholic employers have attempted to distance them- selves from providing this coverage by separating out the amount of the premium that would be used to cover contraception and contracting with a third-party administrator to handle payment. Others contract with an independent insurance company to handle coverage of those services.
This approach would have the disadvantage of putting many religious institutions and individuals into a quandary of conscience. Such arrangements would also make it much more difficult for Catholic institutions to invoke religious freedom protections against facilitating access to morally objectionable services in other contexts, because plaintiffs would likely argue that the outsourcing arrangements contradict the institution’s claimed beliefs.
Form self-insurance pools. Another option may be for Catholic institutions to pool their benefits and liabilities in such a way as to self-insure. This strategy would allow Catholic employers to escape restrictive state laws styled after Wisconsin’s recent mandate, but would not protect against federal laws or EEOC action. However, converting from insured to self-insured has larger consequences than protecting against state law prescription contraceptive mandates. For instance, self-insuring would ex- pose the religious employer to financial risk whenever high-cost claims are filed.
Be consistent in policy decisions and in media communications. A Catholic institution must be careful to ensure that all of its members’ actions are consistent with the values it espouses. Recent history amply demonstrates that religious institutions will be charged with hypocrisy, and incur civil liability, if they do not act consistent with their beliefs. Similarly, all media communications need to be consistent with the actual values of the institution. A civil court will be much less inclined to believe assertions of sincere conscientious objection if the institution has not been consistently acting and communicating in accordance with its claimed beliefs.
Make clear—externally and internally—what one’s institutional values are. It is crucially important that the administration of a Catholic institution state publicly and privately what moral precepts it intends to follow and why. Many religious institutions have seen religious freedom defenses fail because the institutions failed to assert their values openly, vigorously, and consistently. Catholic institutions also run the risk of liability if they fail to explain in detail why they believe what they do. Rooting benefits policies in specific Church doctrines makes clear where the institution stands, and that it is sincere. Sound theology can be a sound defense, even in civil court.
Don’t carelessly discuss finances and costs of health insurance. Colleges and universities often take a business-like approach to certain decisions, even when there are underlying religious principles at stake. Make sure that the written record of any decision regarding benefits reflects the religious principles motivating the decision. Plaintiffs seeking to defeat a religious freedom defense often argue that denying certain benefits is “just about the money.” Don’t give a civil court reason to believe them.
Seek legal advice at the earliest opportunity. Every legal situation is different, and religious freedom issues can be particularly tricky in any state. Catholic institutions should get expert legal advice as soon they find out about a challenge to their benefits practices. Waiting to get legal advice until later often leads to mistakes that can be difficult to unwind.
Responding firmly. As the analysis above shows, objecting Catholic institutions have legal options. Immediately accommodating a potential plaintiff once he or she com- plains often results in only temporary appeasement and additional requests later. It is frequently better to respond firmly at the outset than to accommodate and merely delay the inevitable conflict until later.
Conclusion
The next few years may present difficult times for Catholic colleges and universities that have conscientious objections to contraceptive mandates. However, there are a number of ways Catholic institutions can continue to carry out their missions while minimizing the threat of government penalty. They should not be afraid to do so.
Contraceptive Mandates and Immoral Cooperation
/in Mission and Governance Employee Benefits, Research and Analysis/by Dr. Marie HilliardAs the largest provider of nongovernmental, nonprofit health care in the United States, Catholic health care is susceptible to being viewed as just another secular institution engaged in the welfare of the larger society, and at its behest. Those who wish to deny the ministerial nature of Catholic health care have capitalized on this misperception for their own political agendas. Advocates for abolishing sexual mores, for providing abortion on demand and for redefining the human being as a bearer of rights have engaged political structures in their pursuit of reshaping Catholic health care in their own image. They have made some subtle and some blatantly obvious attempts at changing the public perception of the purposes of Catholic health care. These have escalated into legislative initiatives that attempt to force Catholic health care to violate the tenets of the Catholic Church in the delivery of health care.
First, there is a need to correct the misperception that the delivery of health care is a secular endeavor. The Christian woman Fabiola, who established a hospital in Rome around the year 390, was the earliest forerunner of today’s nurse. Her decision to dedicate her wealth and her life to the care of the sick poor was grounded in her Christian faith. St. Benedict founded the Benedictine nursing order, based on the Christian ethic, around the year 500. The very names of the oldest foundations of health care, which continue to exist today—including the Hotel-Dieu in Paris, founded in 660—reflect the religious tradition of health care delivery. A structure for the delivery of nursing care was created by the Christian religious order the Hostpitallers of Saint John of Jerusalem in 1113. This historically is considered to be the first organized structure for the delivery of health care. The first identified nurse in the territory that was to become the United States was Catholic friar Juan de Mena, from Santo Domingo of Mexico. He arrived on the shores of the southern Texas coast in 1554. The friar was known for his humility and his charity toward the sick.
The second oldest public hospital in continuous existence in the United States, Charity Hospital in New Orleans (1736), despite being a public hospital, was under the administration of the Daughters of Charity from 1834 to 1970. The oldest hospital west of the Mississippi was established in St. Louis, Missouri, in 1828 by St. Elizabeth Seton’s Sisters of Charity. Today, through the centuries of initiatives to apply the Gospel imperatives in the service of neighbor, Catholic health care is the largest provider of nongovernmental, nonprofit health care in the United States. With this stunning history of health care in the ministry in the Catholic tradition, it is disingenuous to identify Catholic health care as a secular function of society. Yet, state by state, there have been legislative initiatives to define Catholic health care ministries as secular endeavors, not protected by the free exercise clause of the First Amendment of the United States Constitution.
The Secular Redefinition of Catholic Health Care
The escalation of legislated health care mandates illustrates this trend to secularize Catholic health care. (See the regularly updated “Table of Legal Mandates State by State” at www.ncbcenter.org.) The majority of states mandate that contraceptive coverage, including prescription drugs and devices, be included in employee insurance plans that offer prescription coverage. Of these mandating states, few provide a true religious or conscience exemption. Increasingly states are mandating the administration of emergency contraception in emergency departments to victims of sexual assault, even when there is an indication that the medication would function as an abortifacient. Only in rare cases are states providing conscience exemptions for the health care agency. Pharmacists have been more successful in securing refusal provisions that protect them from having to violate their consciences in the dispensing of emergency contraception. Increasingly, however, they have had to seek court injunctions to protect their rights of conscience.
Of significant concern is the redefinition, in statutes or through the courts, of a religious employer. Arizona, Arkansas, California, Hawaii, New York, North Carolina and Oregon are examples of states which have narrowly defined a religious employer to include only nonprofit agencies (which would include Church ministries) that serve or employ primarily members of their own faith (which would not include the majority of Church ministries). Here rests the example of a revisionist’s view of the role of religion in society and the protections that should be provided to religious entities.
To define a religious employer as primarily hiring or serving its own members is the antithesis of the historical role of a religious ministry. The classic example of this can be seen in the parable of the Good Samaritan (Luke 10: 29-37). In defining who is one’s neighbor, who we are to love as we love ourselves, Jesus tells a young legal scholar the story of the compassionate Samaritan who, unlike a priest and Levite, stopped and ministered to a man who was beaten and robbed along the road to Jericho. The Samaritans were despised by the Jews. Jesus asks, “Which of these three, in your opinion, was neighbor to the robbers’ victim?” The scholar answers, “The one who treated him with mercy,” and Jesus tells him to “go and do likewise.” Church ministries answer this call. They are not created to be self-serving and self-employing, but to care mercifully for those in need, regardless of their religion, ethnicity, gender, social status, vocational or marital status, or ability to pay. History supports this purpose of Church ministry.
Furthermore, Church hiring practices are based on the ministry being provided. In a Catholic school, where beliefs are imparted to the next generation, teachers of certain disciplines may be required to be Catholic. For the majority of ministries, competence in and adherence to the mission of the ministry are the usual criteria for employment. Finally, there are no client eligibility conditions (such as conversion to the Catholic faith) applied to recipients of Church ministry. However, states such as New York and California require that to be considered a religious employer one must have as a purpose the inculcation of religious values. It would be very interesting to see the response of state legislatures if Church ministries attempted to apply the very criteria that these legislatures have stated define a religious ministry: that is, for a Catholic hospital to hire only Catholic workers and to treat only Catholic patients, or those willing to be evangelized in the faith.
Not only have state legislatures redefined Church ministries, but so have the courts. In 2006, the New York State Court of Appeals, by a unanimous vote, upheld two lower court decisions requiring the Church to include contraceptive drugs and devices (including abortifacients) in their employee prescription drug plans. Religious or faith-based ministries may be exempted only if they evangelize, and employ and provide services primarily to their own members. Thus, while employers of Catholic schools and chanceries may be exempted, most other ministries may not be. In the decision, it was evident that what was viewed as the need to remedy a bias against women took precedence over the rights of people of faith. In considering the constitutionality of the narrow legal definition of a “religious employer,” the justices acknowledged the reasoning of the New York legislature: “Those favoring a narrower exemption asserted that the broader one would deprive tens of thousands of women employed by church-affiliated organizations of contraceptive coverage. Their view prevailed.”1 In other words, the pro-contraception/pro-abortion agenda prevailed over religious freedom. This agenda was supported by the New York State Court of Appeals: “Finally, we must weigh against plaintiffs’ interest in adhering to the tenets of their faith the State’s substantial interest in fostering equality between the sexes, and in providing women with better health care.”2
A similar bias was demonstrated by the Supreme Court of California. This court concluded that the California legislature did not violate the “free exercise [of religion] clause” of the California Constitution when mandating that Catholic Charities of Sacramento include contraceptive drugs and devices in its employee prescription coverage plan. The justices found that it is within the legislature’s competence to identify subtle forms of gender discrimination, by which they referenced discrimination based on pregnancy, childbirth or related medical conditions: “Certainly the interest in eradicating gender discrimination is compelling. We long ago concluded that discrimination based on gender violates the equal protection clause of the California Constitution… and… triggers the highest level of scrutiny.”3 Again, the pro-contraception/pro-abortion agenda prevailed over religious freedom.
The First Amendment of the U.S. Constitution states that Congress will make no law respecting a religious establishment. However, it immediately follows with a prohibition against violations of the free exercise of religion. These provisions have been described as the separation of church and state. However, no other concept of constitutional protections has been more misunderstood or misused by those with their own political agendas. The constitutional scholar Stephen Carter addresses this misperception: “For the most significant aspect of the separation of church and state is not, as some seem to think, the shielding of the secular world from too strong a religious influence; the principle task of the separation of church and state is to secure religious freedom.”4
Clearly, there has been a redefinition by the courts of the meaning of the First Amendment since its adoption in 1791. The mandate for demonstrating a prevailing state interest before passing a law that infringes on a religious freedom has been marginalized. When rights conflict (as in this case), the balance has tragically shifted from religious freedom to “reproductive rights.” In the Oregon v. Smith decision in 1990, public employees who smoked peyote as part of a religious ritual were held to not be protected by the free exercise clause of the First Amendment.5 The impact of the decision is that the state has no obligation to demonstrate a prevailing state interest if a legal mandate or prohibition is applied to all persons. This negates the very purpose of the free exercise of religion clause. As Carter states, “If the state bears no special burden to justify its infringement on religious practice, as long as the challenged statute is a neutral one, then the only protection a religious group receives is against legislation directed at that group. But legislation directed at a particular religious group, even in the absence of the free exercise clause, presumably would be prohibited by the equal protection clause.”6
In response to the Oregon v. Smith decision, advocates of religious freedom succeeded in securing passage of the Federal Religious Freedom Act of 1993. This legislation prohibited the government from limiting religious freedom in the absence of a compelling government interest, and even then the limitation had to be the least restrictive. In 1997, however, in the decision Boerne v. Flores, the U.S. Supreme Court overturned the law on the basis that it interfered with states’ rights.7
In his analysis of the changing perception of the First Amendment, Carter cites the legal scholar Harold Berman, who asserts that contemporary thinking on the First Amendment is sharply discontinuous with that of the Founding Fathers. Berman further asserts that the establishment clause of the First Amendment should be understood to allow “government support of theistic and deistic belief systems more nearly comparable to the government support which is permitted to be given to agnostic and atheist belief systems.”8 While Berman’s analysis addressees government support for faith-based endeavors, he identifies a phenomenon which some would consider to be a bias against religions by the very state(s) charged with protecting religious rights. Clearly, recent actions of legislatures and the courts have demonstrated this phenomenon. To fail in vigorously opposing such actions can have long-term and catastrophic implications for people of faith. Carter forecasts, “The potential transformation of the Establishment Clause from a guardian of religious freedom into a guarantor of public secularism raises prospects at once dismal and dreadful.”9 All one has to do is analyze the burgeoning list of mandates against religious freedom to understand the proportions of this very real threat. (See “Table of Legal Mandates” at www.ncbcenter.org.)
It will not end there. Ever-increasing threats exist, such as mandated assisted suicide and the recognition of same-sex unions, to name two examples. The question is, can the Church acquiesce under the misnomer of “the greater good?” Analyses of this conundrum have centered on proportionality of evil to good. There is a risk in refusing to comply with the legislative mandates (refusing to be complicit with evil) of losing one’s right to engage in the social and health care ministries of the Church. There is also the real concern that if the Church responds to the only morally tenable option – given the rulings in New York and California, for example – it would have to discontinue all prescription benefit coverage for employees. However, providing coverage for contraceptives and abortifacients may, in canonical terms, cause representatives of the Church to commit gravely imputable acts by cooperating with evil.
Grave Imputability
The concept of grave imputability relates to external violations of Church law. Canon 1321 §1 provides an insight into the nature of grave imputability: “No one is punished unless the external violation of a law or precept, committed by the person, is gravely imputable by reason of malice or negligence.” Thus, one is accountable for violations of the law through both intentional commissions (malice) and omissions of which they are culpable (negligence).10 The question is, could representatives of the Church be committing gravely imputable acts by allowing their employee benefit plans to pay for contraceptive drugs and devices, including abortifacients? Specifically, could they be considered in violation of canon 1282, which states, “All clerics or lay persons who take part in the administration of ecclesiastical goods by a legitimate title are bound to fulfill their functions in the name of the Church according to the norm of law?”
There is no question that the use of contraceptives, even by married couples, is gravely and intrinsically evil. Pope Paul VI states, “It is a serious error to think that a whole married life of otherwise normal relations can justify sexual intercourse which is deliberately contraceptive and so intrinsically wrong.”11 The Catechism of the Catholic Church states that contraception, even to regulate births, is morally unacceptable: “The regulation of births represents one of the aspects of responsible fatherhood and motherhood. Legitimate intentions on the part of the spouses do not justify recourse to morally unacceptable means (for example, direct sterilization or contraception).”12
What accountability, then, is borne by those who facilitate such use of morally unacceptable means? Pope Paul VI states that to make it easy for another to commit this intrinsic evil also is “an evil thing”: “Not much experience is needed to be fully aware of human weakness and to understand that human beings—and especially the young, who are so exposed to temptation—need incentives to keep the moral law, and it is an evil thing to make it easy for them to break that law.”13 Causing another to break the law is, in and of itself, scandal, which is morally illicit.14 Furthermore, the scandal is grave when it is caused by a representative of the Church, “who by nature or office [is] obliged to teach and educate others.”15
This grave nature of the matter is compounded by the fact that almost all state contraceptive mandates include insurance coverage for “devices” such as intrauterine abortifacient devices. Abortion is one of the most serious violations of the law. “A person who procures a completed abortion incurs a latae sententiae excommunication” (can. 1398). A latae sententiae penalty is one that is incurred ipso facto when the specific external violation of the law is committed (can. 1314). Abortion includes the destruction of the embryo or fetus any time after conception (fertilization).16 The Ethical and Religious Directives for Catholic Health Care Services are consistent with this interpretation of the meaning of abortion. Directive 36 states, in part, “It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction or interference with the implantation of a fertilized ovum.”17 Therefore, initiating or recommending the use of abortifacient drugs or devices is also prohibited.
Canon 1329 addresses the imputability as it pertains to accomplices without whose assistance the delict (external violation of the law) would not have been committed:
Given these laws, are representatives of the Church accomplices when, under legal mandate, they allow their employees to receive contraceptive coverage, including coverage for abortifacient devices, through the Church’s employee benefit plans? A relevant factor that exempts one from a penalty for a delict is coercion. However, there are provisions to this exemption. One relevant exemption pertains to “a person who acted coerced by grave fear, even if only relatively grave, or due to necessity or grave inconvenience unless the act is intrinsically evil or tends to the harm of souls” (can. 1323, 4º). The presence of legal coercion is a fact in contraceptive mandate laws, but the act of facilitating contraception and the use of abortifacients is “intrinsically evil” and “tends to harms souls.” The bishops of the United States have issued a statement addressing the harm done to couples, in Married Love and the Gift of Life: “Suppressing fertility by using contraception denies part of the inherent meaning of married sexuality and does harm to the couple’s unity.”18 Thus, this exemption from imputability does not apply.
One also can look at the meaning of “malice” in canon 1321 §1: the Latin text uses the word dolo, meaning “deliberate intent to violate the law.”19 One can also examine factors in cooperation with evil: “The term ‘cooperation’ refers to any specific assistance knowingly and freely given, either as a means or an end, to a morally evil act principally performed by another individual or institution.”20 In formal cooperation in evil, the cooperators in the evil act have the same intent as the principal agents of the act. For the representatives of the Church to engage in explicit formal cooperation in providing contraceptives and abortifacient devices to their employees, they must have the same intent as the medical professionals who provide these prescriptions or services. The intent could also be implicit, in giving assistance for a specific portion of the immoral act or in providing prerequisite assistance to enable the immoral act to occur.
There is much evidence to support the fact that bishops and other representatives of the Church have opposed contraceptive mandates as a violation of the moral teachings of the Church. Thus, there is no malice or deliberate attempt to violate Church law by complying with contraceptive mandates.
Ethicists have examined the other levels of cooperation pursuant to adhering to contraceptive mandates. Peter Cataldo differentiates these levels as follows:
Cooperation is material if the act of the principal agent is not intended. The act of the cooperator in material cooperation is itself good or morally indifferent. Material cooperation can be either immediate or mediate. Immediate material cooperation contributes to the essential circumstances, and mediate material to the nonessential circumstances, of the principal agent’s act. Mediate material cooperation can be either proximate through a direct causal influence, or remote through an indirect causal influence, upon the act of the principal agent. Immediate material cooperation by an institution in an intrinsically evil act such as contraception is never morally permissible. Mediate material cooperation can be morally tolerated if there is a great good to be preserved or a grave evil to be avoided.21
The question is whether enabling payment for the prescription constitutes an essential circumstance, making the immoral act possible.
There are numerous permutations of employee benefit plans used by Church corporations. Employee benefit plans are funded in part by the employer and in part by all of the employees participating in the plan. There is nothing more essential to the completion of an act than the payment for the act, which would not be completed without such payment, thus making the material cooperation immediate. Even if one did not agree with this premise, and held that cooperation with contraceptive mandates constitutes mediate material cooperation, one would have to analyze the good being preserved and the grave evil to be avoided in determining whether the cooperation is licit. As stated earlier, there are goods to be preserved: the continuance of the health care and social ministries of the Church, and the continued employment of thousands of persons provided with prescription coverage. However, to preserve these goods requires cooperation in the intrinsically evil acts of contraception and abortion (through abortifacient devices). While canon 1324 §1,5o provides for a tempering of a penalty is a violation is perpetrated under coercion, and 1324 §3 precludes a latae sententiae penalty under such circumstance, canon 1323, 4o states that one is still subject to a penalty for violating a law, even if coerced, if the act is intrinsically evil or tends to harm souls.
The evil of cooperating in contraception and abortion is not the only evil to be averted. By cooperating with contraceptive laws, Church employers are forcing their employees to contribute to the insurance pools that pay for the immoral prescriptions and services. There is a third evil to be averted, and it is that which was predicted by Paul VI in Humane vitae. He predicted that government would impose its will in the area of contraception:
Who will prevent public authorities from favoring those contraceptive methods which they consider more effective? Should they regard this as necessary, they may even impose their use on everyone. It could well happen, therefore, that when people, either individually or in family or social life, experience the inherent difficulties of the divine law and are determined to avoid them, they may give into the hands of public authorities the power to intervene in the most personal and intimate responsibility of husband and wife.22
By collaborating, even under protest, with contraceptive and abortifacient mandates, the Church is paving the way for further government intrusions. This is a grave evil to be avoided. The Church has made every legal attempt to overturn the contraceptive mandate laws. To date, all efforts to secure judicial recourse have failed. To continue to comply with such mandates can only lead to a further erosion of religious freedom. Furthermore, to acquiesce to a redefinition of our ministries as secular entities not only is historically inaccurate but also has significant implications for the future of religion in the United States. To comply now would appear to be akin to negligence.
The second criterion of grave imputability for a violation of the law, culpable negligence, is also addressed in canon 1321 §1: “No one is punished unless the external violation of a law or precept, committed by the person, is gravely imputable by reason of malice or negligence [culpa].” To comply with contraceptive and abortifacient mandates could constitute ecclesiastical negligence pursuant to canon 1389 §2: “A person who through culpable negligence illegitimately places or omits an act of ecclesiastical power, ministry or function with harm to another is to be punished with a just penalty.” Canon 1321 §2 states that ordinary negligence due to the omission of necessary diligence is not punishable by law: “A penalty established by a law or precept binds the person who has deliberately violated the law or precept; however, a person who violated a law or precept by omitting necessary diligence is not punished unless the law or precept provides otherwise.” However, canon 1321 continues, “when an external violation has occurred, imputability is presumed unless it is otherwise apparent” (can. 1321 §3).
Need for Decisive Action
Concerning culpable negligence, no one could accuse the Church of not performing due diligence on the matter. Extensive legal resources have been expended in the pursuit of religious freedom. Now that legal remedies are being exhausted, the issue is how will the Church act in accord with its due diligence? Now is the time to act: to refuse to comply, so that no further harm can be done to the ministries of the Church, her employees and the future of religious freedom. The history of Catholic health care is being rewritten by legislatures and the courts, who are denying the ministerial nature that is its foundation. The essential meaning of religion is being redefined to deny its very essence. Furthermore, for the Church not to act will fulfill the prophesies of Paul VI, as well as those of Carter: “The potential transformation of the Establishment Clause from a guardian of religious freedom into a guarantor of public secularism raises prospects at once dismal and dreadful.”23
Since the U.S. Supreme Court declared the federal Religious Freedom Restoration Act of 1993 unconstitutional, efforts to remedy this in Congress have stalled. In 2000, Congress passed a limited version of an RFRA, the Religious Land Use and Institutional Persons Act. This legislation restricts government intrusion into the use of religious land, and protects religious freedom of institutionalized persons. The final recourse to redress the contraceptive mandate laws and rulings of New York and California is the U.S. Supreme Court. However, in October 2004 the U.S. Supreme Court refused to hear the challenge to the decision of the Supreme Court of California; and in October 2007 the U.S. Supreme Court refused to hear a challenge to the New York Court of Appeals decision. Now what should be done?
Eventually the Church will have to say, “Enough. We will not be complicit in the violation of moral law.” This will require significant employee relations and public relations campaigns to demonstrate the source of the problem: violation by the government of religious freedom that the drafters of the U.S. Constitution intended to protect. Sufficient notice of the intent to no longer comply, perhaps by no longer offering prescription coverage to employees, will be needed. Then the very secular society that depends on the services of the Church, which is the largest provider of nongovernmental, nonprofit health care, social services, human services and education in the United States, will be responsible for the outcome.
Implications of Mandatory Insurance Coverage of Contraceptives for Catholic Colleges and Universities
/in Mission and Governance Employee Benefits, Research and Analysis/by Becket FundYou have asked us to describe some of the current issues surrounding conscientious objections to the funding of contraceptives through employee and student health insurance benefit plans. In particular, you have asked us to describe the general considerations confronting Catholic institutions that seek to comply with their understanding of their obligations under Ex corde Ecclesiae and Roman Catholicism generally.
We emphasize at the outset that this is not legal advice, and no one should treat it as such. Nor are we presuming to give religious or theological advice.
We also note that it is not only those Catholic institutions that conform in all respects to the most obvious reading of Ex corde Ecclesiae, canon law, or any other source of church authority that enjoy religious liberty under the law. At least since Thomas v. Review Board, 450 U.S. 707 (1981), it has been clear that it is the specific religious beliefs of the person or institution before the Court that determine the extent of conscience protection afforded by civil courts. The legal analysis that follows is therefore belief-neutral.
Introduction
The issue of contraceptive mandates is a new one for most Catholic institutions. The trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s22 and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP).23 After FEHBP—the largest employer-insurance benefits program in the country—set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.24
The trajectory of state law and the Equal Employment Opportunity Commission’s (EEOC) recent interpretations of Title VII and the Pregnancy Discrimination Act (PDA) pose serious threats to the conscience rights of Catholic employers who believe that they cannot fund employee prescription contraceptives without contradicting fundamental tenets of their faith. Should this trend continue, many Catholic institutions will not be able to comply with state law and the PDA while remaining true to their religious convictions. As a result, Catholic institutions might be compelled to suspend, or significantly restrict, the prescription health care benefits available to their employees.
Failure to exclude objecting Catholic entities from the requirement to provide contraception constitutes an abandonment of the government’s responsibility to protect against threats to the moral integrity of a large class of its citizens.25 What is at stake is therefore the right of an objecting Catholic college to remain “authentically Catholic” by its own lights.26
Overview of Governing Law
Catholic employers are no doubt familiar with Title VII, the primary federal law addressing employment discrimination. Title VII prohibits “discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin….”27 Title VII exempts religious organizations and institutions from its provision on religious discrimination, but does not exempt them from its provisions on gender discrimination.28
Title VII defines discrimination “on the basis of sex” to include discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions;” and specifies that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work….”29
This part of Title VII, commonly known as the Pregnancy Discrimination Act (PDA)30, was added by Congress in 1978 in response to a Supreme Court decision holding that an employer ’s selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII.31 The PDA specifies that it “shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion.”32 The PDA does not define abortion, and makes no mention of contraception.33
In 2000, the EEOC issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the PDA.34 Although this opinion is not binding on federal courts, it is influential, since the EEOC is the government body charged with enforcing Title VII.35 This opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives.36 The first federal court decision in one of these cases—Erickson v. Bartell Drug Co.—came less than a year after the EEOC opinion, and agreed that employers with prescription drug plans have “a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes.”37 The Supreme Court has not ruled on the issue of contraceptive coverage. But, since Erickson, new Title VII claims have been brought against Catholic institutions that did not provide contraceptive coverage.38
Current State Laws Concerning Insurance Coverage of Contraceptives
While virtually all insurance plans include coverage of prescription drugs, employers can opt to exclude coverage of the range of U.S. Food and Drug Administration (FDA)- approved prescription contraceptive drugs and devices.39 To counteract this policy, in the past two decades, 27 states have enacted laws to require insurers that cover any prescription drugs at all to cover all FDA-approved contraceptive drugs and devices.40 Furthermore, 16 of these states have mandated coverage of related outpatient services.41 Such state laws regulate college and university health plans for students as well as employees.
Catholic institutions are afforded limited protection in 15 of the 27 states. These states have enacted conscience protections that allow institutional employers or insurers to exclude contraceptive coverage on religious or moral grounds.42 Under such provisions, a Catholic college or university may be able to exclude contraceptive coverage from its employee health plan. (However, the conscience protections do not extend to health plans offered by a college or university to its students.)43
The state exemptions ordinarily allow entities to opt out if covering contraception would interfere with the employer ’s “religious tenets” (e.g., Hawaii and North Carolina), “bona fide religious tenets” (e.g., Connecticut), or “bona fide religious beliefs and practices” (e.g., Maine and Maryland).44 Among the states that have enacted these mandates, Missouri is the most protective of conscience, allowing any employer to refuse coverage, regardless whether the motivation is based on religion or other ethical principle.45 The objections of Catholic institutions to covering contraception should meet any of these state standards, since Catholic institutions that object to contraception, sterilization, and abortion as “intrinsic evils” can invoke a number of doctrinal statements expressing the value and dignity of human life from conception and the sacredness of the marital act open to procreation.46
More complicated, however, is how the state laws define the religious employers to be exempted under their conscience provision. Some states do not define the term “religious employer ” at all, which could permit any institution that self-identifies as religious to claim the exemption.47 In North Carolina, for example, a religious employer is a non- profit organization whose purpose is to advance the “inculcation of religious values” and whose employees primarily “share the [employer ’s] religious tenets.”48 Thus, in North Carolina and states employing similar language, Catholic colleges would ordinarily be exempted. Hawaii’s statute is similar to North Carolina’s, although it also affords protection to nonprofit organizations that are owned or controlled by a religious employer, as long as the organization “primarily employs persons who share the religious tenets of the entity.”49 In New York and California, among others, the term “religious employer ” is interpreted so as to exempt Catholic churches themselves, but not the various organs of the Catholic Church such as Catholic Charities, or Catholic hospitals, colleges, universities or nursing homes.50
Catholic colleges are subject to the overlapping jurisdictions of the state and federal governments; a fact that complicates approaches to benefits decisions. For example, fully-insured health plans, such as those extended to employees and students of most colleges and universities, are governed by both federal and state law. Self-insured employee health plans, by contrast, are governed exclusively by federal law under ERISA.51 However, this federal preemption of state mandates under ERISA affects employee health plans only; student health plans remain subject to state regulations despite an institution’s decision to self insure.52
Since the PDA is federal law, a religious exemption to the PDA would be ineffectual in protecting religious employers in the 27 states that require contraceptive coverage. An exemption to the PDA would only affect those religious institutions that are able to provide self-insurance programs (that are subject to Federal ERISA) or in the minority of states that have not mandated contraceptive coverage.
Trends in the Law
The law governing contraceptive mandates has seen much change in recent years. One of the most far-reaching state contraceptive mandates was enacted earlier this year in Wisconsin. As of January 2010, Wisconsin will require all providers of health insurance to include contraceptive services, irrespective of religious affiliation, moral objection, or category of “religious employer.” The Roman Catholic bishops of Wisconsin issued a statement in response, decrying “this blatant insensitivity to our moral values and legal rights.”53 The new mandate will have direct impact on all objecting Catholic institutions and dioceses, except for the few that have the size and wherewithal to self-insure for their employees.54
The Wisconsin law is the latest iteration of a growing body of state law that rejects conscientious objections to contraceptive mandates. For instance, in 2004 the California Supreme Court held that Catholic Charities was required to cover contraceptives under their fully-insured employee health plan in order to comply with California’s Women’s Contraceptive Equity Act (WCEA). See generally Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004).55
The reasoning in Catholic Charities of Sacramento was followed in New York, where the state’s highest court affirmed a decision that Catholic Charities was not a “religious employer ” for the purposes of a religious exemption to the state mandate on contraceptive coverage.56 Part of the intermediate appellate court’s explanation for overriding Catholic Charities’ Free Exercise claims was that “the paramount right of personal health…of many employees who do not share plaintiffs’ views on contraceptives would be subordinated to plaintiffs’ right to freely exercise their beliefs.”57 This reasoning manifests the courts’ and legislatures’ recent tendency to treat government as the guarantor of a limited set of state-defined benefits—even at the expense freedom of conscience—rather than as the protector of the liberty and integrity of persons.58
If other state courts follow the reasoning of the California and New York courts, then state contraceptive mandates will affect Catholic institutions in every state where state law does not provide conscience protections.
There is similar uncertainty with respect to the EEOC’s claim that the PDA provides for a contraceptive mandate for employers. Lower courts have split over whether Title VII, as amended by the PDA, compels insurance coverage for contraceptives. Compare Cummins v. Illinois, No. 2002-cv-4201-JPG, 2005 U.S. Dist. LeXIS 42634 (S. D. Ill. 2005) (employee health plan does not violate Title VII if both men and women are denied contraceptive coverage); Alexander v. American Airlines, Inc., 2002 WL 731815 (N.D.Tex. 2002) (“[b[y no stretch of the imagination does the prohibition against discrimination based on ‘pregnancy, childbirth, or related medical condition[s]’ require the provision of contra- ceptives.”) with Erickson, 141 F. Supp. 2d 1266 (failure to provide contraceptive coverage violated the PDA); Stocking v. AT&T Corp., 436 F.Supp.2d 1014 (W.D.Mo.2006) (same); Cooley v. DaimlerChrysler Corp., 281 F.Supp.2d 979, 984-85 (E.D. Mo. 2003) (same); Mauldin v. Wal-Mart Stores, Inc., 2002 WL 2022334 (N.D. Ga. 2002) (same).
Although the federal district courts have split over the issue of whether the PDA requires employers to provide contraception, the only federal court of appeals to reach the issue held that the PDA did not include a contraceptive mandate. In 2007, the Eighth Circuit Court of Appeals ruled that contraception was not sufficiently “related to” pregnancy to fit under the umbrella of the PDA. See In re Union Pacific Railroad, 479 F.3d 936 (8th Cir. 2007). Specifically, the court grounded its opinion on the fact that contraception itself is “gender-neutral” and the plain language of the PDA statute did not refer to contraception.59 An employee health insurance plan, therefore, did not violate the PDA by failing to include contraception coverage. Since the court ruled the employer ’s decision not to cover contraceptives did not involve a “sex classification,” it could not be categorized as a sex-based violation of Title VII.60
Given the relatively recent vintage of the EEOC’s interpretation (2000) and the mixed court rulings so far, it remains an open question whether federal law, like some state laws, will impose a contraceptive mandate on objecting Catholic colleges and institutions.
Legal Defenses for Catholic Colleges and Universities
Catholic institutions with objections to contraceptive mandates are not wholly without legal options, even in the face of federal or state law. There are two main kinds of legal defenses that Catholic colleges can raise in response to federal- or state-imposed contraceptive mandates.
First, there are various defenses arising from the federal Constitution or state constitutions that objecting Catholic institutions may be able to employ to defend against contraceptive mandates. Colleges may have recourse to state constitutional language and the First Amendment of the U.S. Constitution, which preserve free exercise of religion. Colleges may also raise defenses rooted in the constitutional doctrine of “church autonomy,” which protects internal church affairs on matters of theology and ecclesiastical governance from government interference.
Despite these constitutional guarantees, Catholic institutions will have to be prepared for arguments stemming from the Supreme Court’s decision in Employment Division v. Smith.61 In Smith, the Supreme Court announced that the First Amendment’s free exercise clause “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,’” simply because “the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”62 In other words, the fact that an act infringes on the religious beliefs or regulates the religiously motivated policies of a Catholic institution does not necessarily make the law unconstitutional.63 This is because, as the New York and California courts have asserted, their state contraceptive insurance mandates “apply neutrally and generally to all employers, regardless of religious affiliation, except to those few who satisfy the statute’s strict requirements for exemption on religious grounds.”64
In New York and California, “those few” may not include Catholic colleges. Nonetheless, objecting Catholic institutions can argue that the definition of a “religious employer ” for purposes of a statutory exemption should comprehend Catholic colleges with a strong Catholic identity, since there is a very strong argument that the mission of a Catholic college is “to inculcate religious values.”
That said, any constitutional defense will necessarily vary with both the location and the circumstances of the particular Catholic institution affected. Therefore experienced constitutional counsel should be consulted at the earliest opportunity.
Second, Catholic institutions can raise various statutory defenses to contraceptive man- dates. These include federal and state “Religious Freedom Restoration Acts,” as well as various anti-discrimination statutes.65 These laws typically protect against (a) religious discrimination and (b) “substantial burdens” on religious exercise, without regard to whether the government intended to discriminate. However, in the context of an EEOC action, the EEOC is likely to argue that statutory religious discrimination defenses do not trump gender discrimination claims made under the PDA.66 Moreover, since state religious freedom laws (including state constitutions) do not protect against action by the federal government, PDA claims brought by the EEOC would be relatively difficult to defend against on that basis.
Catholic institutions should be aware that all of these protections—constitutional and statutory—are subject to the requirement that the religious institutions’ claims be sincere, or “bona fide.” Although the courts will not delve into the reasonableness of a religious belief, they are competent to judge whether a belief is “sincerely held.”67 Insincere religious beliefs enjoy neither constitutional nor statutory protection.68 For example, a prison inmate who requests to be served a vegetarian diet for religious reasons but who nonetheless buys hot dogs from the commissary cannot invoke free exercise protections because his behavior appears to be insincere. In the context of Catholic colleges and universities, first acting inconsistently with the school’s religious identity and then later claiming a religious exemption (after a lawsuit has been filed) is unlikely to succeed.
As with the constitutional defenses, there is no one-size-fits-all legal strategy to law- suits attempting to impose contraceptive mandates on Catholic institutions. Therefore the key to raising a successful defense will be to involve competent counsel at an early juncture.
Areas of Consideration for Catholic Colleges and Universities
Depending on the state legislative developments and the outcome of future litigation over the scope of the PDA, objecting Catholic institutions may have to resort to creative arrangements to balance treating their employees and students justly and remaining faithful to their principles. Some possible courses of action and recommendations are outlined below:
Eliminating Prescription Drug Benefits Altogether. This option was proposed by the New York Court of Appeals in Catholic Charities of Albany, but has obvious drawbacks, including burdens on students, employees and their families who require prescription drugs.69 It would also likely present objecting Catholic institutions with the dilemma of reconciling Catholic teaching on living wages for workers with their beliefs about facilitating contraception, sterilization, and abortion.
Eliminating prescription drug benefits altogether may be a more appealing option for student health insurance plans (rather than employee plans). Already, student plans tend to be less comprehensive than employee plans; students are typically offered a choice among different plans with varying levels of benefits. Because basic student plans, or “catastrophic plans,” usually exclude prescription drugs or “out- patient treatment” altogether, these plans would not be obligated to provide “family planning services” under state mandates. Moreover, unlike a university employee, a student pays an additional fee for health coverage offered by the university. Thus, a student who desires prescription health benefits can simply opt for a private health plan instead of the university plan. Although the student might have to sacrifice convenience, a Catholic college might decide this is an acceptable compromise.
Attempting to “Out-source” Contraceptive Coverage. Another way that some Catholic institutions, principally health care systems, have dealt with mandated contraception coverage is by attempting to distance themselves from the actual provision of benefits.70 According to a 2000 report of “Catholics for a Free Choice,” more than half of managed care plans adopted by Catholic health systems have found “creative approaches” to contract at arm’s length to meet the state requirements and joint federal-state Medicaid mandate that entitles Medicaid recipients to family planning services and supplies.71 Some of these Catholic employers have attempted to distance them- selves from providing this coverage by separating out the amount of the premium that would be used to cover contraception and contracting with a third-party administrator to handle payment. Others contract with an independent insurance company to handle coverage of those services.
This approach would have the disadvantage of putting many religious institutions and individuals into a quandary of conscience.72 Such arrangements would also make it much more difficult for Catholic institutions to invoke religious freedom protections against facilitating access to morally objectionable services in other contexts, because plaintiffs would likely argue that the outsourcing arrangements contradict the institution’s claimed beliefs.
Form self-insurance pools. Another option may be for Catholic institutions to pool their benefits and liabilities in such a way as to self-insure. This strategy would allow Catholic employers to escape restrictive state laws styled after Wisconsin’s recent mandate, but would not protect against federal laws or EEOC action. However, converting from insured to self-insured has larger consequences than protecting against state law prescription contraceptive mandates. For instance, self-insuring would ex- pose the religious employer to financial risk whenever high-cost claims are filed.73
Be consistent in policy decisions and in media communications. A Catholic institution must be careful to ensure that all of its members’ actions are consistent with the values it espouses. Recent history amply demonstrates that religious institutions will be charged with hypocrisy, and incur civil liability, if they do not act consistent with their beliefs. Similarly, all media communications need to be consistent with the actual values of the institution. A civil court will be much less inclined to believe assertions of sincere conscientious objection if the institution has not been consistently acting and communicating in accordance with its claimed beliefs.
Make clear—externally and internally—what one’s institutional values are. It is crucially important that the administration of a Catholic institution state publicly and privately what moral precepts it intends to follow and why. Many religious institutions have seen religious freedom defenses fail because the institutions failed to assert their values openly, vigorously, and consistently. Catholic institutions also run the risk of liability if they fail to explain in detail why they believe what they do. Rooting benefits policies in specific Church doctrines makes clear where the institution stands, and that it is sincere. Sound theology can be a sound defense, even in civil court.
Don’t carelessly discuss finances and costs of health insurance. Colleges and universities often take a business-like approach to certain decisions, even when there are underlying religious principles at stake. Make sure that the written record of any decision regarding benefits reflects the religious principles motivating the decision. Plaintiffs seeking to defeat a religious freedom defense often argue that denying certain benefits is “just about the money.” Don’t give a civil court reason to believe them.
Seek legal advice at the earliest opportunity. Every legal situation is different, and religious freedom issues can be particularly tricky in any state. Catholic institutions should get expert legal advice as soon they find out about a challenge to their benefits practices. Waiting to get legal advice until later often leads to mistakes that can be difficult to unwind.
Responding firmly. As the analysis above shows, objecting Catholic institutions have legal options. Immediately accommodating a potential plaintiff once he or she com- plains often results in only temporary appeasement and additional requests later. It is frequently better to respond firmly at the outset than to accommodate and merely delay the inevitable conflict until later.
Conclusion
The next few years may present difficult times for Catholic colleges and universities that have conscientious objections to contraceptive mandates. However, there are a number of ways Catholic institutions can continue to carry out their missions while minimizing the threat of government penalty. They should not be afraid to do so.
Ex corde Ecclesiae: Echoes of Newman’s The Idea of a University
/in Mission and Governance Commentary, St. John Henry Newman/by Rev. Peter StravinskasHaving taught courses in the philosophy of education in two of the largest Catholic universities of the country for twenty years, I have more than a passing interest in the field. When the invitation came to consider presenting a paper to a conference sponsored by The Cardinal Newman Society to commemorate the bicentennial of Cardinal Newman’s birth,32 I immediately thought of his magisterial work, The Idea of a University, written exactly 150 years ago, referred to by Cardinal Anthony Bevilacqua as “a work of great subtlety.”35 Fresh in my mind also was that United States episcopal conference had just completed a decade-long effort to bring Pope John Paul II’s Ex corde Ecclesiae to life in our nation. Could there be a connection between the visions of Newman and Wojtyla?
Both men spent considerable portions of their lives as university professors and chaplains. Both wrote only one major work on the nature of a Catholic university: Newman to prepare for the opening of the Catholic University of Ireland; John Paul II to prevent the collapse of Catholic higher education worldwide. Both struggled to see their vision implemented: Newman failed; the jury is still out on Wojtyla.
Many have noted that Cardinal Newman was the “unseen father” at Vatican II, and I don’t think that is much of an exaggeration. The late Holy Father, like every single one of his predecessors from the nineteenth century forward, and now also his successor, Pope Benedict XVI, made no secret of his esteem for the Venerable convert on numerous occasions. One could highlight the fact, for instance, that aside from popes, councils, and the beatified or canonized, Newman is the only person cited in the Catechism of the Catholic Church—and on three occasions, no less. Of course, the Pope also concluded his homily at the latest consistory by evoking the memory of Cardinal Newman and by presenting him as a model for cardinals of the third millennium; interestingly, that was also the consistory at which the recently late Father Avery Dulles, S.J. entered the College of Cardinals—another theologian-cardinal and convert.
So, I don’t think it far-fetched to suppose a Newmanian influence on the composition of Ex corde; in fact, a glance at the footnotes surfaces three direct quotes. I submit, however, that closer examination of the document reveals distinct and loud echoes of Newman’s voice, as well as a tone which is unmistakably suffused with the thought and spirit of John Henry Newman. Permit me to serve as your guide through this investigation by moving back and forth between the Cardinal and Pope John Paul II, asking not too irreverently, “Was Newman the ghostwriter for Ex corde Ecclesiae?”
1. What Is a Catholic University?
Newman launches into this matter with all deliberateness: “. . . when the Church founds a University,” he says, “she is not cherishing talent, genius or knowledge, for their own sake, but for the sake of her children, with a view to their spiritual welfare and their religious influence and usefulness, with the object of training them to fill their respective posts in life better, and of making them more intelligent, capable, active members of society.”36
The title of Pope John Paul II’s apostolic exhortation is carefully chosen; in fact, he has been referring to Catholic schools as “the very heart of the Church” at least since 1981, if my tracking has been accurate.47 The Holy Father sets the stage by locating the university as having been “born from the heart of the Church.” Indeed, he makes a point which most commentators, Catholic and secular alike, fail to recall: that it was the Catholic Church which created not Catholic universities but the entire concept and system of university education. So much for George Bernard Shaw’s snide remark that speaking of “a Catholic university is a contradiction in terms.”
“It is the honor and responsibility of a Catholic university to consecrate itself without reserve to the cause of truth,” teaches the Pope.72 And then, directly quoting Cardinal Newman, he speaks of the Church’s “intimate conviction that truth is its real ally . . . and that knowledge and reason are sure ministers to faith.”74
One cannot gainsay the centrality of truth in the educational process, and here the Pope’s admiration for Newman knows no bounds, having referred to him as an “ardent disciple of truth.”75 Indeed, Newman made the battle for truth the cause célèbre of his life, fighting against “liberalism” in religion, which he defined as the belief that “there is no positive truth in religion, but that one creed is as good as another.” 76 Quite movingly does Cardinal Bevilacqua describe Newman’s commitment to this cause:
Cardinal Newman’s life is a testimony to the liberating power of the truth and a warning about the slavery awaiting those who exalt freedom above all. Unless our freedom is built on the rock of truth, our poor wills will be, as the Apostle says, “tossed to and fro and carried about with every wind of doctrine, by the cunning of men, by their craftiness in deceitful wiles” [Eph 4:14]. Without the kindly light of truth, human freedom gets lost amid the encircling gloom.77
The Holy Father goes on to identify four “essential characteristics,” to use his terminology, qualities that must be present in any university which wishes to be known as Catholic; they are worth citing in full:
Then follows counsel for all who make up the university community, which community must be, he says, “animated by the Spirit of Christ.” The Pope further argues that no true community can exist without “a common dedication to the truth, a common vision of the dignity of the human person and, ultimately, the person and message of Christ.” This last element, he maintains, is precisely what “gives the institution its distinctive character” (no. 21). University teachers are thus not merely providers of academic formation; they are called to be “witnesses and educators of authentic Christian life.” Most importantly, the Holy Father says, it should be evident that these men and women have achieved an “integration between faith and life and between professional competence and Christian wisdom” (no. 22). Nor should one expect that because many of them are members of the laity that this dimension would be less apparent or even totally lacking (no. 25).
Students, having been introduced to the meaning of Christian wisdom and having seen clear, consistent, and living examples of it in their professors, will logically be able to assume their roles as “the trained ‘leaders’ of tomorrow, of being witnesses to Christ in whatever place they may exercise their profession” (no. 24).
2. Why a Catholic University?
Cardinal Newman explains it thus: “. . . it is a matter of deep solicitude to Catholic prelates that their people should be taught a wisdom, safe from the excesses and vagaries of individuals, embodied in institutions which have stood the trial and received the sanction of ages. . . .” 79
Ex corde puts it this way: “In the world today, characterized by such rapid developments in science and technology, the tasks of a Catholic university assume an ever greater importance and urgency. . . . Its Christian inspiration enables it to include the moral, spiritual and religious dimension in its research and to evaluate the attainments of science and technology in the perspective of the totality of the human person” (no. 7). John Paul II continues:
Along similar lines, it has been noted that Newman “urges the priority of literature over science in education,” lest the Church’s educational institutions produce little more than a generation of “technocrats”.80 That does not mean that Newman was opposed to science; by no means. In fact, following in the mentality of his fellow-Oratorian of the sixteenth century, Cardinal Baronius, Newman—like Wojtyla today—had a profound respect for science and its autonomy and even contended that “many scientists have been hostile to religion because theologians have often overstepped their mark.”81
The Pope goes on with very practical applications of these general principles, talking about the “integration of knowledge” (no. 16) and the need to promote “dialogue between faith and reason” (no. 17). He underscores the critical necessity for all research to be grounded in ethical and moral standards, both in “its methods and discoveries” (no. 18) because of the requirement to safeguard the dignity of the human person in all circumstances.
3. Does a Catholic University Have a Distinctive Curriculum?
John Paul II would seem to think so, and it is what we might call “the humanum.” Sounding an awful lot like the old pagan Roman poet Terence, with his “nihil humanum mihi alienum est,” the Holy Father argues that “there is only one culture: that of man, by man and for man.” He goes on: “And thanks to her Catholic universities and their humanistic and scientific inheritance, the Church, expert in humanity, . . . explores the mysteries of humanity and of the world, clarifying them in the light of Revelation” (no. 3). Even more boldly, he declares: “By means of a kind of universal humanism, a Catholic university is completely dedicated to the research of all aspects of truth in their essential connection with the supreme Truth, Who is God” (no. 4), with the result that Catholic institutions of higher learning “are called to explore courageously the riches of Revelation and of nature, so that the united endeavor of intelligence and faith will enable people to come to the full measure of their humanity” (no. 5). And here the Pope sounds a great deal like Irenæus, with his “gloria Dei vivens homo.”
Having mentioned Irenæus, one is immediately led to consider Newman. What does he envision for a Catholic university curriculum? The Cardinal observes that, although Pope St. Gregory the Great was not particularly fond of the literature of the pagan Greeks and Romans (although he knew it all very well), he was said by his biographer “to have supported the hall of the Apostolic See upon the columns of the Seven Liberal Arts.”82
As Newman presented his ideas for the founding of the Catholic University of Ireland, he applied this generic concept to a model for a curriculum:
. . . Civilization too has its common principles, and views, and teaching, and especially its books, which have more or less been given from the earliest of times. . . . In a word, the classics, and the subjects of thought and the studies to which they give rise, or, to use the term most dear to our present purpose, the Arts, have ever, on the whole, been the instruments of