Conscience Clauses: Justifying Bigotry On Religious Grounds

Pamela Merritt

The thought of people refusing to serve a person of color due to their personal objection to desegregation is now considered indefensible, but refusal of service due to personal religious objections is not a thing of the past.

When I think of refusal of
services the first thing that comes to mind is a story my mother told
me from her childhood when a restaurant in Mississippi refused to seat
her family based on legal racial segregation.  She was a young
child but the memory stuck with her and she shared the story with me
to explain that there was a time when inequality was protected by law
and how that inequality had an impact on her life.  She made certain
to point out that many segregationists justified their bigotry based
on religious grounds. 

The thought of people refusing to serve
a person of color due to their personal objection to desegregation is
now considered indefensible and a violation of the law, but refusal
of service due to personal religious objections is not a thing of the
past.  Pharmacists in Washington State can refuse to fill prescriptions,
for example a prescription for Plan B, if they feel that doing so conflicts
with their religious beliefs.  Pharmacy refusal and refusals of
service are threats to the rights and health of women and defending
against those threats and the erosion of rights that they represent
is a crucial front in the reproductive justice struggle.   

Like most people, I thought
that getting a prescription filled was a simple process.  A person
goes to their doctor, gets a prescription, drops it off at a pharmacy
and the pharmacist fills it.  The idea that an insurer would refuse
to cover, a doctor would refuse to prescribe or a pharmacist would refuse
to fill that prescription on religious grounds and that her or his refusal
would be protected by law never crossed my mind until my home state
of Missouri’s legislature entertained a bill containing protections
for pharmacies earlier this year.  As Amanda Marcotte explored
in her piece Freedom’s
Just Another Word for Punishing Women
,
pharmacy refusal is a key anti-choice tool that has less to do with
protecting religious freedom than protecting misogyny and forcing women
to bend to the will of the religious right.   

So how did this happen? 
Shortly after the landmark Roe v. Wade decision in 1973, Congress passed
the Church Amendment

that allows healthcare providers to cite religious grounds in order
to refuse to provide services.  Specifically, the Church Amendment
prevents the government, as a condition of a federal grant, from requiring
healthcare providers to perform or assist in abortion or sterilization
procedures against their moral or religious convictions. It also prevents
institutions receiving certain federal funds from taking action against
personnel because of their participation, nonparticipation or beliefs
about abortion or sterilization. Within five years of passage of the
Church Amendment, the majority of states adopted refusal clauses and
refusal clauses have been extended to include assisted reproductive
technologies, contraception and emergency contraception, human embryonic
or fetal research, in vitro fertilization, and stem cell research.  

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That brings us to the example
of Washington State, where pharmacists can refuse to fill prescriptions
if they feel that doing so conflicts with their religious beliefs. 
On April 12, 2007, the
Washington State Pharmacy Board adopted rules

requiring pharmacies to ensure that patients are able to get prescriptions
filled on site and in a timely manner.  The rules require pharmacies
to dispense all lawfully prescribed drugs and devices, clarifying that
a pharmacist’s personal and/or moral judgments have no place at the
pharmacy counter. On September 27th, 2007, a judge presiding over a
pharmacy refusal lawsuit issued a preliminary order preventing those
rules requiring pharmacies to fill all lawful prescriptions without
discrimination or delay from taking effect.  As The Northwest Women’s
Law Center
pointed
out in their statement about the ruling, the rules were adopted to promote
the health of Washingtonians and the ruling preventing those rules from
being applied put the health of all Washington residents at risk. 
Sarah Dunne, legal Director of the ACLU of Washington, pointed out in a
statement issued shortly after the prevention ruling
that "The Pharmacy Board rules
strike the appropriate balance between patients’ rights of access to
medication and pharmacists’ individual rights. We hope the court ultimately
will recognize this and reinstate the rules." 

Access to reproductive healthcare
is being denied on religious grounds through refusals to cover prescriptions
too.  One key question is whether a healthcare insurance provider
can refuse to cover services on religious grounds if they receive federal
funds.  Catholics
for Choice

(CFC) approached that question from the angle of the Catholic healthcare
system and its impact on reproductive healthcare.  Some Catholic
HMOs receive payment for services from federal programs like Medicaid,
which mandates a provision of family planning services.  In their
report Catholic
HMOs and Reproductive Health Care
,
CFC explored the growth of Catholic managed care and the question of
refusal of services and found that, of the 48 Catholic managed care
plans CFC identified serving some 2.5 million Americans, 25 (representing
52% of all the Catholic plans identified) are providing contraceptive
coverage for enrollees and some of those specify that they will only
cover oral contraception.  

The public policy implications
are clear, since coverage is a key factor in access to reproductive
healthcare and federal mandates should protect that access.  But
the CFC report found that there are few formal regulations that require
health plans that refuse to provide family planning services to disclose
this clearly on marketing and enrollment materials.  As a result,
employers may select a plan and have no idea that it limits or denies
access to reproductive healthcare due to a lack of coverage.  Employees
would then be left to seek reproductive healthcare elsewhere and shoulder
the additional costs or go without that healthcare entirely. 

It’s not as if there aren’t
ways to balance individual freedoms.  In their report, CFC identified
several methods that Catholic healthcare plans may use to make reproductive
health services available to enrollees without compromising their organizations
beliefs. The key element is distancing the Catholic plan from the direct
provision of and/or direct payment for forbidden services.  The
Catholic plan can contract with non-Catholic providers, such as another
hospital or clinic, to provide the services.  They could also arrange
for the money they receive from enrollees or their employers that goes
to pay for reproductive health services to go through third-party. 
Or a Catholic plan may arrange for another insurer to handle payment
and provision of reproductive health services. 

So let’s rewind to my earlier
exploration of going to the doctor, getting a prescription then going
to the pharmacy and getting that prescription filled – things clearly
aren’t as simple as they initially appeared to be.  A woman may
be denied access as a result of her healthcare insurance provider’s
refusal of coverage, she may have a doctor refuse to treat her or she
may actually make it to the pharmacy only to find that the pharmacist
refuses to fill the prescription on religious grounds.  And access
to reproductive healthcare looks more like a grueling obstacle course
where the game is based on luck and chance than a protected freedom. 

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.

Analysis Politics

Paul Ryan Uses Falsehoods Behind Texas HB 2 to Push Yet Another Abortion Restriction

Ally Boguhn

In a CNN town hall Tuesday night, Paul Ryan agreed with an audience member's baseless sentiment that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics" in its Whole Woman's Health v. Hellerstedt ruling.

During a CNN town hall on Tuesday night, House Speaker Paul Ryan (R-WI) pushed falsehoods about the anti-abortion provisions at the center of the recent U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt being necessary for patient health and safety. Ryan nonsensically then used the decision as a launch point to promote House Republicans’ Conscience Protection Act, which passed in the House Wednesday evening and supposedly shields those who object to abortion from discrimination. The only things Texas’ provisions and the legislation have in common, however, is that they’re all about blocking access to abortion care.

Town hall audience member and executive director of New Jersey Right to Life Marie Tasy claimed during the event Tuesday that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics,” in its landmark ruling against two provisions—the admitting privileges and surgical center requirements—of Texas’ HB 2.

“Absolutely,” Ryan said in response to Tasy’s remarks. “I agree with that.”

But the provisions of the law in question were not about keeping anybody safe. As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

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Despite this, Ryan then used the falsehood at the center of HB 2 as a call to action for yet another anti-choice restriction: the Conscience Protection Act. After fielding the question from Tasy about how anti-choice issues could be advanced in Congress in the wake of the Court’s decision, Ryan pivoted to claim that the government is “forcing people to conduct [abortion] procedures”:

Actually, tomorrow we are bringing a bill that I’ve been working on called the Conscience Protection Act. I’m pro-life. I think you probably know that. And I would like to think we could at least get consensus in this country that taxpayers shouldn’t be funding abortions. That the government shouldn’t be forcing people to conduct procedures, especially health-care workers, against their own conscience.

Our First Amendment is the right of conscience, religious freedom. Yet our own government today, particularly in California, is violating that right and not allowing people to protect their conscience rights, whether they’re Catholic hospitals or doctors or nurses. Tomorrow we’re bringing the Conscience Protection Act to the floor and passing it. It’s Diane Black’s bill. And it is to give those citizens in America who want to protect their conscience rights their ability to defend those rights. That is one thing we’re doing tomorrow to protect the conscience, because I believe we need to cultivate a culture of life. And at the very least, stop the government from violating our conscience rights.

Ryan would go on to make similar remarks the next day while speaking on behalf of the bill on the House floor, though this time he added that the “bill does not ban or restrict abortion in any way …. All it does is protect a person’s conscience.” 

As Rewire‘s Christine Grimaldi previously reported, the Conscience Protection Act would codify and expand on the Weldon Amendment. According to the Department of Health and Human Services (HHS), the amendment prohibits states that receive federal family planning funding from discriminating against any health care entity-including physicians, health-care professionals, hospitals, and insurance plans, “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”

The Weldon Amendment currently must be passed each year as part of annual appropriations bills.

Grimaldi noted that the act “would give health-care providers a private right of action to seek civil damages in court, should they face alleged coercion or discrimination stemming from their refusal to assist in abortion care.”

Ryan proposed similar conscience protections as part of his recently released health-care plan, though, as Grimaldi wrote, “the Conscience Protection Act goes a step further, allowing providers to sue not only for threats, but also for perceived threats.”

But those whom Ryan and his colleagues are claiming to defend already have protections that impede access to abortion care, according to critics of the measure.

Ryan, for example, suggested in both his CNN appearance and his House floor speech the next day that California’s requirement that insurance plans must cover elective abortions under “basic health services” violates “religious freedom.” But a June investigation by the HHS Office for Civil Rights into whether California’s requirement violated the Weldon Amendment rejected similar complaints by anti-choice group Alliance Defending Freedom.

“Let’s be very clear—right now, current law says that hospitals, insurers, and doctors may refuse to perform an abortion or provide coverage for abortion, which already greatly limits women’s access to legal procedures,” said Rep. Jan Schakowsky (D-IL) Wednesday, speaking after Ryan on the House floor during remarks before the Conscience Protection Act passed.

“More importantly, when a woman’s health is in danger, providers would not be required to act to protect the health of that mother. This bill would allow them to refuse to … facilitate or make arrangements for abortion if they have a moral objection to it,” continued Schakowsky. “They could also refuse to provide transportation to another hospital if a woman is in distress if that hospital provides abortions.”

Debra L. Ness, president of the National Partnership for Women & Families, explained in a statement following the passage of the legislation in the House that the measure is about blocking access to abortion. “The Conscience Protection Act is dangerous, discriminatory legislation designed to block women’s access to abortion care,” said Ness.

“For example, a hospital could rely on the Conscience Protection Act to turn away a woman in an emergency situation who needs an abortion or refuse to provide a woman information about her treatment options. This legislation is a license for providers to discriminate against women and undermine their access to essential, constitutionally protected health care,” Ness said.